text:
    Russell L. CUOCO v. PIK-A-PAK GROCERY CORPORATION.
    No. 10677.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 10, 1980.

      Milling, Benson, Woodward, Hillyer, Pier-son, & Miller, James K. Irvin, Kennedy J. Gilly, Jr., New Orleans, for defendant-appellant. ^
    Glenn C. McGovern, New Orleans, for plaintiff-appellee.
    Before GARRISON, CHEHARDY and STOULIG, JJ.
   GARRISON, Judge.

This case involves an action to evict a sub-lessee, Pik-a-Pak Grocery Corporation d/b/a Li’l General Stores, on the grounds of an alleged breach of a written contract of lease and two validly executed options. The trial court granted judgment evicting the sublessee, without ruling that a breach had occurred. Additionally, the trial court found that the sublease had not been executed by the parties to the action to evict, but rather had been executed between the sublessor-party, Russell Cuoco, and a non-party, General Host Corporation, the parent corporation of Pik-a-Pak Grocery Corporation. This ruling was based on the trial court’s findings that the options were void, that a new contract of lease had been con-fected and that — in the absence of a written lease between Pik-a-Pak and General Host which stipulated a duration — Pik-a-Pak Grocery Corporation possessed the premises on a month-to-month basis at the sufferance of General Host. Finally, the trial court held that Li’l General Stores was not a legal entity, Pik-a-Pak Grocery Corporation appealed the judgment of the trial court. We reverse.

We find that the trial court erred in failing to find that the options to lease had been validly executed. Both appellee and appellant state that a stipulation relative to the valid exercise of the two options had been entered into prior to trial. The parties agreed to the stipulation during a pre-trial hearing. However, the court reporter lost the transcript containing that stipulation. We believe that the loss of the pretrial stipulation is of no moment, as both parties stipulated at trial that the terms of lease were validly extended by both options and that Pik-a-Pak was the sublessee of Cuoco. Indeed plaintiff sued for eviction seeking a cancellation of the sublease and pleading the existence of the sublease.

Inasmuch the district court did not reject this stipulation it was bound by the admission. Indeed, counsel for plaintiff failed to object to its inclusion into evidence at trial. It is only on appeal that plaintiff commences an argument that the options were void.

An examination of the relevant correspondence further bolsters our conclusion that the parties contemplated execution of the options as opposed to confection of a new lease. The correspondence which extended the first option uses the language “with respect to that certain lease dated April 16, 1962 covering the captioned premises. The lease will be extended for a further term . . . ” The correspondence which extended the second option uses the language “we do hereby agree to renew and extend that certain lease . . ." Indeed, there is little doubt that the agreement of the parties was an exercise of the option as opposed to confection of a new lease.

The trial court concluded that the options had not been executed as a result of two findings: First, the court found that the options were void because they failed to specify a future rental price. Second, the court found that “Li’l General Stores” was not a legal entity, hence it had no capacity to contract. We will address the former finding first.

The word “option” is a common law term which is used by civilians for the sake of brevity and expediency in describing a similar civilian concept. The proper civilian concept is a “unilateral promise to contract.” The trial court’s ruling on the question of rental price resulted from an erroneous juxtaposition of these two similar, but not identical, concepts:

“Similarity, however, is not the same as identity. In order to meet the requirements for the formation of a contract, a promise requires consideration at common law. At civil law, instead, the question is not whether a promise is supported by consideration, but whether an obligation has a cause and, from this viewpoint, a party’s will to be bound is an effective cause.
“In both systems, however, an option is an onerous contract. At common law, this is so for the reason that consideration eliminates the otherwise gratuitous nature of the promise. At civil law, it is so because the promisor’s interest in making the contemplated final contract suffices to give his obligation an onerous cause. The difference lies in the fact that, at common law, the element of onerousness, the consideration, is given to the promisor by the promisee, while, at civil law, the element of onerousness resides in the promisor’s own will in the form of a motive.
“Finally, options are unilateral contracts under both systems of law. Here again, however, the reasons that make the contract unilateral differ. A unilateral promise to contract is a unilateral contract at civil law because it gives rise to only one obligation. — the promisor’s. An option contract is unilateral at common law because only the performance of one party is owed; the other has already performed when he gave consideration.” 2 Litvinoff, Obligations § 105 (7 La.Civil Law Treatise, 1969).

The trial court appeared to believe that failure to stipulate the rental price was a lack of consideration, hence the option was void. In Louisiana, however, causation, not consideration, is controlling. Even assuming arguendo that the options were fatally defective, the subsequent actions of the parties ratified the options as they were exercised.

We agree with the trial court that “Li’l General Stores” is not a legal person, but this finding is not evidence of a lack of capacity to contract. Additionally, we base this finding on reasons other than those enunciated by the trial court which held that “Li’l General Stores” was an operating division of General Host Corporation.

The sublessee was cited and appears as “Pik-a-Pak Grocery Corporation d/b/a Li’l General Stores.” The appellation “Li’l General Stores” is the trade name of Pik-a-Pak Grocery Corporation as allowed by R.S. 51:211 as follows:

“D. The term ‘trade name’ means a word, name, symbol, device or any combination thereof used by a person to identify his business, vocation or occupation and distinguishes it from the business, vocation or occupation of others.
“E. The term ‘person’ as used herein means any . . . corporation .

We hold that “Li’l General Stores” is the trade name of Pik-a-Pak Grocery Corporation, a legal entity having capacity to contract.

Having concluded that the two options were validly executed, thus extending the sublease between Russell Cuoco and Pik-a-Pak Grocery Corporation, we now turn to the second major issue in this case: Did the trial court err in- ordering Pik-a-Pak’s eviction? In answer to this question, we turn to the terms of the lease.

The sublease provided that Pik-a-Pak Grocery Corporation comply with all laws and ordinances in effect or to be enacted. It additionally provided the following crucial language:

“Should the lessee at any time violate any of the conditions of this lease, or discontinue use of the premises for the purpose for which they are rented, or fail to pay the rent, water bill, or other expenses assumed under this lease, punctually at maturity, as stipulated; or upon the adjudication of the lessee in bankruptcy the appointment of a receiver for the lessee, or the filing of a bankruptcy, receivership, or respite petition by the lessee; or upon lessee’s suspension, failure or insolvency; and should such violation continue for a period of five (5) days after written notice has been given to the lessee then at the option of the lessor, the rent for the whole and unexpired term of this lease should at once become due and exi-gible and the lessor shall have the further option at once to demand the entire rent for the whole term or to immediately cancel this lease, or to proceed for past due installments only, reserving its right to later proceed for the remaining installments, all without putting lessee in default. Lessee to remain responsible for all damages or losses suffered by lessor, lessee hereby assenting thereto and expressly waiving the legal notices to vacate the premises. Should án Agent or Attorney be employed to give special attention to the enforcement or protection of any claim of lessor arising from this lease, lessee shall pay, as fees and compensation to such Agent or Attorney an additional sum of ten percent of the amount of such claim, the minimum fee, however, to be $25.00, or if the claim be not for money, then such sum as will constitute a reasonable fee, together with all costs, charges and expenses.
“Failure to strictly and promptly enforce these conditions shall not operate as a waiver of lessor’s rights, lessor expressly reserving the right to always enforce prompt payment of rent, or to cancel this lease, regardless of any indulgences or extensions previously granted. The receiving by lessor or lessor’s representative of any rent in arrears, or after notice or institution of any suit for possession or for cancellation of this lease, will not be considered as a waiver of such notice of suit, or of any of the rights of lessor.” (Emphasis added.)

Additionally, the lease between Cuoco and the owner of the property, the Orleans Parish Levee Board, required that Cuoco keep the property free from litter and that no debris be thrown in the New Basin Canal. This clause was not expressly included in the sublease between Cuoco and Pik-a-Pak, however, Cuoco argues that the anti-litter restriction is covered by the general language “all laws or ordinances” in Pik-a-Pak’s sublease.

On July 12, 1978 as evidenced by the post office return receipt, Pik-a-Pak received a letter dated June 12, 1978 advising Pik-a-Pak that their lease was terminated due to littering. The text of that letter is as follows:

“This is to advise you that I am terminating your lease due to your continual violation of the terms of the lease by your failure to keep the premises clean of litter and debris. You have continually violated local littering laws by allowing litter to be spread all over the area surrounding the store’s location as well as disregarding the terms of the lease whereby you agreed to keep the premises clean.
“This letter is to give you notice that we are terminating your lease and will take whatever action is necessary to dispossess you of the premises.
Sincerely yours,
Russell Cuoco”

Pik-a-Pak was not sent the contractually required five-day notice of noneompliance prior to the receipt of the letter purporting to terminate the sublease. Indeed, the only correspondence ever sent to Pik-a-Pak relative to a littering problem was before 1978 is as illustrated below.

(1) August 9, 1971, letter from D. A. McGovern to Pik-a-Pak (P-11)

(2) March 23, 1972, letter from Cuoco to Pik-a-Pak (P-12)

(3) April 29, 1976, letter from Cerise to Pik-a-Pak (P-14)

(4) June 15, 1976, letter from Cuoco to Pik-a-Pak (p-13)

In contrast to the July 12, 1978 letter purporting to terminate the sublease, the June 15, 1976 letter contained an express notification of noncompliance:

“Unless the matters complained of in the letter are not cleared up within five days from receipt of this letter, I will have no alternative but to immediately cancel this lease ... At the end of the five-day period mentioned above, an inspection will be made . . . ”

On all four prior occasions, the problem was immediately remedied and the sublessor continued to accept the rent. On the occasion of the alleged breach occurring on or about July 12, 1978, however, the sublessor failed to provide the five-day contractual notice of noncompliance which he had afforded the sublessor on previous occasions. The sublessor did, however, continue to accept rent for the months of July, August, September, October and November of 1978.

