text:
    Mary McCRAINE v. HONDO BOATS, INCORPORATED and Anchor Marine, Incorporated.
    No. 13629.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 6, 1980.
    Writ Granted Dec. 5, 1980.

      Charles R. Moore, Moore & Walters, Baton Rouge, for plaintiff-appellant Mary McCraine.
    Vance Andrus, Fontenot, Andrus & Preis, Lafayette, for defendant-appellee Hondo Boats, Inc.
    Lawrence Anderson, Anderson & Anderson, Stephen R. Wilson, Keogh & Keogh, Baton Rouge, for defendant-appellee Anchor Marine, Inc.
    Ralph Brewer, Brewer & McKay, Baton Rouge, for defendant-appellee Robert S. Richardson.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

Plaintiff, Mary McCraine, appeals a trial court judgment maintaining defendants’ peremptory exception of prescription and dismissing her suit as to all defendants. We affirm.

In her original petition, plaintiff alleged that on May 21, 1978, she was a passenger in a boat manufactured by Hondo Boats, Inc., which had been sold to Anchor Marine, Inc., and subsequently to Robert S. Richardson (who was later made an additional defendant). Plaintiff further alleged that the boat was traveling in the Amite River Diversion Canal, part of the intercoastal waterway and a navigable waterway of the United States. The gravamen of plaintiff’s suit was that as the boat accelerated, it struck the wake from another vessel which caused plaintiff to fall against the exposed engine and receive burns.

On August 2, 1979, suit was filed. Plaintiff sought damages of $480,000 on the ground that the boat as designed was defective and dangerous and stated that the claim made was within the admiralty and maritime jurisdiction of the United States and was filed in state court under authority of the “saving to suitors” clause.

Hondo Boats filed an exception of prescription on the ground that plaintiff’s suit had not been brought within the one year period provided by LSA-C.C. Art. 3536. Hondo also urged that the matter was not in admiralty and that therefore Louisiana prescriptive law, rather than the doctrine of laches, would apply. Anchor Marine and Richardson joined in the exception.

After hearing the exception, the trial court found that the action was not in admiralty and that it had prescribed under state law. Suit was dismissed as to all defendants.

On appeal, the sole issue is whether or not the action is one in admiralty.

The landmark case of Executive Jet Aviation, Inc. v. City of Cleveland, Ohio, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972), modified the longstanding rule that "Every species of tort, however occurring, and whether on board a vessel or not, if upon the high seas or navigable waters, is of admiralty cognizance.” The Plymouth, 70 U.S. (3 Wall.) 20, 18 L.Ed. 125 (1866). Executive Jet held that for a maritime tort to fall within the admiralty jurisdiction, there must be 1) maritime locale and 2) a significant relationship to traditional maritime activity.

Kelly v. Smith, 485 F.2d 520 (5th Cir. 1973), listed factors to consider in deciding whether an activity is traditionally maritime. They include:

1. the functions and roles of the parties;
2. the types of vehicles and instrumen-talities involved;
3. the causation and type of injury;
4. traditional concepts of the role of admiralty law.

No precise delineation of admiralty’s jurisdictional limits has been formulated. Nor has an exhaustive and all inclusive list of the actions falling within admiralty been compiled. While most of the operational and service concerns of the commercial shipping industry are clearly in admiralty, other areas, such as the products liability case presently at issue, are doubtful. An excellent explanation of why some matters fall into admiralty while others do not is given by Gilmore and Black:

“Whether a given inclusion within or exclusion from the jurisdiction is warranted must depend on the general sense and policy of having the jurisdiction at all. It is hard to think of any better reason for having this jurisdiction than its aptness for providing a special-industry court for the maritime industry.” The Law of Admiralty, 2d Ed., Sec. 1-10, (1975).

In the present case, the small pleasure craft in which plaintiff was injured was traveling on navigable waters but was neither in commerce nor for hire. Plaintiff was a passenger injured by an allegedly defectively designed engine without a protective cover. There was no causation external to the vessel. Nor were any rules of the road or conditions of the canal involved.

Pleasure boat accidents may be in admiralty when traditional maritime concerns such as commerce, navigation and navigational hazards are involved. Armour v. Gradler, 448 F.Supp. 741 (W.D.Pa.1978); Kayfetz v. Walker, 404 F.Supp. 75 (D.C.Conn.1975). Absent such traditional concerns, pleasure boat accidents tend to be excluded from admiralty. Richardson v. Foremost Insurance Company, 470 F.Supp. 699 (M.D.La.1979); Roberts v. Grammer, 432 F.Supp. 16 (E.D.Tenn.1977); Crosson v. Vance, 484 F.2d 840 (4th Cir. 1973).

The trial judge found there was not a sufficient relationship to traditional maritime activities to satisfy the second requirement of Executive Jet. We agree. This case involves nothing more than a products liability claim. That the harm complained of occurred on a pleasure craft is of no moment considering the pertinent facts.

Louisiana procedural law and not the doctrine of laches controls. Because plaintiff filed suit more than one year after her injury, defendants’ plea of prescription was properly maintained.

The trial court judgment is affirmed. All costs, both trial and appellate, are to be paid by Mary McCraine.

AFFIRMED.

      . 28 U.S.C.A. § 1333 provides in part:
      “The district courts shall have original jurisdiction, exclusive of the courts of the States, of:
      (1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled.”

      . When suit is brought in state court, the general maritime law controls, with exceptions. Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970); Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143 (1953); Garrett v. Moore-McCormack Co., 317 U.S. 239, 63 S.Ct. 246, 87 L.Ed. 239 (1942). The doctrine of laches has consistently been treated as a substantive right and it therefore controls in maritime suits brought in state courts, state statutes of limitation notwithstanding. Hill v. W. Bruns & Company, 498 F.2d 565 (2nd Cir. 1974); Oroz v. American President Lines, 259 F.2d 636 (2nd Cir. 1958); Guidry v. Chevron Oil Company, 366 So.2d 979 (La.App. 1st Cir. 1978).


source: Caselaw Access Project

author: PONDER, Judge.

license: Public Domain

text:
    Montie A. SORRELLS et al. v. M. L. STEVENS et al.
    No. 13630.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 6, 1980.
    Rehearing Denied Dec. 15, 1980.
    Thomas A. Lane, Baton Rouge, for plaintiffs-appellees Montie A. Sorrells and State Farm Fire and Casualty Co.
    James F. Abadie, Baton Rouge, for defendant-appellant M. & L. Development.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

Defendants appealed the judgment awarding damages caused by the fall of a large dead tree.

The issues are: liability of the vendor of a house and lot; contributory negligence of the vendee and assumption of risk of the vendee.

We affirm.

Plaintiff purchased from defendant M. L., Inc., a house on a lot containing several trees during the winter months. When spring came, plaintiff discovered a large tree in the back yard was dead. Plaintiff notified defendant twice by letter and once by telephone of the condition of the tree and requested its removal. Defendant told plaintiff during the telephone conversation that he would get an estimate for felling the tree. That same evening, during a storm, the tree fell on plaintiff’s house and caused extensive property damage. Inspection of the fallen tree revealed it had been dead for some time, and was certainly dead at the time of the sale. Plaintiff, Sorrells, filed suit against M. L., Inc. and its principal officer, M. L. Stevens. Thereafter, plaintiff’s property insurer, State Farm Fire and Casualty Company, brought suit for the recovery of $2,647.83 paid to repair the house. The companion suit was settled prior to trial.

The trial court applied the doctrine of strict liability under the rationale of Cardwell v. Jefferson Rentals Division, 379 So.2d 255 (4th Cir. 1979). We prefer to base our decision upon a breach of warranty.

A vendor warrants the thing sold against hidden defects or redhibitory vices. LSA-C.C. Arts. 2475, 2476. Hidden defects are those which cannot be discovered by simple inspection. LSA-C.C. Art. 2521. Redhibition is the avoidance of a sale on account of some defect in the thing which renders it so imperfect the buyer would not have purchased it had he known of the defect. LSA-C.C. Art. 2520. An action for the reduction of the price is included in the redhibitory action. LSA-C.C. Arts. 2541, 2542, 2543.

Under Article 2531, the seller is bound to repair the vices in the thing sold. Jurisprudence has interpreted this to mean that the vendee is entitled to be returned as nearly as possible to status quo at the time of the sale. Busenlener v. Peck, 316 So.2d 27 (La.App. 1st Cir. 1975).

We believe the large dead tree on the lot sold by defendant was a redhibitory vice which in the winter months could not be discovered by simple inspection. Because of this defect plaintiff suffered extensive property damage.

As plaintiff’s subrogee, State Farm is entitled to recover the amount for repairs ($2,647.83) required to return the property to the status quo at the time of the sale.

Even if contributory negligence or assumption of risk be applicable the plaintiff, relying upon what he felt was an obligation due him, informed vendor of the defect and depended upon the vendor removing this defect. We do not consider this contributory negligence or assumption of risk.

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

AFFIRMED.


author: EDWARDS, Judge.

text:
    Julius P. GUEDRY v. FIREMEN’S FUND INSURANCE COMPANY, Robert Thompson, General Cinema Corp. of Louisiana, General Cinema Corp., and William Wilson, Jr.
    No. 13636.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 6, 1980.
    Rehearing Denied Dec. 15, 1980.
    Writ Refused Feb. 13, 1981.