The sublessor contends that the letter dated June 15, 1976 constituted sufficient notices of noncompliance. We find it hard to believe that notice sent some two years prior constitutes sufficient contractual five-day notice to rectify.

The sublessor further contends that the provision of the lease quoted below relieves him of the responsibility of providing contractual notice:

“Failure to strictly and promptly enforce these conditions shall not operate as a waiver of lessor’s rights, lessor expressly reserving the right to always enforce prompt payment of rent, or to cancel this lease, regardless of any indulgences or extensions previously granted.” (Emphasis added)

While the provision may be used by the lessor to compel the lessee’s future compliance with the lease, it cannot be used by the lessor to avoid his own obligations under the lease; the provision is the lessor’s sword, not his shield. To first allow a lessor to agree to undertake highly specific and technical obligations on a clause by clause basis and then to absolve him from whatever obligation with which he chooses not to comply, would be a total abrogation of the law of contract. Contracts of lease would become worthless facades under the interpretation advanced by the sublessor. We cannot allow this to happen. To do otherwise would be to allow a party to manipulate the contractual and legal time delays. The sublessor cannot evict Pik-a-Pak Grocery Corporation without first affording the sublessee with the five-day rectification period. Di Fatta v. Compagna, 157 So.2d 633 (La.App. 4th, 1963); Governor Claiborne Apartments v. Attaldo, 228 La. 381, 82 So.2d 323 (1955; Canal Realty and Improvement Co., Inc. v. Pailet, 217 La. 376, 46 So.2d 303 (1950); Arms v. Rodriguez, 232 La. 951, 95 So.2d 616 (1957); Lieux v. Dillard, 273 So.2d 880 (La.App. 4th, 1973); Four Seasons, Inc. v. New Orleans Silversmith’s Inc., 223 So.2d 686 (La.App. 4th, 1969).

The disposition of this case on the above stated grounds should not be read to imply that a breach did in fact occur. The subles-sor produced scant evidence that the breach due to littering occurred sometime near the July 12, 1978 letter. Plaintiff introduced some photographs which were of an uncertain date, copies of several ordinances prohibiting littering, and vague testimony indicating that on isolated occasions during the over ten years occupancy of Pik-a-Pak, some litter was evident on the premises. It should be noted that Pik-a-Pak has never been ticketed for littering by any authority charged with the enforcement of those ordinances.

For the reasons cited above, we find that defendant, Pik-a-Pak, validly executed the options extending its written lease with the plaintiff, Russell Cuoco, and that plaintiff failed to give the five-day written contractual notice of violation to the lessee required by said lease, and therefore this eviction proceeding against Pik-a-Pak cannot be maintained and must be dismissed. We also hold that General Host Corporation was not a party in the lease.

Accordingly, we reverse the judgment of the trial court and enter judgment in favor of defendant Pik-a-Pak Grocery Corporation, dismissing plaintiff Russell Cuoco at his costs.

REVERSED.

      . “Mr. Gilly:
      I believe we stipulated or Mr. Moliere and Mr. McGovern stipulated that Pik-a-Pak Grocery Corporation validly extended the terms of the sublease by that letter for the second option.
      Mr. McGovern:
      Stipulated. That’s in the record. That renewed the option.
      Mr. Gilly:
      Between Pik-a-Pak Corporation. And stipulate to that.
      Mr. McGovern:
      We put that in the record.” (Tr. p. 206) * * * * * *
      “Mr. Gilly:
      At this time, I would like to point out it’s my understanding the parties have stipulated that the lease was validly extended in the provisions at the original sublease by the document he is showing Mr. Mucci. So, if we can, stipulate that both documents represents valid exercise of the options to extend the lease.
      Your Honor, we stipulated to that in your office, if you will recall, after a rather heated session.
      Mr. McGovern:
      I’m trying to establish, I was wondering if he had any knowledge of this. Okay? Mr. Cuo-co signed it. I could introduce it that way too.
      Mr. Gilly:
      I will stipulate to the admissibility.
      Mr. McGovern:
      ■ Will you stipulate that we submit these into the record, these two?
      Mr. Gilly:
      Yes.
      Mr. McGovern:
      This is Exhibit P-47 and P — 48.
      Mr. Gilly:
      Or joint Exhibits One and Two.” (Tr. pp. 183-184)
      ******
      “Mr. Moliere:
      Your Honor, am I under the false impression? Didn’t we stipulate to that in you office, that (in) the 1962 lease both of the options were extended?
      The Court:
      That was my impression.
      Mr. McGovern:
      Yes.
      The Court:
      I don’t think he is questioning that.
      Mr. McGovern:
      I’m not questioning that. I want to put in evidence this is how they were renewed and everything. I am not questioning you had possession of the letter.

        The Court:
      Here’s a copy.
      Mr. Moliere:
      I don’t know what purpose it serves. I have no objection to it. I want it understood we have to settle that other issue.
      Mr. McGovern:
      They are under the option, right.
      Mr. Gilly:
      I believe we may have the original signed document in here.
      Mr. McGovern:
      You want to stipulate to admit we both agreed to admit this? I will mark it and put it in there.” (Tr. pp. 185-186)

      . Exhibit P-48

      . Exhibit P-49


source: Caselaw Access Project

author: STOULIG, Judge.

license: Public Domain

text:
    Murriell WALKER v. Louis GAUTHIER et al.
    No. 10683.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 10, 1980.

      Darleen M. Jacobs, New Orleans, for plaintiff-appellant.
    Manuel A. Fernandez, Chalmette, for defendant-appellees.
    Before GARRISON, CHEHARDY and STOULIG, JJ.
   STOULIG, Judge.

This is an appeal from a jury verdict judgment dismissing plaintiff’s suit for personal injuries allegedly caused by the defendant’s negligence while she was a passenger in her husband’s automobile.

In response to the interrogatories propounded to it, the jury found defendant’s negligence was the proximate cause of the accident and that plaintiff had a preexisting arthritic condition which was not caused or aggravated by the accident. No appeal was taken by defendant and therefore the question of his negligence is not before us.

The facts surrounding the occurrence of the accident are not in dispute. On December 23, 1976 a collision occurred in St. Bernard Parish between an automobile operated by plaintiff’s husband in which she was a passenger and a ear driven by defendant Louis Gauthier. The impact was slight and resulted in minimal damage to both vehicles. A trial by jury was granted on defendant’s request.

Plaintiff’s appeal presents two issues for our consideration: (1) was the charge of the trial judge on the question of the aggravation of plaintiff’s preexisting arthritic condition improper and did it constitute a commenting on the evidence within the prohibition contemplated by C.C.P. 1792; and (2) did the jury commit manifest error in holding that the plaintiff’s back pain was neither aggravated nor caused by the accident?

Plaintiff’s first specification of error is directed towards this part of the jury charge:

“If you find from the evidence that the plaintiff had arthritis before the occurrence in question and if you find from the evidence that the arthritic condition has become worse since the occurrence in question, but that the increase in severity directly and proximately resulted from natural causes or would have occurred regardless of any negligence on the part of the defendant and not as a result of said occurrence, then, if you so find, you are instructed that the plaintiff would not be entitled to damages for such increase in severity.
If you find for the plaintiff on the question of liability and if you find from a greater weight of the evidence that the plaintiff’s previous condition of health was made worse by the injuries received in this occurrence you are allowed to consider in mitigation of the damages the fact that the plaintiff sought no medical attention immediately after the accident.
If you find for the plaintiff on the question of liability and if you find that the arthritic condition has become worse as a result of the occurrence in question and that the increase of severity is a direct and proximate cause of the accident, then, if you so find, you are instructed that the plaintiff would be entitled to damages for such increase in severity.”

We find nothing improper in the above charge to the jury. In view of the medical testimony adduced on behalf of the plaintiff this instruction is warranted and is a proper statement of the law. This court in Reeder v. Allstate Ins. Co., 235 So.2d 111 (La.App. 4th Cir. 1970), held:

“The court’s duty in framing its charge is to explain the law applicable to the case as a whole and applicable to all the contingent fact conclusions before the jury. The appropriate exercise of this function requires only that the trial judge determine that a requested instruction is, in a broad sense, relevant to any issue properly before the jury. It is for the jury in fact finding to assess the applicability of a. charge to the merits of the case. That specific charges may rest upon mutually exclusive or incompatible fact determination is irrelevant, so long as the incompatibility is adequately explained to the jury.”

Appellant further contends that the above charge is a recapitulation of the evidence and directed the jury’s attention to plaintiff’s arthritic condition and when considered in relation to the interrogatories propounded to the jury amount to a comment upon the evidence.

We find no merit in the contention. The court was merely instructing the jurors on the law applicable to the issues presented to it for determination. In fact the trial court was extremely careful to avoid any action or statement which could be construed as a comment on the probative value of the evidence. It specifically charged the jury as follows:

“If, during the course of this trial, or in the course of these instructions, you have gained the impression that the Court has any opinion respecting what may or may not be a fact, or what is true and what is not, you will remember that what the Court thinks should in no way influence you or control your determination of what the facts really are. Furthermore, if, during this charge, you gain the impression that emphasis has been laid or not laid upon some fact, you must ignore such an impression, for it is not the Court’s intention or purpose to create it, and, as already stated, you and not the judge must determine and decide the facts in this case.”

Plaintiff next submits that the jury was guilty of manifest error in finding that plaintiff’s medical condition was not related to the accident.

We disagree. Applying the principles enunciated in Canter v. Koehring Co., 283 So.2d 716 (La.1973), and Arceneaux v. Domingue, 365 So.2d 1330 (La.1979), we are mandated not to disturb factual findings of the trial court in the absence of manifest error provided the record as a whole establishes such findings are not clearly wrong. In the instant case the evidence amply sustains the jury’s conclusion of no proximate cause or aggravation.

A review of the record discloses no complaint of injury was lodged with the investigating officer at the scene of the accident. Plaintiff's explanation why she failed to consult her family physician until a month after the accident is most implausible. She testified that she made several attempts to see her doctor during this period but the pain was so agonizing that she had to leave his waiting room and return home to treat her back. This testimony was contradicted by her deposition in which she stated she waited three or four weeks because she thought the pain would “go away”. The jury could consider this evidence and other statements by the plaintiff as adversely reflecting on her credibility.

The only expert medical evidence was presented by plaintiff and it consisted of the testimony of her treating physician, Dr. Lucas DiLeo, a general practitioner, and Dr. Kenneth Vogel, a neurological surgeon. The testimony of these two doctors was confusing and at times contradictory. The jury was well within its province in finding that plaintiff failed to bear the burden of proof to sustain her complaints were causally related to the accident.

Dr. DiLeo treated Mrs. Walker 16 times between June 20,1977 and January 9, 1978. With the exception of two occasions he found muscle spasms present ranging from severe to minimal. Interestingly enough, he found muscle spasms a week after Dr. Vogel examined plaintiff and found no spasms.

Dr. DiLeo diagnosed plaintiff’s condition as muscle spasm in the paraspinous lumbar sacral region. Though not completely asymptomatic, Mrs. Walker was discharged on July 15, 1977 and instructed to return if the symptoms reoccurred. She did not again consult Dr. DiLeo until five months later on December 13, 1977, at which time her condition was diagnosed as tenderness of the bilateral paraspinous lumber region L-l through 5 and S-l with a moderate degree of muscle spasm.

Under cross-examination Dr. DiLeo testified xrays showed plaintiff had scoliosis which most often is acquired over a period of time due to weight bearing, which could account for the fact that Mrs. Walker’s condition did improve when her weight dropped from 175 pounds to 161 pounds. In addition, the xrays also revealed plaintiff had a degenerative disc condition. This doctor stated unequivocably both of these conditions were present before the accident. Subsequent xrays on July 6, 1977 did not indicate any degenerative arthritis but confirmed the presence of scoliosis.

Dr. Kenneth Vogel saw plaintiff on one occasion December 6, 1977. His xrays showed a small plantar spur of the right heel; abnormalities with a narrowing of L-5, S-l disc; slight subluxation of L — 4 and L-5; and a slight degree of osteoarthritis. His diagnosis was that Mrs. Walker has a chronic lumbar sacral strain and an asymptomatic plantar spur. Under cross-examination Dr. Vogel testified that the aggravation of a chronic lumber sacral strain does not require a trauma and may be caused by action as bending over to turn on a television set. He further testified that he looked for but did not find any muscle spasm.

Admittedly both doctors related plaintiff’s complaint to the accident based solely on the history furnished by her. This in itself is not unusual but must be taken into consideration by the jury in assessing the probative value of this testimony.

Thus from the foregoing the medical testimony leaves a lot to be desired from the standpoint of consistently establishing plaintiff’s pathological condition and its causes. The jury resolved this uncertainty against plaintiff and factually concluded that Mrs. Walker failed to bear the burden of proof that her back complaints were either caused by or were aggravated by the accident. We find no manifest error in these conclusions.

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

AFFIRMED.

      . C.C.P. art. 1792:
      “In his charge to the jury the judge shall instruct the jurors on the law applicable to the cause submitted to them, but he shall not recapitulate or comment upon the evidence so as to exercise any influence upon their decision as to the facts.”


author: GULOTTA, Judge.

text:
    Eugene E. SCHAEFER, Jr. v. Judith McCasland, Wife of Eugene E. SCHAEFER, Jr.
    No. 10702.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 10, 1980.
    Rehearing Denied Feb. 20, 1980.

      Harry A. Burglass and Phyllis C. Coci, Metairie, for plaintiff-appellee.
    Dymond, Crull & Castaing, F. Irvin Dy-mond, Edward J. Castaing, Jr., Carol Lynn Doskey, New Orleans, for defendant-appellant.
    Before SAMUEL, LEMMON and GU-LOTTA, JJ.
   GULOTTA, Judge.

Judith Schaefer appeals from a judgment annulling her marriage to plaintiff and declaring that she is not a putative wife. We affirm.

Defendant claims the trial judge erred (1) in concluding that a Dominican Republic divorce was invalid; (2) in failing to hold that Eugene Schaefer was estopped from attacking the validity of the foreign decree; and (3) in finding that Judith was not a putative wife.

The parties to this litigation were married in the Parish of Jefferson on February 12,1975, after Eugene Schaefer had obtained a divorce from his former wife in the Dominican Republic on January 28, 1975. In January 1976, subsequent to his foreign divorce and his marriage to Judith, Eugene obtained a Louisiana decree divorcing his former wife. Judith Schaefer testified that she and Eugene had gone to Santo Domingo for the purpose of obtaining the divorce, even though they knew he would ultimately obtain a Louisiana divorce, because “we had been living together since November and it didn’t look good to his friends.” Some time after the Louisiana divorce decree was obtained, discord apparently developed between the parties and in June 1978 Eugene filed a suit for annulment of the February 12,1975 marriage based on the invalidity of the foreign decree. The parties had never undergone a marriage ceremony subsequent to the 1976 Louisiana divorce decree between Eugene and his former wife.

At the outset we reject Judith’s contention that the trial judge erred in finding the Dominican Republic divorce invalid. The testimony is uncontradicted that Eugene, although a resident of the State of Louisiana, went to Santo Domingo with Judith specifically to obtain the foreign divorce decree, returning to Louisiana immediately afterward. As far as we can determine from the record, Eugene’s former wife did not give her mutual consent for the divorce; notice to the former wife was apparently through a three-week listing, in a Dominican Republic newspaper, of intent to obtain a divorce. There is no evidence that Eugene’s former wife had signed a power of attorney or was represented by counsel.

In Super v. Burke, 367 So.2d 93 (La. App. 4th Cir. 1979), affirmed La., 374 So.2d 1250, this court affirmed a judgment holding a Dominican Republic divorce invalid under circumstances factually similar to the instant case. (Unlike our case, however, the absent wife in the Super case had signed a power of attorney and was represented by counsel in the Dominican Republic.) See also Everett v. Everett, 345 So.2d 586 (La.App. 4th Cir. 1977), writ denied La., 349 So.2d 329. We have no difficulty in concluding in our case that the trial judge was correct in his finding that the Dominican Republic divorce decree was invalid.

We reject Judith’s claim, that Eugene was estopped from asserting the invalidity of the foreign decree because he married Judith in a Louisiana ceremony in reliance on that decree.

In Super v. Burke, supra, we were confronted with the same argument and rejected it, on the ground that estoppel cannot be urged to impair the force and effect of a prohibitory provision of law. We stated that when one of the contracting parties was legally married at the time of the confection of the second marriage, the purported marriage is an absolute nullity and may be impeached by either of the parties to the marriage or by any other party in interest. See also Louisiana Civil Code article 93; Everett v. Everett, supra; Clark v. Clark, 192 So.2d 594 (La.App. 3rd Cir. 1966); Burrell v. Burrell, 154 So.2d 103 (La.App. 1st Cir. 1963); Prieto v. Succ. of Prieto, 165 La. 710, 115 So. 911 (1928).

We conclude, therefore, that Eugene Schaefer was not estopped from asserting the invalidity of the foreign divorce decree.

Finally, we find no merit to Judith’s contention that the trial judge erroneously concluded she was not a putative wife. In order to be entitled to the benefits of the civil effects flowing from a putative marriage, a person must have acted in good faith at the time the marriage was contracted. LSA-C.C. arts. 117 and 118. Furthermore, a determination of good faith depends on the facts and circumstances in each case. Succ. of Zinsel, 360 So.2d 587 (La.App. 4th Cir. 1978), writs denied La., 363 So.2d 72; Succ. of Hopkins, 114 So.2d 742 (La.App. 1st Cir. 1959). It is presumed that a marriage was contracted in good faith, and the burden of proving the contrary rests on the party who alleges it. Succession of Pigg, 228 La. 799, 84 So.2d 196 (1955).

In the instant case the trial judge found, in written reasons for judgment, that Judith Schaefer was not in good faith at the time of the February 12, 1975 marriage and subsequent to the marriage because she was aware that the foreign divorce was “clouded.” He then concluded that she is not entitled to the status of a putative wife. Because of the contradictory nature of the testimony relating to Judith’s awareness or lack of awareness of the questionable validity of the foreign decree, it is clear that the court’s conclusions, absent manifest error, should not be disturbed on appeal. We find no such error.