      David L. Ray, Alfred McCaleb, Baton Rouge, for plaintiff-appellant, Julius P. Guedry.
    Robert M. Johnston, New Orleans, Leonard L. Kilgore, III, Baton Rouge, for defendants-appellees, Firemen’s Fund Insurance Co. and Robert Thompson.
    G. Thomas Arbour, James C. Lopez, Baton Rouge, for defendants-appellees, General Cinema Corp.; General Cinema Corp. of Louisiana and William Wilson.
    Richard Creed, Baton Rouge, for defendants-appellees, Alford Safe and Lock Co. and U.S.F. & G.
    Donald Weber, Baton Rouge, for defendant-appellee, Alford Safe and Lock Co.
    George LeGrand, Michael P. Hantel, New Orleans, for defendant-appellee, Firemen’s Fund Insurance Co. as intervenor Work-mens Compensation.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

Julius P. Guedry brought suit against Firemen’s Fund Insurance Company, Robert Thompson, General Cinema Corp. of Louisiana, General Cinema Corp., William Wilson, Jr., Alford Safe & Lock Company and United States Fidelity & Guaranty Company. Plaintiff sought $1,500,000 for back injuries allegedly suffered while helping to move a safe up a flight of stairs in a building under construction.

Following trial, a jury verdict finding all the defendants not negligent was made the judgment of the trial court. Plaintiff’s suit was dismissed at his costs including $1,100 in expert witness fees.

From that judgment, plaintiff appeals, specifying two basic errors:

1) The jury instructions given were improper, confusing and misleading.
2) The jury verdict was contrary to the evidence.

Appellant complains of numerous instructions both given to and withheld from the jury. A meaningful jury trial includes proper instructions by the court. Adequate instructions are those instructions which fairly and reasonably point up the issues presented by the pleadings and evidence and which provide correct principles of law for the jury’s application thereto. Hanks v. Drs. Ranson, Swan & Burch, Ltd., 359 So.2d 1089 (La.App. 3rd Cir. 1978).

In this case, while we cannot say with certainty that the jury instructions were such as would mislead the jury as to the law or to the application of the law to the facts, it may be that the trial court’s refusal to use LSA-R.S. 23:13 as a jury charge was error.

In any event, under Gonzales v. Xerox Corporation, 320 So.2d 163 (La.1975), we have the entire record before us for review and a searching examination of that record convinces us that the jury findings were correct. We find none of the defendants negligent and therefore need not consider the matter of contributory negligence.

For the foregoing reasons, the trial court judgment is affirmed. All costs, both trial and appellate, are to be paid by Julius P. Guedry.

AFFIRMED.


author: LOTTINGER, Judge.

text:
    Michael R. BRAUD v. STATE of Louisiana.
    No. 13639.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 6, 1980.
    Ralph L. Roy, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee State of Louisiana.
    A. Foster Sanders, III, Baton Rouge, for defendant-appellant Michael R. Braud.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

This is a suit by the State of Louisiana to have the defendant, Michael R. Braud, declared an habitual offender because of three DWI convictions and to have his license revoked and his driving privileges suspended. From a judgment in favor of the State, the defendant has appealed.

The issue before this court is whether La.R.S. 32:1472(A) requires the accumulation of three DWI offenses and ten moving violations before an offender’s license can be revoked. Also at issue is whether the defendant’s due process rights were violated because of the trial court’s interpretation of the statute.

La.R.S. 32:1472(A) in part provides:

“A. A habitual offender shall be any person, resident or non-resident, whose record, as maintained in the office of the Department of Public Safety shows that such person has accumulated the convictions for separate and distinct offenses described in the following Paragraphs (1) and (2) of this Subsection, committed during a five-year period, provided that where more than one included offense shall be committed within a twelve-hour period such multiple offenses shall be treated for the purposes of this Chapter as one offense:
“(1) Three or more convictions, singularly or in combination of any of the following separate and distinct offenses arising out of separate acts:
* * * * * *
“(b) Operating or attempting to operate while under the influence of intoxicating liquor or drugs, operating or attempting to operate while impaired by the use of intoxicating liquor or drugs or operating or attempting to operate while intoxicated by the use of intoxicating liquor or drugs;
******
“(2) Ten or more convictions of separate and distinct offenses involving moving violations singularly, or in combinations, in the operation of a motor vehicle which are required to be reported to the Department of Public Safety. Such convictions shall include those offenses enumerated in Paragraph (1) when taken with and added to those offenses described.”

The defendant-appellant argues that under the provisions of Section 1472 “a person must have three convictions of any of the offenses listed in paragraph 1 and at least ten convictions of moving violations, which can include the three convictions satisfying paragraph 1.” Such an interpretation would, of course, emasculate the provisions and purpose of Section 1472, which was enacted by the legislature to prevent three-time DWI offenders and other serious driving offenders from driving on the highways. The defendant contends that the statute is clear and free from ambiguity in requiring the accumulation of offenses under paragraphs 1 and 2 before a license can be revoked. He asserts that the legislature could easily have provided for non-accumulation by insertion of the word “or” between paragraphs 1 and 2 or by some other similar grammatical change.

These arguments were made in State v. Lattier, 377 So.2d 450 (La.App. 2nd Cir. 1979) and were rejected by that court, which found that requiring accumulation of offenses would defeat the purpose of the statute. We agree with the reasoning of our brethren on the Second Circuit.

The defendant’s due process argument is equally untenable. While due process is required before a driver’s license may be revoked, State v. Page, 332 So.2d 427 (La.1976), we do not agree with the defendant’s argument that the statute is so unconstitutionally vague as to violate his due process rights. In State v. Page, supra, Mr. Justice Calogero wrote in a footnote at 332 So.2d 428 that subparagraphs 1 and 2 of Section 1472(A) were alternate and distinct offense categories. There is no merit to the defendant’s plea.

Therefore, for the above and foregoing reasons, the judgment of the trial court is affirmed at defendant-appellant’s cost.

AFFIRMED.


text:
    Lucille H. SCOTT v. STATE of Louisiana, etc.
    No. 13753.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 6, 1980.
    Robert W. Stratton, Baker, for plaintiff-appellant Lucille H. Scott.
    Donald S. Zuber, Baton' Rouge, for defendants-appellees Dr. Cary M. Dougherty, St. Paul Fire & Marine Ins. Co.
    Arthur H. Andrews, Baton Rouge, James Ryan, III, New Orleans, for defendants-ap-pellees Employers Mut. Liability Ins. Co. of Wisconsin, Dr. Joseph T. Ryan.
    Lucas S. Conner, Jr., Baton Rouge, for defendant-appellee State of Louisiana.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

This appeal was fixed for argument and all attorneys, of record were notified. At the time scheduled for argument, the appellant was not present or represented, nor had any brief been filed on behalf of appellant, nor had any motion been filed for continuance.

On authority of Rule VII, Section 5(b), this Court, EX PROPRIO MOTU, considers this appeal as abandoned; therefore, it is ordered that this appeal be dismissed with prejudice.

APPEAL DISMISSED.


author: REDMANN, Judge.

text:
    Sherrie H. SCOTT v. Lee DENNIS et al.
    No. 11237.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 23, 1980.
    Charles S. McCowan, Jr., John Dale Powers, Gary Z. Bezet, Sanders, Downing, Kean & Cazedessus, Baton Rouge, Anthony A. Fernandez, Jr., Chalmette, for plaintiff-appellant.
    John F. Rowley, Dist. Atty., Nunzio S. Cusimano, Jr., Marcel J. Gueniot, Asst. Dist. Attys., 34th Judicial Dist. Court, Parish of St. Bernard, Chalmette, for defendants-ap-pellees.
    John F. Ward, Jr., Robert L. Hammonds, Baton Rouge, amicus curiae.
    Before REDMANN, SCHOTT and GARRISON, JJ.
   REDMANN, Judge.

Sherrie H. Scott was an employee of the St. Bernard Parish school board. For the three years prior to her taking a sabbatical leave, her duties were to teach reading at Borgnemouth elementary school. When she returned from her leave, she was assigned to teach language at Borgnemouth. She seeks to oblige the board to assign her to teach reading, and appeals from the district court’s refusal of mandamus.

The issue is the meaning of La.R.S. 17:1182’s provision for return “to the same position.” Plaintiffs argument is that her pre-leave position was that of “reading teacher” and that R.S. 17:1182 obliges the board to return her to the duties of teaching reading. We interpret position to mean that of teacher (or assistant principal, for example). We therefore affirm.

Sabbatical leaves were created by La. Acts 1940 No. 319 and § 11 of that Act is the word-for-word source of today’s R.S. 17:1182. The intent of the 1940 Act, as declared by its title, was “To provide sabbatical leaves ... and to preserve the status of teachers during said leave .... ” La.Const.1921 art. 3 § 16 required for every act a “title indicative of its object” (as does La.Const.1974 art. 3 § 15(A)), and from this requirement flows the statutory construction rule that an act is to be interpreted consistently with its title rather than “construed into unconstitutionality,” State v. Banks, 1901, 106 La. 480, 31 So. 53. The constitution’s title-body clause is liberally construed, Louisiana Independent Auto D. Assn. v. State, La.1975, 295 So.2d 796, but does invalidate “extraordinary subject matter” in the body of an act unless indicated in the title, Terrebonne Par. P. J. v. Board of Com’rs, La.1976, 306 So.2d 707.

Because the basic teacher tenure law does not give a teacher tenure as a teacher of a specific subject, an express provision that a teacher returning from sabbatical had the right to teach the same subject would constitute a benefit beyond the basic tenure law and thus beyond Acts 1940 No. 319’s purpose of “to preserve the status of teachers during [sabbatical] leave.” Such a provision would go beyond the title and would not preserve the status of the leave-taking teacher, but would create a new status not available to the teacher who stays at school and works. That would be “extraordinary subject matter” in an act to “preserve” the leave-taking teacher’s status and would pose a serious question of constitutionality. Yet plaintiffs interpretation of R.S. 17:1182’s “same position” as meaning the same teaching assignment would pose the same constitutional question: she would have greater rights than a teacher who did not take leave, and her status would be enhanced rather than preserved. We therefore cannot so construe “position” because to do so would invalidate that provision of the statute.