Eugene Schaefer testified that Judith was present during all discussions relating to the arrangements for the Dominican Republic divorce. The legality or illegality of that decree was discussed with her and with others in her presence. According to plaintiff, Judith was with him when he sought legal advice and was told by an attorney that no problem existed insofar as the foreign decree is concerned “if nobody contested the marriage.” Eugene testified further that the questionable nature of the foreign decree was discussed on many occasions with Judith, and that both were concerned about the invalidity of the decree. They had discussed, according to Eugene Schae-fer, the possibility of remarriage after the Louisiana divorce decree had been obtained. He also stated that Dominican Republic counsel advised the parties that, lacking the consent of Schaefer’s former wife, he could not assure them of the validity of the foreign decree.

Although Judith testified that she “never questioned” the validity of plaintiff’s foreign divorce, and she denied questioning its illegality with other persons, her testimony was contradicted by three mutual friends of the parties. Marshall Pierce testified that shortly after the Dominican Republic divorce, plaintiff and defendant had discussed with him the question of the legality of their marriage because of the questionable validity of the foreign decree. He stated further that part of the discussion related to the parties becoming remarried after Eugene obtained the Louisiana divorce decree.

Michael and Jeannette Belsley, mutual friends of the Schaefers, testified by deposition concerning discussions with plaintiff and defendant about the invalidity of the foreign divorce decree. Jeannette Belsley testified these discussions began in February 1978, when Gene Schaefer announced one night that he had just discovered his marriage to Judy might be invalid. According to Michael Belsley, the Schaefers both showed concern that their marriage might not be valid. Mr. Belsley testified further that there were two or three other discussions, subsequent to the initial one, concerning the foreign divorce and subsequent marriage. Jeannette Belsley generally corroborated the testimony of her husband, and said that at the time of the initial discussion both Gene and Judy appeared surprised and upset.

In additional reasons, the trial judge stated:

“It is the opinion of the court that considering the totality of events, the fact that defendant accompanied plaintiff to the Dominican Republic to be with him when he obtained his speedy divorce, and that she later learned that the divorce was questionable, takes her out of the good faith shelter . . . ”

The record clearly supports the trial court’s opinion. Having so concluded, we affirm the judgment of the trial court.

AFFIRMED.


author: HOOD, Judge.

text:
    Gertrude Barbara Widow of Terrance P. McDermott v. Alwynn J. CRONVICH, Sheriff, Jefferson Parish, et al.
    No. 10803.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 10, 1980.

      Kronlage, Dittmann & Caswell, Charles A. Kronlage, Jr., New Orleans, for plaintiff-appellant.
    Robert I. Broussard, Gretna, for defendants-appellees.
    Before BOUTALL, SCHOOT and HOOD, JJ.
   HOOD, Judge.

Gertrude Barbara, widow of the late Terrance B. McDermott, seeks to recover workmen’s compensation benefits alleged to be due as the result of the death of her husband. One of the defendants, Alwynn J. Cronvich, Sheriff of Jefferson Parish, filed a Motion for Summary Judgment, and in response to that motion a summary judgment was rendered by the trial court dismissing plaintiff’s suit insofar as it is directed against that defendant. Plaintiff appealed. We reverse and remand.

The issue presented is whether the trial court erred in refusing to permit plaintiff to file a supplemental and amended petition while a motion for summary judgment was pending.

Terrance P. McDermott died on December 15, 1977, while he was employed as a Deputy Sheriff for the Parish of Jefferson. His widow instituted this suit for workmen’s compensation benefits on November 28, 1978, alleging that her husband’s death occurred during the course of his employment. She named as one of the defendants Alwynn J. Cronvich, Sheriff of Jefferson Parish. Sheriff Cronvich filed a motion for summary judgment in January, 1979, and a supplement to that motion in March of that year. In his motion he alleged that plaintiff’s husband was a Deputy Sheriff at the time of the incident and death, and that under LSA-R.S. 23:1034 as deputy sheriff is not covered by the provisions of the workmen’s compensation law of the State of Louisiana.

The record contains a copy of a minute entry signed by a Deputy Clerk of the trial court, dated April 9, 1979, stating that the Motion for Summary Judgment was to be submitted on briefs by April 13. The minute entry reads: “Mot for Sum. Judg. to be submitted on briefs by Friday, Ap. 13, 1979.”

On April 12,1979, plaintiff filed a Second Supplemental and Amended Petition, in which she alleged, among other things, that LSA-R.S. 23:1034 is unconstitutional in that it deprives her of the equal protection of the laws, in violation of the equal protection guaranties contained in our Federal and State constitutions. The record indicates that this supplemental petition was presented to the court for an order permitting it to be filed, but that the trial judge declined to sign the order. Actually, the signature of the trial judge appears to have been affixed to the order authorizing the amended petition to be filed, but his signature there was lined out or partially obliterated and the following notation appears at the end of that pleading:

“4/12/79
Denied — filed after submission of case
Patrick E. Carr, Judge”

On April 19, plaintiff filed a “Memorandum in Opposition to Motion for Summary Judgment,” in which she stated that she had filed a supplemental petition on April 12 attacking the constitutionality of LSA-R.S. 23:1034. She submitted arguments in that memorandum or brief to support her allegations of unconstitutionality.

On April 20, 1979, the trial judge rendered and signed a summary judgment in favor of defendant Cronvich, and against plaintiff, dismissing plaintiff’s suit as to that defendant at her costs. On the same day he handed down written reasons for judgment. Plaintiff appealed from that summary judgment, and that appeal is before us now.

In his written reasons for judgment, the trial judge stated that there are no material issues of law or fact, that R.S. 23:1034 and the jurisprudence interpreting it establish that deputy sheriffs of the parishes around the state are not covered by the Louisiana Workmen’s Compensation Act, and that defendant Cronvich thus is entitled to a summary judgment dismissing the suit as to him. The trial judge did not consider the constitutional question which was raised in the Supplemental and Amended Petition offered by plaintiff.

Plaintiff contends that the trial court erred in denying her the right to file her Supplemental and Amended Petition on April 12, 1979. She and defendant Cron-vich agree that the constitutional questions raised by plaintiff in her Second Supplemental and Amended Petition are not before us on this appeal. The sole issue presented is whether plaintiff should have been permitted to file the above supplemental and amended petition at the time and under the circumstances presented here.

LSA-R.S. 23:1315, relating to workmen’s compensation suits, contains the following provision:

“The court may in its discretion grant further time for filing the answer or hearing the petition and allow amendments of the petition and answer at any stage of the proceedings.” (Emphasis added).

LSA-R.S. 23:1317 states that “The court shall not be bound by technical rules of evidence or procedure other than .as herein provided . . . ”

In applying the above quoted provisions of the Workmen’s Compensation Act, our courts have held consistently that: (1) In compensation eases the court should not be bound by technical rules of procedure; and (2) amendments to pleadings should be liberally granted. Courts have stated in some instances that amendments to pleadings in compensation cases are permissible at any stage of the proceedings. James v. Acme Window Cleaners, 139 So.2d 586 (La.App. 4th Cir., 1962); Schiro v. Maryland Casualty Company, 193 So.2d 289 (La.App. 4th Cir., 1966); Tate v. Gullett Gin Company & Liberty Mutual Ins. Company, 86 So.2d 698 (La.App. 1st Cir., 1956); Brewton v. L. L. Brewton Lumber Co., Inc., 349 So.2d 1364 (La.App. 2nd Cir., 1977); Ryan v. Aetna Casualty and Surety Company, 161 So.2d 286 (La.App. 2nd Cir., 1964).

In James v. Acme Window Cleaners, supra, the plaintiff made an oral request for leave to amend his petition in a workmen’s compensation case while the suit was being tried on its merits. His request was denied by the trial court, and judgment was rendered about two months later. Three days after that judgment was rendered plaintiff presented to the court a formal supplemental and amended petition alleging additional injuries and causes of disability, but the trial court refused to allow the supplemental petition to be filed. On appeal, we reversed the decision of the trial court and remanded the case with instructions to permit the amendment requested by plaintiff. In so holding, we said:

“Without expressing any opinion on the merits of the controversy at this stage we are of the opinion that in the interest of justice the amendment should have been allowed when first requested during the trial. In compensation cases the paramount duty of the courts is to learn the true facts without too much regard for technical rules of evidence or procedure. Amendments to pleadings in compensation cases are permissible at any stage of the proceedings.” (Emphasis added).

In Schiro v. Maryland Casualty Company, supra, the plaintiff and defendant filed a joint petition for approval of a compromise settlement of a workmen’s compensation claim, but the trial judge rendered judgment rejecting the proposed compromise settlement. About ten months after that judgment was rendered, plaintiff submitted a supplemental and amended petition to the original joint compromise agreement, in which he asserted a cause of action against defendant. The defendant excepted to that filing of the amended petition on the ground that it was procedurally improper for plaintiff to be permitted to amend and supplement the compromise petition and thus convert the matter into an adversary action. The exception was overruled by the trial court, and we granted writs. On review, we reversed the trial judge, primarily on procedural grounds. In doing so, however, we made the following observations:

“In determining this question this Court must consider it against the background of two basic principles of workmen’s compensation procedure: (1) In compensation cases the court should not be bound by technical rules of procedure, LSA-R.S. 23:1317; and (2) Amendments should be liberally granted.
Moreover, this Court held in James v. Acme Window Cleaners, 139 So.2d 586 (La.App.1962) that a supplemental pleading in a workmen’s compensation proceeding can be filed even after judgment. However, in the cited case the supplemental and amending petition was filed three days after the judgment was rendered and signed and within the delay for application for a new trial, which plaintiff did, in fact, apply for.” (193 So.2d 289, 290 and 291).

The First Circuit Court of Appeal said in Tate v. Gullett Gin Company & Liberty Mutual Ins. Co., supra, that “Amendments are permissible at any stage of such a case [workmen’s compensation suit], even in the Supreme Court, Mitchell v. Sklar, La.App., 196 So. 392, 394.” In Ryan v. Aetna Casualty and Surety Company, supra, a suit for workmen’s compensation benefits, the Second Circuit Court of Appeal held that “amendments to the petition may be made at any stage of the proceedings.” And, in Camet v. Aetna Ins. Co., 175 So. 152 (La.App.Orl.1937), a workmen’s compensation suit, the Court of Appeal, Orleans, stated that “we are inclined to the view that an amendment should be allowed even after submission of the case for judgment.”

Considering the provisions of LSA-R.S. 23:1315 and 1317, and the jurisprudence which has interpreted those statutory provisions, we think the court may permit amendments of the petition and answer in workmen’s compensation suits at any stage of the proceedings, but that the court must allow the amendment of the petition or answer in any such suit if the amended pleading conceivably could affect the outcome of the case and if it is presented before final judgment is rendered.

In the instant suit plaintiff presented and attempted to file a supplemental and amended petition eight days before a summary judgment was rendered dismissing her suit as to one defendant. It is true that the motion for summary judgment was pending at the time the supplemental petition was offered, but the amended pleading was presented one day before that motion for summary judgment was scheduled to be submitted on briefs. During the eight day period which elapsed between the time plaintiff attempted to file the amended petition and the date on which the judgment of dismissal was rendered, she filed a memorandum or brief in which she submitted to the court arguments which she felt supported the allegations contained in her amended pleading. No other judgment has been rendered in this suit, and the case has never been tried on the merits.

Under the circumstances presented here, and in view of our established jurisprudence, we think plaintiff should have been allowed to file the Supplemental and Amended Petition presented by her on April 12, 1979, and that the trial judge erred in denying her that right. The judgment appealed from thus must be reversed and the case remanded to the trial court. Although the judgment of the district court is being reversed and the case remanded, we express no views at all on any of the issues presented by the original or amended pleadings.

The summary judgment appealed from is reversed, and the case is remanded to the trial court with instructions to permit the filing of the Supplemental and Amended Petition requested by plaintiff, to hear and consider the issues raised by the pleadings, and to render such judgment or judgments as may be warranted by the law and the evidence. The costs of this appeal are assessed to defendant-appellee, Alwynn J. Cronvich.

REVERSED AND REMANDED.


author: GARRISON, Judge.

text:
    James Edward GURRY v. ALLIED METALS, INC.
    No. 10885.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 10, 1980.
    Turner & Young, Thomas M. Young, New Orleans, for petitioner.
    Brierre & Malone (Eugene D. Brierre), New Orleans, for defendant-appellant.
    Before GARRISON, CHEHARDY and STOULIG, JJ.
   GARRISON, Judge.

Petitioner brought this action 'seeking damages for a job related injury sustained by him on October 20, 1977, at Allied Metals, Inc. The district court rendered judgment in favor of plaintiff granting damages in the amount of $15,008.92 (consisting of $9,685.17 past due workmen’s compensation benefits for 66 weeks, $1,452.75 penalty interest for 66 weeks, $3,500.00 attorney fees, $121.00 court costs, and $250.00 expert fees) plus $140.57 per week for the duration of petitioner’s disability, and all medical bills and expenses incident thereto past, present and future. From that judgment, Allied Metals appealed alleging that petitioner was not injured on the job and that if petitioner was injured, it was not while working in the course and scope of his employment or alternatively, if he was injured on the job, petitioner failed to carry his burden of proof. We agree with the ruling of the trial court and affirm the judgment on appeal.

Mr. Gurry testified that on the day of the accident, David Freeman, a co-owner of Allied Metals and Mr. Gurry’s brother-in-law, directed him to remove miscellaneous scrap metal from an area known as the rear yard. During the course of the work, claimant attempted to lift a 50-pound piece of scrap metal and felt a “pop” in his back. Gurry worked the rest of that day and continued to work over the next several weeks with increasingly severe back pain. Finally, on November 2, he found that it was impossible to get out of his automobile. Over the course of the next several months, he underwent conservative treatment and implantation of a T & S Nerve Stimulator. Three electromyograms indicate lumbar nerve root damage and a myelogram indicates a ruptured disc at the L4-5 level. It has been recommended that petitioner undergo a lumbar laminectomy.

Allied Metals, Inc. argues that petitioner failed to meet his burden of proving that he sustained a work-related injury and that a non-work related accident may have caused his injury. The record does not disclose such a causative event occurring off the job. Additionally, this contention was only raised for the first time on appeal. David Freeman testified that he remembered ordering Gurry to move the materials. Additionally, Sam Freeman, the other co-owner and Mr. Gurry’s father-in-law, remembered talking to Gurry about the accident, although he cannot remember if that conversation occurred on the date of the accident. Sam Freeman’s testimony is entirely consistent with petitioner’s version of the accident.

Prior to the institution of the litigation, Allied Metals suddenly refused to pay petitioner’s medical bills. Until this time, Allied Metals had been paying for the treatment rendered to claimant as a result of the accident. It was discovered that Allied Metals had dropped its workmen’s compensation insurance some six months prior to the incident sued upon. '

We recognize that plaintiff has the burden of showing by preponderance of the evidence that the accident and disability were work connected. Guillory v. New Amsterdam Casualty Co., 244 La. 225, 152 So.2d 1 (1963). However, the testimony of an employee alone may establish a work-related disabling accident where such testimony is corroborated by other credible evidence. Wright v. Red Ball Motor Freight, Inc., 315 So.2d 344 (La.App. 1st, 1975); Dragon v. Orleans Parish School Board, 347 So.2d 306 (La.App. 4th, 1977). We find that there is sufficient evidence in the record to support the conclusion of the trial judge. Accordingly, the judgment of the district court is affirmed.

AFFIRMED.


text:
    Glenn L. JONES v. BROWN & ROOT, INC., et al.
    No. 10906.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 10, 1980.

      Ronald A. Welcker, Arabi, for plaintiff - appellee.
    william j. Sommers, Jr., Christovich & Ke New 0rleans, for defendants-appellants.
    Before GARRISON, CHEHARDY and STOULIG, JJ.
   STOULIG, Judge.

This appeal involves a workmen’s compensation claim and provides for consideration the following issues: (1) did the trial court err in finding that the plaintiff was “disfigured” within the meaning of the workmen’s compensation statute and in applying R.S. 23:1221(4)(p); and (2) were the defendants arbitrary in stopping compensation payments when plaintiff was released for “light duty” work by the company doctor?

It is undisputed that on November 8, 1977, plaintiff, Glenn Jones, suffered a laceration of his right eye caused by a flying fragment of cement while in the course and scope of his employment as a common laborer with the defendant, Brown & Root Inc. Immediately after the accident plaintiff was taken to the hospital and placed under the care of the company’s ophthalmologist, Dr. Martha Lea. His eye was sutured and plaintiff was hospitalized for a period of eight days. Two days later Dr. Lea stated plaintiff could return to “light duty” work of sitting around. Plaintiff disputed his ability to return to work, maintaining his eye was still paining him and he was unable to drive. At this point in time he was still wearing an eye patch over the injured member.

The following month plaintiff consulted Dr. Earl L. Nelson, ophthalmologist who found Jones suffering from photophobia (sensitivity and pain to light). He removed a non-absorbable suture from plaintiff’s eye. In the opinion of this expert plaintiff was not able to return to work until January 20, 1978.

Dr. Lea rated plaintiff’s disability of the right eye as approximately 15% loss of central vision; whereas Dr. Nelson assessed the impairment at 15 to 25%. Both experts agreed that eyeglasses would correct the deficiency in plaintiff’s vision.

Although the trial judge found as a matter of fact that plaintiff suffered a 15 to 20% loss of his normal sight, he concluded that “glasses are a cosmetic defect, more akin to serious disfigurement of the face and head rather than the loss of use of function of the eye”. He reasoned that plaintiff did not suffer the partial loss of the use of his eye because his sight deficiency could be corrected with glasses, but since the accident will cause plaintiff to wear glasses the remainder of his life, which is “akin to serious disfigurement”, he awarded compensation under § 1221(4)(p).

We find no authority, statutory or jurisprudential, either in support of or against the position that the wearing of glasses per se is a serious disfigurement within the contemplation of § 1221(4)(p) of the compensation statute. The result we reach in this matter does not require us to pass upon this issue.

Plaintiff in support of the trial court’s judgment relies upon the case, Curry v. Vanantwerpen, 378 So.2d 793 (La.App.3d Cir. 1973). In opposition to the judgment, defendants cite LaFleur v. Seaboard Fire and Marine Insurance Co., 296 So.2d 860 (La.App.3d Cir. 1974), writ refused 300 So.2d 185 (La.1974).

The facts in each of these cases are strikingly similar. In each instance the employee suffered a 20% loss of vision which was corrected or alleviated in Curry by the use of eyedrops and in LaFleur by the use of eyeglasses. LaFleur awarded compensation under § 1221(4)(i), (o) because it specified the benefits for the loss of the member involved; whereas, Curry awarded the benefits under § 1221(4)(p) because the loss was permanent.

Obviously in Curry the court overlooked the qualifying statement at the beginning of § 1221(4)(p) which reads: “in cases not falling within any of the provisions already made . .” and was guided by the language “. . the physical function is seriously permanently impaired . . .”