Plaintiff argues that R.S. 17:1182 is superfluous if it means only that the teacher returns to be a teacher. § 1183 provides a leave-taker shall have “all the rights and privileges pertaining to his position and employment which he would have enjoyed had he not taken his leave .. .,” and the basic tenure law insures that a teacher cannot be fired or demoted except for cause. Yet this very argument reveals the unreasonableness of plaintiff’s view in its insistence that the leave-taker is to have not merely “all the rights” but greater rights than “had he not taken his leave.”

Our conclusion is that plaintiff’s position was that of teacher rather than teacher of any specific subject, and that defendants did not violate R.S. 17:1182 in changing her assignment on her return from sabbatical.

Affirmed.


author: SAMUEL, Judge.

text:
    FRANKLIN PRINTING COMPANY, INC. v. SCOTT FENCE OF NEW ORLEANS, INC.
    No. 10892.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 12, 1980.
    Rehearing Denied Jan. 19, 1981.

      Fiasconaro & Fiasconaro, Paul S. Fiasco-naro, New Orleans, for plaintiff-appellee.
    Babovich, McDowell & Bukaty, Edward F. Bukaty, III, New Orleans, Vincent Cuc-cia, Metairie, for defendant-appellant.
    Before SAMUEL, GULOTTA and SCHOTT, JJ.
   SAMUEL, Judge.

By this suit on an open account plaintiff seeks recovery of the sum of $7,201.95, representing the balance due for printing 55,-000 brochures for the defendant. Defendant’s answer denies liability. Defendant also filed a third party demand against A. J. LeNormand alleging, alternatively in the advent of an adverse judgment, that Le-Normand was liable with plaintiff for his virile one-half of the judgment as a partner in a partnership which was to operate as Scott Decors. LeNormand’s answer to the third party demand is in the form of a general denial.

After trial on the merits, judgment was rendered in favor of plaintiff and against the defendant, Scott Fence of New Orleans, Inc., for $7,201.95, plus $1,250 attorney’s fees, and in favor of LeNormand, dismissing Scott Fence’s third party demand. Scott Fence has appealed. Plaintiff has answered the appeal seeking to have its attorney’s fee increased from $1,250 to $2,500 and also seeking an additional attorney’s fee of $1,500 for services on appeal. In this court appellant does not contest its liability to the plaintiff; it seeks only reversal of that part of the judgment which dismisses its third party demand against LeNormand.

Kirby Scott, defendant’s president, did not appear at the trial. He telephoned to inform the court he was ill, and the court agreed to continue the proceeding if a physician’s certificate was furnished. No such certificate was furnished, and the case proceeded to trial.

In place of Kirby Scott, Scott Fence called Wayne Babovich, the attorney for that defendant during the time of the alleged partnership between Scott Fence and LeNormand. Mr. Babovich testified an enterprise to be known as Scott Decors was to have been incorporated, but the articles of incorporation were never filed. His instructions from Kirby Scott were that the stock in the new corporation was to be issued to Scott Fence and LeNormand. Ba-bovich further testified he understood through discussions with Kirby Scott and LeNormand that there was to be a sharing of the profits and losses in Scott Decors; that the articles of incorporation were never filed because LeNormand was in the process of going through a legal separation from his wife and did not want the new business to be involved in the community; but nevertheless, LeNormand continued to receive money for efforts by him in furtherance of the business of the planned corporation.

LeNormand testified: He was not paid any money as a partner of Scott Decors, but instead was paid as a carpenter subcontractor by Scott Fence. He would begin to share profits only when Scott Decors was incorporated, and the incorporation process came to a standstill when he refused to sign a lease which would have given Kirby Scott a right of way over his land adjacent to Scott’s. He insisted that because of his pending separation proceeding he would not have entered into a partnership, corporation, or any other kind of business venture.

In Louisiana the existence of a partnership requires: (1) a sharing in the profits and losses of a business enterprise; (2) mutual consent to form a partnership; and (3)the property of, or stock in, the enterprise must form a community of goods in which each party has a proprietary interest.

The only testimony furnished by defendant with regard to the mutual consent of the parties to form a partnership was the testimony of Scott’s attorney, and he is a third person testifying on a matter requiring the mutual consent of two other parties, one of whom was not his client. Moreover, his testimony is rendered almost meaningless in view of the clear and emphatic testimony of LeNormand. Kirby Scott’s absence from the trial was sufficient to create a presumption that any testimony he had to offer would have been against his own self interest.

In addition, defendant did not prove a community of goods in which each party to the alleged partnership had a proprietary interest. Scott Fence argues LeNormand furnished his skill in building planters as his contribution to the partnership and Scott Fence furnished all materials and marketing techniques. But the record indicates LeNormand was paid $250 per week by Scott Fence and not by Scott Decors.

In Collom v. Bruning, the plaintiff sought to recover his share of profit from a business he alleged to be a partnership between himself and the defendant by reason of an oral contract of partnership. The defendant claimed there was no partnership and that plaintiff was employed for a fixed salary of $50 per month. The Supreme Court found for the defendant, stating:

“.. .. Partnership is a special contract, dependent for its creation upon the consent of the parties (Rev.Civ.Code, art. 2805) that that particular relation should be established between them. The mere fact that two persons may both be interested pecuniarily in the same business venture, and that each gave to it equally his time and attention, by no manner of means carries with it, as a matter of law, the conclusion that they stand towards each other as partners. Consent shown by one person, who has furnished the capital by which certain operations are carried on, that another, who has employed his time, his skill, and his services for their success, should receive one-half of the profits to be derived from the same, is perfectly consistent with the fact that the latter person stands towards the former as a mere employee. Contracts of that character are formed every day, the extent of the participation in the profits varying in the different cases.”

In this case the trial judge stated that while there was much testimony concerning what would have been, no evidence was introduced to establish that any kind of partnership agreement came into existence. We agree that Scott Fence failed to prove the existence of a partnership between itself and LeNormand.

Nor, will be disturb the trial court’s award of attorney’s fees. That award is based on R.S. 9:2781 which provides for “reasonable” attorney’s fees in suits on open accounts. We cannot say the $1,250 award is unreasonable.

However, we are of the opinion the plaintiff-appellee is entitled to an additional attorney’s fee for representation in this court. As we have pointed out, in this court the appellant did not contest its liability to the plaintiff. But appellant did not limit its appeal to the third party demand, thus making it necessary for plaintiff to file a brief and appear for oral argument. We believe an additional attorney’s fee of $750 would be appropriate.

For the reasons assigned, the judgment appealed from is affirmed and the plaintiff-appellee is awarded an additional attorney’s fee of $750, thus making the total award for attorney’s fees the sum of $2,000.

AFFIRMED AND ADDITIONAL ATTORNEY’S FEES AWARDED.

      . LSA-C.C. Arts. 2801, 2805, 2813, and 2814; Sas Jaworsky v. LeBlanc, La.App., 239 So.2d 176.

      . See Ruthardt v. Tennant, 252 La. 1041, 215 So.2d 805.

      . 49 La.Ann. 1257, 22 So. 744, 747.


author: SCHOTT, Judge.

text:
    Sandra FREDERICK v. CAMPBELL “66” EXPRESS, INC. and ABC Insurance Company.
    No. 11343.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 12, 1980.
    Rehearing Denied Jan. 19, 1981.
    Leonard A. Young and Micheline V. Go-mila, Bienvenu, Foster, Ryan & O’Bannon, New Orleans, for defendant-appellee Campbell “66” Express, Inc.
    Glenn L. Morgan, New Orleans, for plaintiff-appellant.
    Before BOUTALL, SCHOTT and SAR-TAIN (assigned), JJ.
   SCHOTT, Judge.

This is a damage suit in which plaintiff, Sandra Frederick, alleges she was injured in a collision with a truck owned by defendant, Campbell “66” Express, Inc., and negligently operated by its agent. The accident allegedly occurred on July 28, 1975, and the suit was filed on July 28, 1976. After answer was filed, discovery devices were employed by the parties, and the case was successively set down for trial on December 2, 1976, when it was continued on joint motion of the parties, June 14, 1977, September 27, 1977, and November 2, 1977, when it was continued each time on plaintiff’s motions, and October 25,1978, when it was continued on defendants’ motion. Finally, on April 2, 1979, the case was scheduled for trial on May 14. On May 11, 1979, plaintiff moved to recuse the trial judge, Honorable S. Sanford Levy, on the grounds that he had an interest in the cause, was biased against plaintiff’s attorney, and was without authority to sit as a judge in the case.

On the morning of the trial the case was re-allotted to another judge of the Civil District Court for the sole purpose of trying the motion to recuse and the motion was denied by that judge. Neither plaintiff nor her attorney appeared in court for the trial of the motion or the trial of the merits. Accordingly, the trial judge dismissed plaintiff’s suit with prejudice.

Plaintiff filed a motion for a new trial on the principal ground that Judge Levy was without authority to decide her case and renewed her motion for recusation of the judge. The motion to recuse was again re-allotted to another judge of the Civil District Court who granted the motion to recuse but then denied plaintiff’s motion for a new trial. Plaintiff has appealed from these various judgments.

Plaintiff’s motion to recuse was properly denied. Her complaint about Judge Levy’s authority was disposed of in Small v. Guste, 383 So.2d 1011 (La.1980). Plaintiff has not suggested how Judge Levy may be interested in the cause so as to bring the case within the ambit of C.C.P. Art. 151(5) and her assertion that Judge Levy is biased against plaintiff’s attorney does not suggest any ground for recusation of the judge.

The principal issue in this case is whether plaintiff’s case was properly dismissed with prejudice. Dismissal was clearly authorized by C.C.P. Art. 1672 and the record shows that appellees were entitled to have the suit dismissed with prejudice. This case was specially fixed for trial as the first case on the docket on May 14. The notice, dated April 2, 1979, designates it as a special fixing and admonishes counsel that any request for a continuance had to be made within ten days from the date of the notice, and if the request for continuance was made thereafter, even though unopposed, the case would not be continued. Plaintiff filed no request for continuance but instead sought to recuse the trial judge. These efforts proved to be fruitless while plaintiff, in effect, abandoned her case on the merits.

Accordingly, the various judgments appealed from are affirmed at the cost of plaintiff.

AFFIRMED.


author: GULOTTA, Judge. REDMANN, Judge,

text:
    L. D. BRINKMAN & COMPANY, INC. v. C & J CARPETS, INC., et al.
    No. 12001.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 19, 1980.
    Rehearing Denied Jan. 19, 1981.

      Craig R. Nelson, New Orleans, for relator.
    Henry F. Mestayer, New Orleans, for respondent.
    Before REDMANN, GULOTTA, BOU-TALL, GARRISON and CHEHARDY, JJ.
   GULOTTA, Judge.

WRIT OF MANDAMUS

In this Writ Application relator, the fire and extended coverage insurer of defendant, seeks to set aside the trial court’s judgment denying relator’s motion to dissolve a Writ of Attachment seizing the proceeds of the amount of the fire and extended coverage policy issued to C & J Carpets, Inc. This suit by L. D. Brinkman & Company, Inc. is on an open account for payment of the amount due for merchandise sold to defendant and destroyed in a fire on defendant’s premises. In a supplemental and amended petition, plaintiff alleges that relator, Sentry Insurance Company, had in existence a fire and extended coverage policy covering the destroyed merchandise sold to defendant by plaintiff. This petition further alleges that Sentry “has funds in its possession belonging to defendant” as a “result of defendant’s loss of certain assets which were insured by Sentry Insurance Company and for which defendant had made claim.” Plaintiff further alleges that C & J Carpets “is about to assign or dispose” of the proceeds of policy in defraud of its creditors.

According to the relator-insurer, no claim has yet been filed by the insured, C & J Carpets, Inc., to recover the proceeds under the fire policy. Furthermore, relator asserts that the fire is under investigation for expected arson, and there exists a question whether the claim, if made, will be honored. Relator points out that it is not a debtor of plaintiff or defendant, but is only the fire and extended coverage insurer of the defendant.

In a response to the writ application, plaintiff points out that relator is not a defendant in this action and by the terms of LSA-C.C.P. art. 3506 relator does not have proper standing to bring a motion to dissolve the attachment.

We find no merit to this contention. If we were to follow respondent’s argument to its logical conclusion, any party, other than a defendant, against whom a writ of attachment has been issued would be powerless to seek dismissal of an admittedly improvidently issued writ of attachment. In Hunt v. Fireman’s Fund Ins. Co., 345 So.2d 1235 (La.App. 1st Cir. 1977), in an automobile accident case the court was confronted with a question of jurisdiction over an out-of-state insurer where jurisdiction was sought (through a writ of attachment) of the proceeds of a liability insurance policy issued in the name of the defendant insured who was a non-resident of this state. The. insurer sought to dissolve the attachment. One of the questions raised in the Hunt case was whether the insurer, not a defendant in that case, was “without standing” to dissolve the attachment. In holding that the insurer had every right to move for dissolution of the writ of attachment, the Hunt court stated:

“While the policy does agree to pay certain sums up to its limits, and to defend Lindsey [defendant], U.S.A.A. is not required to pay until its insured is cast and it is not required to defend unless its insured is required to defend.... U.S. A.A. had every right to object to any effort to exercise jurisdiction over one of its policy holders and must be considered as a defendant within the meaning of C.C.P. art. 3506 with standing to seek dissolution of the subject writ of attachment.” (Underline ours.)

Although the Hunt case is factually distinguishable from ours, we are in agreement with the conclusion reached by the court that an insurer, though not a defendant, against whom a writ of attachment has been issued by virtue of the existence of an insurance policy, has a right to seek dissolution of the writ.

We do not find that First Nat. Bank v. Ft. Wayne Artificial Ice Co., 105 La. 133, 29 So. 379 (La.1900), is authority for respondent’s contention that our relator insurer is without standing to seek dissolution of the writ. In the cited Supreme Court case, the ownership of certain immovable property which had been sold by the defendant to a third party was attached by the plaintiff. The Supreme Court did say in that case that the third-party’s rights were confined to a proof of ownership of the property and not to the irregularity of the proceedings. However, this case is distinguishable from our case. The issue in the cited case was the ownership of property sought to be attached. Property has not been seized in our case. The unclaimed proceeds of an insurance policy are sought to be attached. Our case is substantially and materially different from the cited case.

Accordingly, we. hold that relator, Sentry Insurance Company, is a proper party and has standing to move for dissolution of the Writ of Attachment. On the showing made in the application and response, we conclude the Writ of Attachment was erroneously and improvidently granted. Accordingly, it is ordered that the judgment of the trial court maintaining the Writ of Attachment is rescinded, annulled and set aside. The matter is remanded to the trial court for further proceedings consistent herewith.

RESCINDED, ANNULLED, SET ASIDE AND REMANDED.

REDMANN, J., dissents and assigns reasons.

REDMANN, Judge,

dissenting.

Because relator has suffered and can suffer no injury from the “attachment,” I would refuse writs in the first place.

The majority’s grant, however, obliges me to express the view that relator, a third party, has no standing to question the technical validity of a seizure of property belonging not to itself but to defendant. Relator has no standing whether the seizure occurs under attachment before judgment or under fieri facias after judgment on the main demand. If, on the contrary, property of relator had been seized, it would be hy-pertechnical to refuse relief on the theory that the complaining pleading was improperly labeled.

The fact remains that nothing of relator has been seized, and it is not relator’s place to raise technical arguments about the propriety of the seizure of defendant’s claim.

      . LSA-C.C.P. Art. 3541(2) reads as follows: “Art. 3541. Grounds for attachment.
      A writ of attachment may be obtained when the defendant:
      ******
      (2) Has mortgaged, assigned, or disposed of his property or some part thereof, or is about to do any of these acts, with intent to defraud his creditors or give an unfair preference to one or more of them; * * * ”

      . LSA-C.C.P. art. 3506 reads as follows:
      “Art. 3506. Dissolution of writ; damages.
      The defendant by contradictory motion may obtain the dissolution of a writ of attachment or of sequestration, unless the plaintiff proves the grounds upon which the writ was issued. If the writ of attachment or of sequestration is dissolved, the action shall then proceed as if no writ had been issued.
      The court may allow damages for the wrongful issuance of a writ of attachment or of sequestration on a motion to dissolve, or on a recon-ventional demand. Attorney’s fees for the services rendered in connection with the dissolution of the writ may be included as an element of damages whether the writ is dissolved on motion or after trial on the merits.”

      . LSA-C.C.P. arts. 1092 (In pertinent part), and 3509 read as follows:
      “Art. 1092. Third person asserting ownership of, or mortgage or privilege on, seized property.
      A third person claiming ownership of, or a mortgage or privilege on, property seized may assert his claim by intervention. If the third person asserts ownership of the seized property, the intervention may be filed at any time prior to the judicial sale of the seized property, and the court may grant him injunctive relief to prevent such sale before adjudication of his claim of ownership. * * * ”
      “Art. 3509. Release of property by third person.
      When property seized under a writ of attachment or of sequestration is in the possession of one not a party to the action, he may intervene in the action and, upon prima facie showing that he is the owner, pledgee, or consignee of the property, have the property released by furnishing security in the manner and amount, within the same delay, and with the same effect as a defendant.”


author: MARVIN, Judge.

text:
    Denny Fred SMITH and Barbara Hamm Smith, Plaintiffs-Appellants, v. Robert S. KENNEDY and Katie Sanford Kennedy, Defendants-Appellees.
    No. 14349.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 2, 1980.
    Paul Henry Kidd, Monroe, for plaintiffs-appellants.
    Theus, Grisham, Davis & Leigh by Brian E. Crawford and J. Bachman Lee, Monroe, for defendants-appellees.
    Before PRICE, HALL and MARVIN, JJ.
   MARVIN, Judge.

In this redhibitory action, the purchasers of a residence appeal the rejection of their demands founded upon the residence’s being flood-prone or susceptible to flooding. Davis v. Davis, 353 So.2d 1060 (La.App. 2d Cir. 1977), writ refused. Defendants had earlier purchased the residence as their home. We affirm.

A house’s susceptibility to flooding is a redhibitory defect. Davis, supra; Ford v. Broussard, 248 So.2d 629 (La.App. 3d Cir. 1971); Cox v. Moore, 367 So.2d 424 (La.App. 2d Cir. 1979), writ denied. The trial court here, however, found that the 1975 flooding, three years before the sale, resulted from an extraordinary six inch rainfall in a short time when “hundreds of residences and businesses in [the] general area were inundated” and that the 1978 flooding, a few weeks after the sale, was a disaster, which resulted from an even more extraordinary 9"-ll" rainfall in a six-hour period, when “thousands of homes and businesses in substantial areas of Monroe and West Monroe were inundated.”

Witnesses called the 1975 rain a “once-in-75-years” occurrence and the 1978 rain a “once-in-200-or-500-years” occurrence.

Each party conducted negotiations through respective real estate agents. The sellers’ agent said the subject of flooding did not arise and that he did not mention the 1975 flooding because it was a most unusual occurrence. The buyers’ agent testified that she had heard of the 1975 flooding but that she did not know of any history of flooding of this particular house. The buyers’ agent denied that the buyers asked her to seek information about such a history.