We hold that LaFleur is the correct method of determining compensation benefits for a loss involving the eye. Where the statute provides a specific schedule of compensation for the loss, or partial loss, of use or function of a member, it shall control and shall prevail over the general savings section of the statute covering those injuries to unlisted members. The partial permanent loss of the use or function of the eye falls within the specific provisions of the statute and as a result the provisions of § 1221(4)(p) are rendered inoperative.

Plaintiff sustained a permanent 25% loss of use or function of the eye and his right to compensation must be computed under § 1221(4Xi), (o). Twenty-five percent of sixty-six and two-thirds percent of plaintiff’s weekly wage of $190 amounts to $31.50 per week, which is less than the weekly minimum of $39 provided in the Act. Therefore, plaintiff is entitled to the minimum of $39 per week for 100 weeks.

The remaining issue is did the trial court err in imposing statutory penalties and attorney’s fees for defendant’s arbitrary failure to pay plaintiff his compensation benefits?

We find it did not. The record reflects that plaintiff received one compensation payment of $126. It is now well settled where the employee’s compensation claim falls within the loss of use or function of a member, the employer is not justified in terminating all benefits until the amounts specified in the schedule under § 1221(4) are fully paid. And when, as in this case, the medical report of the company doctor reflects a partial disability, in order to avoid penalties the employer must tender the benefits due at least to the extent of such partial disability. Lucas v. Ins. Co. of North America, 342 So.2d 591 (La.1977); Dufrene v. St. Charles Parish Police Jury, 371 So.2d 378 (La.App. 4th Cir. 1979); Burandt v. Slicky’s Pizza Parlor, 377 So.2d 905 (La.App. 4th Cir. 1979). The defendant’s action was properly adjudged by the trial court as being arbitrary and capricious under the law.

The trial court awarded $2,500 as a reasonable attorney’s fee in the instant matter. Though the trial court is vested with great discretion in fixing these fees, we find this award is excessive.

This court said that:

“[I]n estimating the value of the attorney’s services consideration is given to the responsibility incurred, the extent and character of the work performed, the importance of the questions presented, the amount involved, the success attained and the legal knowledge, attainments and skill of counsel.” Sue. of Gilmore, 239 So.2d 462, 464 (La.App. 4th Cir. 1970).

The trial record consisted of the testimony of one witness of twenty-one (21) pages; the deposition of Dr. Lea of twenty-seven (27) pages; and that of Dr. Nelson of twenty-six (26) pages. There is no evidence of any extraordinary services rendered beyond those in a workman’s compensation claim of this nature and the fee awarded should be commensurate with those services. Sue. of Gilmore, supra; Suc. of D’Antoni, 342 So.2d 1281 (La.App. 4th Cir. 1977). $1,500 should adequately compensate plaintiff’s attorney for all time and materials expended herein.

Defendants are also condemned to pay all medical expenses for the treatment of plaintiff’s eye except the charges for legal reports and for appointments which were not kept by the employee.

Accordingly, the judgment of March 26, 1979 is amended and IT IS NOW ORDERED that there be judgment in favor of the plaintiff, Glenn L. Jones, and against the defendants, Brown & Root Inc. and Highland Insurance Company, in solido, in the sum of $39 per week for a period of 100 weeks commencing on November 18, 1977, subject to a credit for compensation payments made, together with all medical expenses incurred because of said injury, with legal interest thereon from the date of delinquency of each weekly payment until paid; and a penalty of 12% on the total amount of unpaid compensation benefits plus attorney’s fees of $1,500. All costs of these proceedings at the trial and appellate levels, including expert witness fees of $150 each to Dr. Martha Lea and Dr. Earl L. Nelson shall be paid by defendants.

AMENDED AND AS AMENDED, AFFIRMED.

      . Plaintiff cites several other cases which we find to be factually inapposite since they involve the loss of teeth and therefore § 1221(4)(p) is applicable because such a loss does not fall within any of the specific provisions of the Act.

      . “(4) In the following cases, the compensation shall be as follows:
      ******
      (i) For the loss of an eye, sixty-six and two-thirds per centum of wages during one hundred weeks.
      ******
      (o) In all cases involving a permanent partial loss of the use or function of the members mentioned hereinabove, compensation shall bear such proportion to the amounts named herein for the total loss of such members as the disability to such members bears to the total loss of the member, provided that in no case shall compensation for an injury to a member exceed the compensation payable for the loss of such member.”

      . “(4) In the following cases, the compensation shall be as follows:

      (p) In cases not falling within any of the provisions already made, where the employee is seriously permanently disfigured about the face or head, or where the usefulness of a physical function is seriously permanently impaired, the court may allow such compensation as is reasonable and in proportion to the compensation hereinabove specifically provided in the cases of specific disability, not to exceed sixty-six and two-thirds per centum of wages during one hundred weeks.”

      . Based upon the disability rating of Dr. Earl L. Nelson.


author: CHEHARDY, Judge. GARRISON, Judge,

text:
    Chris OWENS v. H & L ENTERPRISES et al.
    No. 10911.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 10, 1980.
    Rehearing Denied Feb. 20, 1980.
    Edward C. Keeton, Gretna, for plaintiff-appellant.
    Bruce S. Johnston, Rutledge & Associates, Metairie, for H & L Enterprises and Hartford Insurance Company, defendants-appellees.
    Before GARRISON, CHEHARDY and STOULIG, JJ.
   CHEHARDY, Judge.

Plaintiff, Chris Owens, has appealed a judgment dismissing his workmen’s compensation suit on an exception of prescription. We affirm.

On the face of the petition, his cause of action has prescribed. He alleges that while in the employ of H & L Enterprises on January 16, 1978 he wrenched his back while lifting a pump and reported the incident to his employer that same day. On February 6, 1978, he told his foreman he was quitting the job because his back hurt. On March 20, 1978, his condition was diagnosed as “ruptured discs” for which he underwent surgery at an undisclosed future date. Plaintiff, in seeking benefits from his employer and its compensation insurer, Hartford Insurance Company, claimed he could not work after February 6, 1978. Suit was filed March 6, 1979.

L.R.S. 23:1209 provides that an injured employee must file suit for workmen’s compensation benefits within a year of the accident. An exception to this rule is made where the disability from the injury does not manifest itself until sometime after the accident, in which case prescription begins to run from the date of manifestation with an outside limitation of two years from the date of the accident.

For plaintiff to come within the extended filing exception, it would be incumbent on him to prove the injury did not manifest itself prior to March 6, 1978. From his own petition it is apparent he became aware of his disability on February 6, 1978, the day he permanently discontinued his employment. In Guillory v. Maryland Casualty Company, 227 So.2d 620 (La. App.3d Cir. 1969), the court in considering L.R.S. 23:1209 pointed out that disability becomes manifest when the workman quits his job because he no longer can perform as a result of an injury. The Guillory court drew a distinction between those cases where the injured workman remained on the job after an accident and attempted to work despite the injury and was later forced to terminate and those instances where the workman quit his job. Once he discontinues his employment because of disability the condition at that point legally has manifested itself. See also Granger v. Nichols Construction Corporation, 202 So.2d 337 (La.App. 1st Cir. 1967).

Appellant points out the exception of prescription was argued in the trial court without his counsel being notified to appear to argue. The judgment on the exception states he was notified but was not present. The record reflects that the clerk of court mailed notice of the fixing of this exception for trial more than one month before the matter was argued and counsel for the ex-ceptor certified he mailed a copy of the exception to plaintiff’s counsel. Appellant’s attorney denied receiving either notice. As a matter of law appellant was not properly cited because any pleading filed subsequent to the original petition must be served through the sheriff if a court appearance is required. C.C.P. arts. 1311 through 1314.

While we agree there is a procedural irregularity, this does not prevent our considering the exception of prescription at this level. The petition on its face reflects plaintiff’s cause of action has prescribed and the exception of prescription was formally pleaded. The thrust of appellant’s argument to us is that the disability did not manifest itself at the time of the accident and prescription should run from the date the back condition was diagnosed as opposed to the earlier date at which the injury manifested itself. Because under C.C.P. art. 927 the pleas of prescription may be raised and considered at any stage of the proceeding, we pass on the merits of the exception and affirm the judgment.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.

GARRISON, J., dissents with written reasons.

GARRISON, Judge,

dissenting.

From the decision of the majority, I respectfully dissent for the following reasons.

The bifurcated nature of R.S. 23:1209 is a well-developed distinction in Louisiana law. The statute’s distinction between “partial disability” and “permanent disability” which is implicit within the prescribed period has been recognized as two different causes of action by our brethren on the First Circuit in Wright v. Aetna Life and Casualty Company, 360 So.2d 235 (La.App. 1st 1978) at 237. The opinion from which I dissent refers to an “extended filing exception” and assumes that only one cause of action exists; I disagree. There are two causes of action with two distinct prescriptive periods.

While the law attempts to order the chronology of events as they would be assumed to normally occur, the affairs of our citizens rarely fall in such tidy and static order. For that reason, the “development of the injury” theory arose in order to alleviate the burden imposed by a static construction of operative facts. In keeping with the bifurcated nature of R.S. 23:1209, the development of the injury theory is applicable to the two different causes of action as two parallel concepts, namely the development of a partial disability and the development of a permanent disability.