The trial court found that the sellers did not suppress facts, mislead, or entrap the buyers by failing to declare what a seller is legally required to declare. The trial court held that extraordinary rainfall, or unusual flooding, in 1975 did not create a duty on the part of the sellers to declare that flooding as a redhibitory defect.

We agree. The redhibitory defect is not the fact of flooding under extraordinary rainfall, but the susceptibility to flooding.

Susceptibility, as we used and understood that term in Davis, was used in the sense of propensity, proneness, or predisposition. It is possible, of course, that any home will flood under extraordinary rainfall. This is evident by the testimony that hundreds or thousands of homes in a widespread area flooded in the extraordinary rainfalls in 1975 and 1978 around Monroe.

One of the buyers’ experts agreed that rainfalls of 100-year occurrence probably should not be used to determine susceptibility of flooding even though some authorities had placed the area surrounding the buyers’ home in a “flood zone”.

In determining susceptibility to flooding, each circumstance of the particular case must be considered in relation to all other circumstances. Extraordinary rainfall may occur every few decades, but this circumstance, as it affects a particular house or subdivision, must be viewed likewise in comparison with its effect on a more widespread area. Whether a residence is susceptible of flooding will be determined by the peculiar circumstances of each case and not solely by the fact of flooding.

For reasons assigned below and summarized here, and at appellants’ cost, judgment is AFFIRMED.


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

text:
    Betty Stutts ASHLEY, Plaintiff-Appellant, v. Wayne E. GASPER, Defendant-Appellee.
    No. 14360.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 2, 1980.
    En Banc. Rehearing Denied Jan. 13, 1981.

      Nesib Nader, Samuel V. Prunty, Jr., Shreveport, for plaintiff-appellant.
    Colvin, Hunter, Brown, Plummer & Means by D. Scott Brown, Mansfield, for defendant-appellee.
    Before PRICE, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   FRED W. JONES, Jr., Judge.

Plaintiff-mother filed a rule in March, 1980 against her former husband to secure a change of custody of their 8 year old daughter. From a judgment rendered on April 23, 1980 dismissing her action, the plaintiff appealed. We affirm.

According to the record, plaintiff and defendant were married on June 21, 1970. One child, whose custody is the subject of this proceeding, was born of the marriage on August 16, 1971. On November 27,1972 defendant was granted a divorce from plaintiff on the ground of adultery and was granted custody of their daughter, who has remained in his custody since that time.

Defendant remarried in March, 1973. One child has been born of that marriage, which appears to be very stable. Defendant has worked for Beaird-Poulan in Shreveport for about five years and his wife has worked at Western Electric in Shreveport for some seven years. Their combined income, including odd jobs performed by defendant, exceeds $2,000 per month. At the time of the trial defendant worked a 3:30 p. m. to midnight shift and his wife worked a 7:00 a. m. to 3:30 p. m. shift. Since their marriage they have lived in a mobile home in a rural area of DeSoto Parish near the residence of defendant’s mother, who babysits with the children during those brief periods when both defendant and his wife are absent from their dwelling.

Testimony that the minor child has thrived in the custody of her father was unrefuted. She presented the appearance of being well-adjusted and in excellent health. The principal of her school, where she is in the third grade, testified that she was part of an accelerated learning group in her class, an indication of academic excellence.

About one month after her divorce from defendant, plaintiff married a second time. Two children were born of this marriage, a boy and a girl. The former was six years of age at the time of the trial and the latter four years of age. Plaintiff and her second husband separated in 1974 and were divorced in 1978.

Plaintiff, at the age of 27, was married a third time, in November 1979, to a 20 year old man. The latter has an unfavorable employment record, having been fired from his last two jobs. At the time of trial he had been working for a new employer for one week. He and plaintiff moved in with her parents soon after their marriage and were still living with them at the time of the trial.

Testimony of the principal of the school attended by plaintiff’s son, and of the child’s teacher, indicates that the youngster is a disruptive force in his class and probably has serious emotional problems. It is commendable that plaintiff is seeking professional help for the child. Be that as it may, it is clear that the conditions existing in plaintiff’s home are less conducive to the well-being of young children than those which obtain in defendant’s home.

Proceedings of this nature are governed by La.C.C. Art. 157 which was amended in 1979 to provide, in pertinent part, as follows:

“In all cases of separation and divorce, and changes of custody after an original award, permanent custody of the child or children shall be granted to the husband or the wife, in accordance with the best interest of the child or children, without any preference being given on the basis of the sex of the parent.” (Emphasis added)

In Bordelon v. Bordelon, 385 So.2d 794 (La.1980) the Supreme Court granted a writ of certiorari “to determine the appropriate standard of proof applicable to change of custody cases.” In response to the relator’s argument that the lower court had erred in failing to apply the “double burden” rule, the court reasoned that by amending La. Civil Code Art. 157 in 1977 the legislature “expressly adopted only one element of the Fulco rationale, thereby indicating an abrogation of the remainder of the rationale to the extent that it prescribed substantive criteria for granting and changing custody.” The court then concluded:

“... Thus, the best interest of the child, and not the possibility of harm, is the sole criterion applicable to change of custody cases.
“As the Third Circuit Court of Appeal correctly indicated, even though there is no longer an inflexible rule with regard to changes of custody, the policy consideration underlying the rule, stability of environment, is still relevant to a determination of the best interest of the child. A court should consider the prior history of a child’s custody when asked to change custody. Generally, it might not be in the best interest of a child to be regularly moved from parent to parent. But this is a single consideration to be weighed with all other factors relevant to a determination of the best interest of the child.”

In Bankston v. Bankston, 355 So.2d 58 (La.App. 2d Cir. 1978) a mother sought the custody of her young child who had been in the actual custody of his father for most of his life and continuously for about two years prior to the trial. Ruling in favor of the father, we held:

“In considering the best interest of the child in this case, the overriding consideration in our judgment is that the child is happy, well adjusted and developing normally in his present close relationship with his father and that a change in custody would undoubtedly upset the stable environment of the child.”

We recognize that in custody cases the best interest of the child is not always served by the strict and inflexible application of jurisprudential rules. However, it appears to be generally accepted that a prime requirement for the child’s healthy development is stability, security and continuity in his immediate environment. Therefore, we believe that it comports with the spirit and intent of the 1979 amendment to Article 157 to accord proper weight to the fact that this child has been in the custody of her father for most of her eight years and has experienced a normal, happy childhood in that home. In addition, we have considered the following specific factors: the age and sex of the child; the interrelationship of the child with her father, her stepmother, her grandmother and others who significantly affect her interests; the child’s wholesome adjustment to her home and school; and the mental and physical health of all individuals involved in the case.

Measured by all of these criteria, we conclude that the best interest of the child is served by rejecting the demands of her mother to change the legal custody from her father. Accordingly, the judgment of the trial judge is affirmed at appellant’s cost.

      . See Decker v. Landry, 227 La. 603, 80 So.2d 91 (1955); Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (La.1971). This rule required that a person seeking change of child custody had to prove that (1) the circumstances under which the child was living were deleterious to its welfare and (2) the applicant for a change of custody could provide a better environment.

      . After this amendment, Article 157 in pertinent part provided: “In all cases of separation and divorce, permanent custody of the child or children shall be granted to the husband or the wife, in accordance with the best interest of the child or children.”


text:
    William PENN, Jr., Plaintiff-Appellee, v. LIGHTHOUSE LIFE INSURANCE COMPANY, INC., Defendant-Appellant.
    No. 14364.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 2, 1980.
    Eugene J. Coen, and Barry E. Edwards, Shreveport, for defendant-appellant.
    Kennedy, Goodman & Donovan By David B. Clinkenbeard, Shreveport, for plaintiff-appellee.
    Before PRICE, HALL and MARVIN, JJ.
   MARVIN, Judge.

Judgment was against the insurer and in favor of the plaintiff-beneficiary, brother of the decedent insured, for the proceeds of the life insurance policy purchased by the beneficiary. The judgment also assessed penalties against the insurer. The insurer appeals, contending the beneficiary did not have an insurable interest in the life of his brother (LRS 22:613) and that the beneficiary, with the intent to deceive, made material and false representations to the insurer about the health of the insured (LRS 23:619(B)). We affirm.

Insurable interest includes individuals related closely by blood. § 613(C)(1). The statutory requirements are fulfilled when the insurer admits the decedent and beneficiary are brothers. An insurable interest per se results from a close blood relationship. See Goodwin v. Federal Mut. Ins. Co., 180 So. 662, 666 (La.App. 2d Cir. 1938).

Where there is no error patent on the record and in the absence of a transcript of testimony or a statement of fact, either by the trial court or by agreement of the parties litigant, we presume the judgment to be supported by competent evidence and to be free from error. Succession of Walker, 288 So.2d 328 (La.1974). Even should we assume that the beneficiary made false and material misrepresentations with the intent to deceive as contemplated by § 619(B), the policy sued on precludes the insurer from raising this defense after one year of its date of issue in an incontestability provision which reads:

“4. INCONTESTABILITY. — This Policy shall be incontestable after one year from date of issue except for non-payment of premiums.”

The date of issue of this policy was more than one year prior to the death of the decedent insured. The legal effect of such a provision is well settled. Garrett v. Good Citizens Mut. Ben. Ass’n, 204 La. 871, 16 So.2d 463 (1943); McKinney v. American Security Life Insurance Co., 76 So.2d 630 (La.App. 2d Cir. 1954).

The insurer’s failure to properly interpret its own policy provisions in the light of well-settled law does not constitute “just cause” for the failure to pay life insurance policy benefits. LRS 22:656. Taylor v. Unity Industrial Ins. Co., 147 So. 91 (La.App. 2d Cir. 1933); Reichert v. Continental Insurance Company, 290 So.2d 730 (La.App. 1st Cir. 1974), writ denied.