One of the criteria established for the development of the injury theory is the concept of “manifestation” of the injury. An operative fact may be the manifestation of a partial disability or a manifestation of a permanent disability. In the instant appeal the plaintiff’s termination of employment was a manifestation of a partial and expectedly temporary disability as is evidenced by the diagnosis of a “pulled muscle”; the injury was not manifest as permanent until it was discovered on March 20, 1978 that plaintiff had suffered vertebral disc damage. While a cause of action for partial disability may have prescribed as it commenced upon termination as manifestation, clearly the cause of action for permanent disability did not prescribe as the period did not begin until the injury was manifest as a permanent injury. This interpretation is entirely consistent with the decision in Burleigh v. Argonaut Insurance Company, 347 So.2d 13, 15 (La.App. 3rd, 1977) wherein the court quoted Mottet v. Libbey-Owens-Ford Glass Company, 220 La. 653, 57 So.2d 218 (1952).

“. . . We then stated the rationale of the cited cases to be an effort to encourage rather than penalize an employee who seeks to continue working, despite what later turns out to be a disability. In the situation where there is an initial manifestation of injury and of disability, but the employee is able to return to work, a new period of prescription of one year will nevertheless commence where there is either a new injury or a disabling remanifestation of the symptoms of the initial injury.”

Just as a new period of prescription of one year would commence for a partial disability, so should a new period of prescription commence for a permanent disability.

Accordingly, I find that the manifestation as permanent did not occur until March 20, 1978. Hence the petition was timely filed and plaintiff’s case was wrongfully dismissed. Even if plaintiff had not filed his petition until some months after it was in fact filed, the diagnosis on March 20, 1978 would have constituted a manifestation as permanent, giving rise to the commencement of a new prescriptive period so that the plaintiff’s case was filed timely and improperly dismissed.


author: SCHOTT, Judge.

text:
    Robin M. GUIDRY v. ST. JOHN AUTO EXCHANGE.
    No. 11113.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 14, 1980.

      C. William Bradley, Jr., Reserve, for plaintiff-appellee.
    William P. Golden, Jr., Carville & Edring-ton, LaPlace, for defendant-appellant.
    Before REDMANN, LEMMON and SCHOTT, JJ.
   SCHOTT, Judge.

This is an action in redhibition by Robin M. Guidry who, on February 6, 1978, purchased a 1972 Vega automobile (the odometer showed 63,325 miles) for $707.50 from defendant St. John Auto Exchange. The .bill of sale contained the following handwritten entry following the printed word “WARRANTY.”

“30 day 50-50 Warranty on Transmission & Differential only.”

Plaintiff testified: Two or three days after the sale she had trouble with the radio, air conditioning and hood latch which were repaired by defendant. Although she had trouble starting the automobile, necessitating the use of jump cables on several occasions, the car ran well until about two weeks after the sale when a piston rod broke as she proceeded along the highway. She had the car towed back to defendant, whose owner Brüce Womack offered to secure a replacement engine for which they would split the cost. She would pay for the installation, and he suggested that she hire James Jouty for this purpose. Jouty installed the replacement engine but the car never started again. When she contacted Womack again he offered to apply the $707 toward the purchase of another car but he made no further efforts to repair the second engine and he refused to take the car back. She paid Womack $50 toward the cost of the second engine, $75 to Jouty to install it and another $35 for parts. She denied that Womack explained that his warranty on the automobile did not extend to the engine and stated that “he was supposed to guarantee the whole car.”

Bruce Womack testified: He had bought the automobile from a dealer in Hammond and drove it back to his shop in LaPlace, and it ran well on this trip. When plaintiff bought the automobile he advised her that the guarantee extended to the transmission and differential only and not to the engine. Within a few days after the sale he did repair the radio and the hood latch and he tuned the engine. When the car was returned to him about two weeks after the sale he reiterated to her that there was no warranty on the engine and it remained on his lot for several weeks. Out of sympathy and a desire to help plaintiff he offered to find a replacement engine for which he would pay half the cost and she would pay the other half as well as installation. Two or three weeks later she brought in $50 and he secured another engine and helped load it on Jouty’s truck when he came for it.

James Jouty testified that he was 16 years old at the time of these events and had previously applied for a job with Wom-ack. This was the first time he did any work for Womack. After talking to plaintiff he went to Womack’s place and discovered that the car had thrown a rod. The car was moved to his home and when the replacement engine arrived he installed it. The replacement engine had apparently burned up and he replaced the cylinder heads with the ones from the first engine, but because of the corrosion some additional work had to be done on the heads in order to make the engine operative. However, he gave up trying to repair the engine when he discovered that there were also problems with the engine block and the water jacket on the automobile.

The trial court awarded plaintiff a judgment rescinding the sale, ordering her to return the automobile to defendant and defendant to return the purchase price of $707.50. From this judgment defendant has appealed, specifying the following errors: 1) there was no proof that a defect existed at the time of the sale; 2) plaintiff was given only a limited warranty on the engine block; 3) the cause of plaintiff’s problem was not defendant’s failure to perform under the limited warranty but that the work was not completed by plaintiff’s mechanic in the installation of the «second engine; and 4) there was no tender of the second engine for repair or replacement.

Defendant’s position on appeal is somewhat inconsistent with the position it took in the trial court when it relied on the warranty provisions of the bill of sale and denied any warranty with respect to the engine. In order for the waiver of a buyer’s warranty against redhibitory defects to be effective it must be clear and unambiguous. LSA-C.C. Art. 2474. Furthermore, any waiver clause must be brought to the purchaser’s attention or explained to him. Prince v. Paretti Pontiac Company, Inc., 281 So.2d 112 (La.1973). Although Womack testified that he brought this to plaintiff’s attention, she testified unequivocally that Womack was supposed to guarantee the whole car. Inherent in the judgment appealed from is the court’s resolution of this conflict in favor of plaintiff.

Apparently recognizing that we accept a trial judge’s credibility call defendant now takes the position that both parties acknowledged that there was a “50-50 warranty” on the engine when they agreed to pay for the installation. Defendant would therefore regard the original purchase of the automobile as a closed matter and limit the issue on appeal to whether plaintiff is entitled to any recovery based on the failure of the second engine to run. Near the end of the trial the judge observed that “a lot of hoopla” had been raised about the second engine but this was not the issue in the case. We agree with that observation.

When plaintiff bought this automobile she was entitled to the warranty against redhibitory vices provided by C.C. Art. 2520. In order for her to be entitled to a recision of the sale it was her burden to prove that the automobile was defective at the time the sale was made. She was not entitled to the presumption established by Art. 2530 in cases where the defect manifests itself within three days after the sale-because the only defects which did show up at first were minor ones unrelated to the broken piston rod. Plaintiff produced no expert witness to establish that the car must have been defective at the time of the sale considering that the rod broke only two weeks thereafter. On the other hand, plaintiff established that she did not abuse the automobile in any way and was apparently mindful of the need to maintain it since shortly after her purchase she changed the oil in the engine. She was driving along the highway at a reasonable rate of speed when the engine had thrown a rod. It seems reasonable to infer from these circumstances that a defect was present in the automobile on the date of the sale. That such an inference can be drawn in the absence of some other explanation for the defects is not inconsistent with Art. 2530. Perrin v. Read Imports, Inc., 359 So.2d 738 (La.App. 4th Cir. 1978). In an effort to prevent such an inference from being drawn, defendant offered and had plaintiff’s attorney accept a stipulation that an expert witness if called by him to testify would say:

“. . . That a rod functions until it blows and it’s not affected by other parts of the engine wearing and it’s not something — it’s not defective until it blows.

It was further stipulated that the quoted statement was general and not specifically related to the automobile in question. We are not persuaded that the stipulated testimony has the effect defendant advocates. Perhaps a piston rod could suddenly become defective on an automobile, but when this piston rod broke on this six-year old, 63,000 mile-used automobile two weeks after the automobile was purchased it seems probable that this was not a defect which just happened to develop by coincidence, after the sale was made, but more probably existed two weeks before. Defendant’s stipulation does not dispel this conclusion.

Defendant’s cooperation with plaintiff in getting a replacement engine and the subsequent work done by Jouty did not alter defendant’s basic obligation to plaintiff. It was in the nature of an offer by plaintiff to defendant to repair the defective vehicle and an attempt by defendant to do so. Prom Jouty’s testimony it appears that the automobile required more than a new engine, including a replacement block as well as replacement parts for the engine’s cooling system. Whether these were defective before the engine threw a rod or were the result of that occurrence seems irrelevant to the plaintiff’s right to redhibition.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.


text:
    SOUTHERN STATES EQUIPMENT CO., INC. v. JACK LEGETT COMPANY, INC.
    No. 10601.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 18, 1980.
    Writ Refused March 21, 1980.

      Charles A. Kronlage, Jr., Kronlage, Ditt-mann & Caswell, New Orleans, for plaintiff-appellant.
    Robert E. Winn, Shirley N. Kopsa, Sessions, Fishman, Rosenson, Snellings & Bois-fontaine, New Orleans, for defendant-ap-pellee.
    Before GARRISON, CHEHARDY and STOULIG, JJ.
   STOULIG, Judge.

Plaintiff, Southern States Equipment Co., Inc., (Southern) has appealed from an adverse judgment dismissing its suit to recover the value of an air compressor which was stolen while under lease to and in the possession of defendant, Jack Legett Company Inc., (Legett).

The undisputed facts are the defendant, at various times during the three years preceding the theft leased from the plaintiff movable property which it used in its business of installing street lights and traffic signal lights. Approximately 43 separate rental transactions were involved and in each instance the procedure was practically the same. Legett through its general manager, William J. Krummel, or someone authorized by him would order the equipment by telephone and specify the date and job site for delivery.