At appellant’s cost, judgment is

AFFIRMED.


text:
    Thomas H. B. RANKIN, Jr., Jane W. Rankin and Alex W. Rankin, Plaintiffs-Appellees, v. Rosie GARLAND (a/k/a Rosa Garland, & a/k/a Mrs. R. T. Garland), Defendant-Appellant.
    No. 14365.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 2, 1980.

      North Louisiana Legal Assistance Corp. by Louis G. Scott, Bastrop, for defendant-appellant.
    Rankin, Yeldell, Herring & Katz by Stephen J. Katz, Bastrop, for plaintiffs-appel-lees.
    Before PRICE, HALL and MARVIN, JJ.
   MARVIN, Judge.

Defendant, Mrs. Garland, appeals a judgment evicting her from a residence on a town lot in the rural community of Mer Rouge where she had lived since 1939. CCP 4701-4735. Her several contentions stem from her claim of ownership of the property by 30 years acquisitive prescription. CC Arts. 3499, 3500.

The CCP articles on eviction were designed to give an owner of immovable property (CCP 4702) summary means to evict an occupant without fulfilling the burden and delay required in a.petitory action. CCP 4702. See Skannal v. Jones, 384 So.2d 494 (La.App. 2d Cir. 1980); Todt v. Santani, 167 So.2d 475 (La.App. 4th Cir. 1964). CCP 4705 expressly states that the eviction procedure shall not be construed to conflict with the articles relating to actions to determine ownership or possession (CCP 3651-3664).

The crucial threshold question is whether Mrs. Garland is an occupant within the meaning of CCP 4704:

“ ‘Occupant’ includes a sharecropper; half hand; day laborer; former owner; and any person occupying immovable property by permission or accommodation of the owner, former owner, or another occupant, except a mineral lessee, owner of a mineral servitude, or a lessee of the owner;”

The record supports the trial court’s conclusion that Mrs. Garland was an occupant who was subject to eviction. The Garlands were shown to have occupied the property by permission of plaintiffs’ ancestors. We affirm.

Plaintiffs’ ancestor inherited the property from his ancestor in 1932. Plaintiffs’ ancestor died in 1974 and plaintiffs were placed in possession of the property. By testimony! judgments of possession, plats, and tax receipts, plaintiffs established a prima facie case of continuously owning the property since before Mrs. Garland and her late husband moved into the residence in 1939. Mrs. Garland and her husband did not pay taxes on the property or attempt to have the property assessed or titled in their names.

The Garlands moved into the residence when Mr. Garland went to work for plaintiffs’ ancestor. Plaintiffs’ ancestor regularly furnished housing for his employees. Mr. Garland was considered a faithful employee of the plaintiff family and was allowed to remain in the residence after he completed about 30 years of employment and became unable to work. Mrs. Garland was allowed to remain in the residence for about a year after her husband died in 1978. When plaintiffs began to request some form of rent or lease from Mrs. Garland, she began to assert claims of ownership and this suit followed.

Defendant responded to plaintiffs’ rule to evict by filing the dilatory exception of improper use of summary proceedings. She then answered and urged other exceptions such as no cause of action. These exceptions were tried with the merits of the rule to evict. Since we affirm on the merits, we need not discuss the exceptions or their possible waiver.

Once plaintiffs established that they were the apparent owners of the property, that Mrs. Garland occupied the property with the permission of a former owner or a former occupant (Mr. Garland), that the purpose of occupancy had ceased, and that requisite notices had been given, plaintiffs were entitled to invoke the summary eviction procedure. CCP 4702.

At appellant’s cost, the judgment of eviction is

AFFIRMED.


author: HALL, Judge.

text:
    COMMERCIAL UNION ASSURANCE COMPANIES, Plaintiff-Appellant, v. Unopened Succession of Woodrow CARTER et al., Defendants-Appellees and Plaintiff-In-Reconvention.
    No. 14375.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 2, 1980.
    Kostelka, Swearingen & Street by Elmer G. Noah, II, Monroe, for plaintiff-appellant.
    Cotton, Bolton, Roberts & Hoychick by W. D. Cotton, Rayville, for defendants-ap-pellees and plaintiff-in-reconvention, Unopened Succession of Woodrow Carter and Southern Farm Bureau Cas. Co.
    Before HALL, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   HALL, Judge.

Plaintiff, Commercial Union Assurance Companies, as subrogee of its insured Sco-gin Chevrolet Company, Inc., filed suit against the unopened succession of Woodrow Carter and Carter’s liability insurer, Southern Farm Bureau Casualty Company, seeking to recover $1,932.25 paid by it to its insured for damage to the insured’s pickup truck sustained in a collision with a truck owned and driven by Carter. The defendants denied liability and Southern Farm Bureau, as subrogee of Carter, reconvened against Commercial Union to recover $3,403.90 which it paid to its insured for property damage and medical expenses.

After trial, in written reasons for judgment, the district court questioned whether Franklin Parish, where the suit was brought, was the proper venue in view of the lack of evidence regarding in which parish the accident occurred; the court, however, did not rule on the venue question. The court found that plaintiff had failed to establish its standing to sue as subrogee because it failed to introduce its insurance policy into evidence and there was no evidence to establish that the provisions of the policy extended coverage to the driver of the insured vehicle, who did not have permission to drive it. Plaintiff’s demands were rejected. The court also rejected the demands of the plaintiff-in-re-convention, finding that the negligence of the driver of Commercial Union’s insured vehicle was not established.

From judgment rendered accordingly, plaintiff appealed. Defendant and plaintiff-in-reconvention answered the appeal. We reverse and render judgment in favor of plaintiff, Commercial Union.

No exception of improper venue was filed. Improper venue must be raised by the timely filing of a declinatory exception or the objection is waived. LSA-C. C.P. Art. 925. The trial court is without authority to raise the venue question on its own motion. Improper venue was not an issue in the trial court and is not at issue on appeal.

Plaintiff, Commercial Union, established the issuance of an insurance policy to Scogin Chevrolet Company through the testimony of its adjuster. The adjuster testified that the Commercial Union policy was in full force and effect at the time of the accident. The amount of damage to the vehicle and payment by plaintiff to its insured for the damage was established. A proof of loss and conventional subrogation agreement executed by the insured was filed into evidence. Plaintiff’s standing as subrogee and its right to bring this action was thereby clearly established. See Audubon Insurance Company v. Francois, 315 So.2d 354 (La.App. 4th Cir. 1975); LSA-C.C.P. Art. 697; Zurich Insurance Company v. Grain Dealers Mutual Insurance Company, 169 So.2d 6 (La.App.2d Cir. 1964). Introduction of the insurance policy into evidence is not necessary where proof of the subrogation is in the record. Brown v. Zito, 333 So.2d 649 (La.App. 4th Cir. 1976); Stephens v. Dore, 281 So.2d 889 (La.App. 3d Cir. 1973); Allen v. Baucum, 218 So.2d 662 (La.App. 4th Cir. 1969); Travelers Fire Ins. Co. v. Savoy, 82 So.2d 68 (La.App. 1st Cir. 1955); Automobile Ins. Co. of Hartford, Conn. v. Barnard, 30 So.2d 142 (La.App. 2d Cir. 1947). The cases cited by defendant and the trial court dealing with the defense of lack of coverage under a liability insurance policy because the driver at the time of the accident was operating the vehicle without the permission of the named insured are not in any way applicable to this case involving a subrogation action by a collision insurer.

On the negligence or liability issue, the evidence establishes that the vehicles were involved in a head-on collision on a two-way highway at night. Each side contended the other vehicle was in the wrong lane. The driver of plaintiff’s insured vehicle, Jerry Ezell, and one of his passengers, Jimmy Womack, testified the Carter truck, operating with only the passenger-side headlight burning, was well over into their driving lane when the collision occurred. Although one witness who saw the Carter vehicle immediately prior to the accident testified that both headlights were burning, the testimony of Ezell and Womack regarding the issue of fault stands uncontradicted. The state trooper who investigated the accident determined that the Carter truck was in the wrong lane, based on the location of some water spilled from the Carter vehicle onto the road at time of impact.

Defendant attacks the veracity of the testimony of Ezell and Womack because they first told the investigating officer that Womack was driving at the time of the accident; later, both admitted that Ezell was driving. The teenagers’ reasonable explanation of why they said Womack was driving was because they were not sure Ezell was supposed to be driving, permission to drive the truck having been given originally to Womack by his father, a Sco-gin employee.

The preponderance of the evidence establishes that the accident was caused by the negligence of Carter in driving on the wrong side of the road, as found by the trial court. There was no negligence on the part of Ezell, who could not avoid the collision. Plaintiff is entitled to recover under its subrogation agreement.

For the reasons assigned, the judgment of the district court is reversed and set aside insofar as it rejected plaintiff’s demands. Judgment is rendered in favor of plaintiff, Commercial Union Assurance Companies, against defendants, the Unopened Succession of Woodrow Carter and Southern Farm Bureau Casualty Company, in solido, in the sum of $1,932.35, together with legal interest thereon from date of judicial demand until paid, and for all costs of this suit, including the costs of appeal. The judgment insofar as it rejected the demands of Southern Farm Bureau Casualty Company against Commercial Union Assurance Companies is affirmed.


text:
    Marie T. BANNON et al. v. Richard L. EDRINGTON et al.
    No. 11331.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1980.

      Monroe & Lemann, Steven O. Medo, Jr., New Orleans, for plaintiffs-appellees.
    Lemle, Kelleher, Kohlmeyer & Matthews, Albert H. Hanemann, Jr., Richard K. Rath-bun, New Orleans, for intervenors-appel-lants.
    Before REDMANN, GULOTTA and BARRY, JJ.
   REDMANN, Judge.

An employee was killed under circumstances entitling his survivors to recover both uninsured motorist insurance and workers’ compensation. In this suit by the survivors against an insurer that afforded uninsured motorist coverage, the workers’ compensation payer intervened and now appeals from the dismissal, on exception of no cause of action, of its demand for reimbursement from the uninsured motorist insurer.

The question is whether an uninsured motorist insurer’s obligation under its policy constitutes a “legal liability to pay damages” within the meaning of La.R.S. 23:1101. We answer that it does not. Conceding that the amount of recovery (subject to policy limits) from an uninsured motorist carrier is the same as the amount of damages for personal injury for which the tort-feasor is liable and that the law enforces contractual liability and in that sense one is “legally liable” to perform one’s contracts, we nevertheless reason that the uninsured motorist carrier’s liability is not a legal liability for damages.

First, damages are due for breach of a duty, and an uninsured motorist carrier is not liable for breaching any duty. Its liability is to perform its contractual obligation, and when it does perform, it is not discharging any liability for damages.

The uninsured motorist carrier is rather a casualty insurer than a liability insurer. It does not insure the third-party tortfeasor against liability, but insures its own insured against the loss that results from a casualty for which the uninsured third-party tort-feasor is (and remains) liable in damages. Payment by the uninsured motorist insurer does not discharge the uninsured motorist’s “legal liability to pay damages.”

Second, the liability of an insurer is, from the mere contract alone, a contractual rather than a legal liability. A legal liability is one that the law imposes, as it does upon a third-party tortfeasor to repair the damages caused by the tort. The statutory “legal liability” is plainly not designed to distinguish the affected liability from “illegal liability” and, in our view, it is intended to distinguish a liability that the law imposes from one that a party to a contract undertakes under no compulsion of law.

Gentry v. Pugh, La.App. 2 Cir. 1978, 362 So.2d 1154, reached the result we reach, reasoning that the uninsured motorist carrier is not a “third person” within the workers’ compensation statute. We might agree with the compensation payer that the uninsured motorist insurer is a third person because it is not the worker’s employer or co-employee or the like: but we reason that its liability is not a “legal liability” and it is not a “liability to pay damages” within R.S. 23:1101.

Finally, appellant injects in this case a problem that is not ours to solve. Appellant argues that an employee could have double recovery, and in fact does here, in that, in a féderal court action against other uninsured motorist carriers, plaintiffs have obtained a judgment now on appeal for the full amount of their damages.

We have before us only the question of whether the workers’ compensation payer can recover from the uninsured motorist carrier, and not the contrary question of whether the latter can recover from the former (i. e., through the worker’s recovery). Nor do we have the question of whether the compensation payer’s statutory “precedence” for recovery over the worker in any tort recovery, R.S. 23:1101, constitutes such a defeat of the uninsured motorist insurer’s statutory right to reimbursement as to be, pro tanto, a defense for the insurer. (See, by analogy, C.C. 3061.)

We rule only that the compensation payer has no claim under R.S. 23:1103 for recovery against an uninsured motorist insurer.

Affirmed.


text:
    Ernest E. VAPPIE v. AMERICAN HOME INSURANCE COMPANY.
    No. 11403.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1980.
    Rehearing Denied Jan. 19, 1981.
    Michael A. Britt, Leach, Paysee & Baldwin, New Orleans, for defendant-appellant.
    Thomas F. Schexnayder, Metairie, for plaintiff-appellee.
    Before BOUTALL, SCHOTT and CHE-HARDY, JJ.
   SCHOTT, Judge.

Defendant, American Home Assurance Company has appealed from a judgment ordering it to pay monthly benefits to plaintiff under a “Certificate of Mortgage Accident and Health Insurance.” The issue is whether a clause in the policy providing for its termination at the time of a prepayment of plaintiff’s mortgage is enforceable.

On May 1, 1973, plaintiff became insured under a master group policy issued to Car-ruth Mortgage Corporation, holder of the mortgage on plaintiff’s home. The policy provided that the company would pay the monthly benefit to plaintiff in the event he became disabled. Part III, INDIVIDUAL TERMINATIONS, contain the following pertinent provisions:

“The insurance of any Insured Mortgagor shall terminate on the earliest of the following dates: .... (4) on the original expiration date of the Insured Mortgagor indebtedness with the Mortgagee or the date on which said indebtedness is terminated by reason of prepayment, renewal, refinancing or otherwise.”

Plaintiff became disabled and was collecting the disability benefits when he sold his home and paid the mortgage balance out of the proceeds. Defendant discontinued the payments and this suit followed.

In deciding the case in favor of plaintiff the trial judge reasoned that to do otherwise would violate the principle of unjust enrichment as discussed in Minyard v. Curtis Products, Inc., 251 La. 624, 205 So.2d 422 (1967).

We have concluded that this principle has no application to the case before us. C.C. Art. 1965, which is the foundation of the doctrine, provides as follows:

“The equity intended by this rule is founded in the Christian principle not to do unto others that which we would not wish others should do unto us; and on the moral maxim of the law that no one ought to enrich himself at the expense of another.” (Emphasis supplied)

This article, as is readily demonstrated by the emphasized portion, must be read in context with the two previous articles which provide:

“When the intent of the parties is evident and lawful, neither equity nor usage can be resorted to, in order to enlarge or restrain that intent, nor can any law operate to that effect, unless it be some prohibition or other prohibition, which the parties have no right to modify or renounce.” Art. 1963.
“Equity, usage and law supply such incidents only as the parties may reasonably be supposed to have been silent upon from a knowledge that they would be supplied from one of these sources.” Art. 1964

The intent of the parties in the contract of insurance could not be clearer. It was intended that plaintiff would continue to receive the disability payments thereby enabling him to make his mortgage payments, but that such benefits would terminate in the event he prepaid his mortgage. Agreements legally entered into between parties have the effect of laws on those who have formed them. C.C. Art. 1901.

C.C. Art. 21 has application “where there is no express law,” but since the parties by contract established the law between them with respect to the termination of mortgage benefits Art. 21 has no application.

Likewise, the Minyard case is inapposite as it was not concerned with the enforcement of contractual rights between parties but instead dealt with the area of quasi contractual obligations as defined in C.C. Art. 2292.

The other leading case from the Supreme Court on unjust enrichment, Edmonston v. A-Second Mortgage Co. of Slidell, Inc., 289 So.2d 116 (La.1974), contains the following:

“The issue, then, is whether there is a contract, express or implied, between Mrs. Edmonston and A-Second or Standard and A-Second which would justify the enrichment of A-Second. If there is such, the contract is the law between them and it serves as a legal cause or justification for the enrichment. If cause is found, the enrichment is not unjustified and the attempt to invoke the actio de in rem verso must fail. For it is not every unjust enrichment which warrants the resort to equity; only the unjust enrichment for which there is no justification in law or contract allows equity a role in the adjudication.”

Because the contract between the parties authorized defendant to discontinue the payments, and since we have not been referred to and have not found any statutory law which prohibits the inclusion of such a provision in the policy the same must be enforced.

Accordingly, the judgment appealed from is reversed and set aside and there is judgment in favor of defendant, American Home Assurance Company, and against plaintiff, Ernest E. Vappie, dismissing his case at his cost.

REVERSED AND RENDERED.

      . The name of the company was incorrectly given in the title of the case as American Home Insurance Co.


author: BARRY, Judge.

text:
    Rowena SPENCER v. Jerry HOFFMAN, d/b/a Jerry Hoffman’s Pool & Patio Enclosures, and Triangle Pool and Patio Enclosures, Inc.
    No. 11577.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1980.
    Noble, Slaughter, Clayton & Lorenz, Rainer Lorenz, New Orleans, for plaintiff-appellant.
    Morphy, Faulkner, Simpson & DiMaria, Steven K. Faulkner, Jr., Metairie, for defendants-appellees.
    Before SAMUEL, BARRY and SAR-TAIN, JJ.
   BARRY, Judge.

Plaintiff filed a petition for quanti minor-is on a contract for construction of a pool enclosure. As a result of a prior arbitration award defendant filed exceptions of res ju-dicata and no right of action which were maintained by the District Court dismissing plaintiff’s suit. Plaintiff-appellant contends that the issues in her lawsuit were not considered or raised in the arbitration action and she should not be precluded from seeking relief.

Plaintiff made installment payments of $9,500.00 on the $13,000.00 contract, but before substantial completion disputes arose which the parties found impossible to resolve.

Both parties agreed to arbitration. After the initial hearing, the arbitrator rendered an award which listed various deficiencies and defendant was given time to perform corrective work. Plaintiff eventually objected to the award and when defendant appeared at plaintiff’s residence he was prohibited by plaintiff from doing any work. A subsequent arbitration hearing was conducted after which an amended award was rendered wherein defendant was ordered to repay $500.00 to plaintiff (an interim disbursement), and upon this repayment, the arbitrator declared both parties released from the contract. The net effect was to cancel the $3,500.00 balance owed by plaintiff and defendant was released from any further corrective work.

Plaintiff’s petition for a reduction in the contract price failed to mention that plaintiff had agreed to and participated in arbitration. The arbitration agreement specifically provided:

“Both parties agree that the arbitration award shall be final and binding and that any party not adhering to the award shall be liable to the other party for reasonable attorney fees, court costs and other collection costs resulting from non-compliance.”

Plaintiff had an alternative to the arbitration award. She had three months to file a motion to vacate, modify or correct the award. LSA—R.S. 9:4213. Instead, she waited nine months before filing a petition in the District Court. Plaintiff’s submission to arbitration included her agreement to be bound accordingly. Our judicial system is precluded from exercising jurisdiction once arbitration has commenced, LSA—R.S. 9:4201, 4202, except as noted above.

Plaintiff urges that the relief sought in the District Court differed from the complaints she urged in arbitration. However, the arbitration agreement which she agreed to specified that the “customer seeks correction of all defects.” (emphasis added).

The clear purpose of arbitration is to avoid costly and lengthy litigation and to achieve a speedy resolution of the dispute in lieu of judicial proceedings. Firmin v. Garber, 353 So.2d 975 (La.1977). In Louisiana arbitration is favored as a public policy. Wright v. Round Corner Restaurants of La., Inc., 252 So.2d 341 (La.App. 4th Cir. 1971).

The award of an arbitrator is res judicata and unless grounds are established, in accordance with arbitration law, for the vacation, modification or correction of the award, it must be affirmed. Bergeron v. Gassen, 185 So.2d 106 (La.App. 4th Cir. 1966).

Accordingly, the judgment of the District Court is affirmed with costs of this appeal to be paid by appellant.

AFFIRMED.


text:
    Melvin J. HOERNER v. Frank PAUL.
    No. 11912.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 18, 1980.

      Reuter & Reuter, Arthur C. Reuter, Jr., New Orleans, for plaintiff-appellee.
    Gene Friedman, New Orleans, for defendant-appellant.
    Before REDMANN, CHEHARDY and STOULIG, JJ.
   REDMANN, Judge.

Plaintiff moves dismissal of a suspensive appeal for failure to furnish increased security for the appeal as ordered by the trial court. Because the judgment increasing security was improper, we deny the motion.

Defendant had timely furnished in cash the $1,200.00 appeal security first ordered. Plaintiff’s motion to dismiss refers to a post-appeal judgment ordering the appeal security increased to $3,200.00 “to be filed within 24 hours of the rendition of this judgment.”

Because C.C.P. 5124 allows “four days, exclusive of legal holidays,” to furnish new or supplemental security, the judgment on which mover relies erred in allowing only 24 hours and thereby misled defendant and denied him the four-day opportunity the law allows. We recognize that C.C.P. 4735 requires that the original security be filed within 24 hours to suspend an eviction. However, once the suspensive appeal is perfected by timely furnishing the original security, the trial court’s jurisdiction is described (although not exhaustively) by C.C.P. 2088(5) as to “consider objections to the . . . sufficiency of the appeal bond, and permit the curing thereof, as provided in Articles 5123, 5124 and 5126 •....” The urgent necessity of bond within 24 hours to protect the landowner is satisfied by the timely filing of the first security (here, $1,200.00 on a building that rented for $400.00 with half that rent going towards the optioned purchase price.) We conclude that the four-day period of C.C.P. 5124 is made applicable by C.C.P. 2088(5).

We therefore deny the motion to dismiss, but note that the trial judge retains authority to amend his judgment to provide the four days required by C.C.P. 5124 after appropriate notice to appellant.

Motion denied.


text:
    Anthony V. SIRONE v. SOUTH CENTRAL BELL TELEPHONE COMPANY et al. SOUTH CENTRAL BELL TELEPHONE COMPANY v. Anthony V. SIRONE.
    Nos. 13609, 13610.
    Court of Appeals of Louisiana, First Circuit.
    Oct. 6, 1980.
    Writ Refused Dec. 5, 1980.

      John D. Kopfler, Hammond, for plaintiff and appellant.
    Arthur W. Macy, Hammond, for defendant and appellee.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

These consolidated suits deal with the efforts of South Central Bell Telephone Company (Bell) to obtain a right-of-way for the construction of underground conduits and manholes on the Tangipahoa Parish property of Anthony V. Sirone.

Sirone brought suit to enjoin Bell from trespassing or constructing additional works on his property. He also sought the removal of encroaching works previously built and $75,000 in damages. Bell, pursuant to LSA-R.S. 45:781 and R.S. 19:1 et seq., filed suit to expropriate the needed right-of-way.

Following trial, the district court made several findings of fact and conclusions of law. Judgment was signed pursuant to the findings. We adopt the findings of fact and conclusions of law as our own.

“1. An aerial and/or underground cable of South Central Bell has been in place from point A to point D as shown on the survey of A. J. Zabbia dated November 1, 1976, December 17, 1976 and March 30, 1977 (admitted in evidence as South Central Bell Exhibit # 1) for various lengths of time, but all dating from prior to the year 1976.
2. Sirone knew or should have known of the existence of the cables from the physical evidence present, i.e. poles, wires, junction boxes and trenching operations to install the cables.
3. The St. Julian Doctrine applied at the time of the construction of the aerial and underground cables, as they were installed prior to the decision in the case of Lake Inc. versus Louisiana Power and Light Company in 1976.
4. The man hole for the junction box is situated one half on the highway right-of-way and one half on Si-rone’s property.
5. The right-of-way or servitude requested by South Central Bell as discribed (sic) and shown on the plat of A. J. Zabbia referred to above, is required in the public interest, convenience, and necessity, and South Central Bell is entitled to obtain the same by means of expropriation. The route taken as shown on said plat and requested by South Central Bell is the most feasible and practicable one available under the circumstances of this case.
6. The value of the servitude expropriated is $3,305.00. This is computed as 15 percent of the value of the land, which is $22,033.75, based on the stipulated area of 4,406.75 square feet, at a value of $5.00 per square foot established by the testimony of Mr. Kermit Williams. There are no improvements on the land taken by the servitude, other than paved driveways which can be bored under without damage.
7. Sirone suffered damages in the amount of $1,500.00 by the trespass of South Central Bell in digging on his property and installing one half of the junction box, or manhole, without his prior consent. Sirone could have minimunized (sic) his damages by allowing the hole around the junction box to be filled rather than keeping the hole open and the area barricaded from the time of installation until the date of trial.
8. There has been insufficient proof of any severance damages to the remaining property of Sirone. The servitude covers a portion of Sirone’s property upon which Sirone could not build because of its immediate proximity to the highway. Its use is limited to parking and access. The buried cable will not interfere with its use for these purposes, nor will the manhole cover, which will be flush with ground level. The only inconvenience after the initial construction will be on those occasions when South Central Bell must go into the junction box to perform some type of maintence (sic) or repair on cable situated therein. These occasions should not damage the remaining property of Sirone. Any inconvenience should not compare with the danger posed by the open hole and the barracade (sic) which has been there from October 6,1976 to the date of the trial, which apparently had no adverse affect on the remainder of Sirone’s property.
9.The expert witness fees of A. J. Zabbia, Clifford G. Webb, Kermit Williams, John Deano, Jr. and Hubert Smith are fixed in a sum of $100.00 each and are taxed as cost of these proceedings.
10. All costs of these proceedings are to be paid by South Central Bell.
11. All exceptions filed in these proceedings are hereby overruled and all other demands of the parties are hereby denied.”

Sirone appeals, objecting to virtually all the trial court’s findings. Our review indicates only three objections need be treated. We first address appellant’s primary contention — that eighty and not fifteen percent of market value should have been used as the measure of compensation for the servitude.

Article I, Section 4 of the Louisiana Constitution of 1974 requires that “just compensation” be paid to an owner for property taken or damaged and that he “be compensated to the full extent of his loss.”

The trial court found that Sirone retained eighty-five percent usage of the property taken for Bell’s underground right-of-way. Sirone’s only reasonable use of the expropriated land is a parking area. Underground cables will not interfere with this use.

Appellant cites Claiborne Electric Cooperative, Inc. v. Garrett, 357 So.2d 1251 (La.App.2nd Cir. 1978), and Louisiana Power & Light Company v. Caldwell, 353 So.2d 371 (La.App.1st Cir. 1977), as cases in which higher percentages of market value (90 and 75 respectively) were allowed the landowner for the servitude and urges this court to do likewise. We disagree. Each case of this type must be decided on its own facts and, at any rate, the cited cases are inapplicable because they deal with takings for the construction of high tension wires and not underground cables. The award made of $3,305.00 was eminently reasonable considering all the circumstances.

Sirone objects to the fixing of Kermit Williams’ expert witness fee at only $100.00. This was the sum awarded to each expert. Evidently the trial court did not view Williams’ work as being more valuable than, or having greater weight than, that of the other experts. We find no abuse of discretion in the amount awarded.

Appellant urges that, under authority of LSA-R.S. 19:8 Bell must pay reasonable attorney fees. From the record and appellant’s brief, it is clear that some negotiations about compensation took place. As presented by plaintiff, however, evidence as to the highest amount offered is unclear. Nor can we accept appellant’s argument that Bell made no good faith offer at all. The posture of the record makes the trial court’s refusal to award attorney fees reasonable.

For the foregoing reasons, the trial court judgment is affirmed. All costs of this appeal are to be paid by Anthony V. Sirone.

AFFIRMED.

      . LSA-R.S. 19:8 provides in part:
      “A. Expropriation suits shall be tried in term time or in vacation and shall be conducted with preference and with the greatest possible dispatch. Judgments may be signed in term time or in vacation. All issues shall be decided by the trial judge. However, when a jury trial has been demanded, the judge shall hear the evidence on all issues, other than the measure of compensation and shall render a decision within five days. If the trial judge decides in favor of the expropriating authority, then within thirty days after such decision, a jury shall be impaneled to determine the measure of compensation. Immediately after compensation has been determined, the plaintiff shall, upon motion of the defendant, present evidence as to the highest amount it offered the defendant for the property prior to trial on the merits. After hearing evidence on the issue, the court shall determine the highest amount offered. If the highest amount offered is less than the compensation awarded, the court may award reasonable attorney fees. The expropriating authority shall not be entitled to possession or ownership of the property until a final judgment has been rendered and payment has been made to the owner or paid into the registry of the court, except as may otherwise be stipulated by the parties.”