Plaintiff would prepare in quadruplicate (2 copies for Lessee and 2 copies for its records) a “Rental Dray Receipt” itemizing the equipment — but not the rental price— which it required the party receiving the equipment at the job site to sign. Immediately above the signature line, the receipt contained the following printed provision:

Of the 43 dray receipts involved, five were signed by Krummel, thirty-one by R. Bridges (defendant’s construction foreman) and the remainder by other employees. The only printed matter on these dray receipts was the above stated liability provision. Krummel testified he never paid any particular attention to the contents of the dray receipt except to check the equipment listed on it. Admittedly plaintiff never personally directed Krummel’s attention to this provision of the dray receipt.

In February 1978, Legett leased an air compressor and related accessories from Southern which was delivered to the job site at Caffin and Galvez Streets in New Orleans. The dray receipt was signed on behalf of the defendant by its foreman, Roy Bridges. The equipment was used at this location for one week after which Southern was contacted and instructed to pick up the unit and hold it over the weekend and redeliver it the following Monday morning to a location in Gretna, La., which it did. The following Friday rather than again request Southern to follow the same procedure over the weekend, Legett elected to retain possession and secured the unit to a utility pole with chains and a padlock. Over the weekend the equipment was stolen resulting in this lawsuit to recover its value.

The trial court found that defendant was “generally aware of the language in the delivery receipt as a result of many transactions with plaintiff-lessor”; however, “that said awareness alone did not constitute acceptance or agreement to be bound thereby”. It further held that the foreman had no authority express or implied to bind the defendant and that Legett used reasonable care in securing the equipment and therefore was not negligent.

The record amply supports the trial court’s conclusion that defendant knew of the liability statement in the dray receipt. It was in bold print and the only printed matter on each of the forty-three receipts left with defendant. Once defendant learned of this provision by his continued silence and failure to protest or object to its inclusion in the dray receipt, it tacitly consented thereto and cannot now be heard to repudiate its legal effect. C.C. Art. 1817. Knowledge by the principal of the terms imposed coupled with the written acceptance of its employee authorized to act results in a binding obligation.

Unquestionably Bridges was authorized to sign the dray receipt acknowledging delivery of the rented equipment. Did this authorization extend to binding the defendant for loss of the equipment? The trial court felt it did not. We disagree.

On some thirty-one prior occasions Mr. Bridges signed dray receipts containing this identical provision and defendant honored the invoices submitted by plaintiff based upon these receipts. By so doing defendant ratified the actions of this employee and vested in him the apparent authority to act on its behalf in executing the dray receipts with their imposition of liability for loss of equipment. The pattern of conduct followed by the defendant in its series of rental transactions with plaintiff created an implied agency.

In Busby v. Walker, 84 So.2d 304 (La. App. 2d Cir. 1955), the court held:

However, an implied agency is also an actual agency. It is a fact which is to be proved by deductions or conclusions from other facts and circumstances. Such an agency is often established from the words and conduct of the parties and the circumstances of the particular case. It may be implied from prior habits or from a course of dealings of a similar nature between the parties where the agent has repeatedly been permitted to perform similar acts in the past. With respect to third persons, an agency may arise from acts and appearances which lead others to believe that such a relationship has been created, that is, by estoppel, and with respect to such third parties who deal with the agent, the agency may be apparent only and exist because of the estoppel of the principal or agent to deny the existence of such relationship, if the third party has relied on such appearance so that he would be prejudiced if the fact were shown to be otherwise.

See also Civil Code Article 3000. Under the circumstances of this case and the deductions to be drawn therefrom it must be concluded that Roy Bridges acted as the authorized agent in signing the dray receipts and thereby bound Legett to its terms.

Counsel for appellee contends that under Civil Code Article 2721 the defendant can only be held liable for the loss occasioned through its fault.

It is well settled that legal agreements have the force of law between the parties governing its subject matter and courts are duty bound to give legal effect to such agreements (C.C. Art. 1945). It is equally well established that parties are free to contract on all matters not expressly prohibited by statute or contrary to public order or good morals (C.C. Arts. 11 & 12).

While it is true that C.C. Art. 2721 does limit responsibility of a lessee to the loss or damage occasioned by its negligence, there is no statutory or other prohibition against renouncing the benefit of this article and against assuming unrestricted liability for such loss or damage. The printed declaration on the bottom of the dray receipt was an enlargement of the lessee’s responsibility.

Appellee maintains that the lessor cannot alter the lessee’s obligation by simply en-grafting a liability provision on its dray receipt and cites several cases in support of this contention. We find this position to be without merit.

The cases cited are not factually apposite. In each of them the document limiting liability was not signed by the recipient and he was not specifically apprised of the limitation. In the instant matter the printed stipulation making the lessee liable for loss was immediately above the signature of the defendant’s agent and under Ideal Loan of New Orleans, supra, the defendant is charged with the knowledge of and is bound by the provisions of the dray receipt. This conclusion is further buttressed by the recent Supreme Court case of Louisiana National Leasing Corporation v. ADF Service Inc. et al., La., 377 So.2d 92 (1979), which held a presumption exists that persons engaged in a business are aware of the contents of the documents they sign and the failure to carefully read the document which they signed is not sufficient cause to annul any of its provisions.

Applying Louisiana National Leasing Corporation rationale to the facts of this case, there is a legal presumption that the defendant was aware of the liability provisions of the dray receipt and its failure to carefully read the document cannot be urged to rebut the presumption of awareness and cause an annulment of the liability for loss statement.

On the question of the defendant’s negligence in securing the equipment to the utility pole, there is no evidence to rebut defendant’s testimony that such .action is in accord with the custom of the industry. Also there is no proof that defendant’s actions were not those of a reasonable prudent person under similar circumstances. Therefore we affirm the trial court’s finding that defendant was not guilty of negligence.

As regards the value of the equipment lost, it was stipulated that plaintiff’s expert appraiser, R. J. Sheffield, if present, would testify the value of a 1968 Le Roi air compressor in good condition is worth $3500.00. This appraisal coupled with the testimony of Barry Briski, Secretary-Treasurer of Southern, that the cost of a new compressor is about $8000.00 is sufficient to establish the value of the lease property at $3500.00 particularly since no contradictory evidence was submitted by defendant.

For these reasons we conclude the Rental Dray Receipt did form part of the contract of lease between the parties and plaintiff is entitled to recover the value of the leased object which was lost while in the possession and control of the defendant. Accordingly;

The judgment of the trial court is reversed and IT IS ORDERED that there be judgment in favor of plaintiff Southern Equipment Co., Inc., and against the defendant, Jack Legett Contpany, Inc., in the sum of Thirty-Five Hundred and No/100 ($3500.00) Dollars together with legal interest from the date of judicial demand until paid and for all costs of these proceedings.

Reversed and Rendered.

      . Ideal Loan of New Orleans, Inc. v. Johnson, 218 So.2d 634 (La.App. 4th Cir. 1969).

      . Guillot v. Kaplan Farmers Co-Op Inc., 352 So.2d 402 (La.App. 3rd Cir. 1977), disclaimer of liability not signed by depositor; Phillips v. Cohen, 183 So.2d 473 (La.App. 1st Cir. 1966) and Roppolo v. Pick, 4 So.2d 839 (Orl.La.App.1941), rent receipts not signed by lessees; Lawes v. New Orleans Transfer Co., 11 La.App. 170, 123 So. 144 (Orl.1929), baggage ticket not signed by depositor; Marine Ins. Co. v. Rehm, 177 So. 79 (Orl.La.App.1937), parking ticket unsigned; Colgin v. Security Storage, 208 La. 173, 23 So.2d 36 (1945), no signature on warehouse receipt. In Federal Insurance Co. v. C & W Transfer and Storage Co., Inc., 282 So.2d 563 (La.App. 4th Cir. 1973), court found depositor unaware of provision limiting liability; whereas in instant case the trial court found to contrary.


text:
    Helen Tappel, Wife of/and Burnett G. TAPPEL et al. v. Joycelyn L. VIDROS, Wife of/and Alton Vidros et al.
    No. 11303.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 8, 1980.
    Grayson H. Brown, New Orleans, for relator.
    James J. Donelon, Thomas G. Donelon, Metairie, for respondent.
    Before REDMANN, GULOTTA and CHEHARDY, JJ.
   MANDAMUS

We grant mandamus to order a trial judge to give written reasons for his ap-pealable judgment in compliance with La.C. C.P. 1917.

The trial judge refused applicant’s request on the authority of Fontenot v. State, Dept. Hwys., La.App. 3 Cir. 1974, 300 So.2d 864 (questioned, obiter, in LaCalle v. Ashy Enterprises, La.App. 3 Cir. 1978, 353 So.2d 439, writ refused La., 355 So.2d 266).

Whether right or wrong, Fontenot and its descendants (Richard v. Richard, La.App. 1 Cir. 1978, 359 So.2d 696; Charles Ragusa & Son v. Community State Bank, La.App. 1 Cir. 1978, 360 So.2d 231) may be distinguishable in that they involved appeals already lodged while here no appeal has yet been taken. One may argue that an order refusing to give written reasons is neither appealable in the first place nor a matter reviewable under an appeal from the final judgment itself as to which written reasons were refused. One may also note that the decision of whether or not to appeal has already been made when an appeal is lodged, and therefore the trial judge’s reasons could no longer serve the purpose of assisting a litigant in making that decision. (On the other hand, written reasons might yet serve the invaluable purpose of letting the court of appeal know whether the judgment is based on a resolution of a factual dispute or of a legal dispute, and perhaps nothing other than failure to take a timely appeal should extinguish a litigant’s right to written reasons.)

The only rationalization for those cases’ departure from C.C.P. 1917’s command that the court “shall” comply with a request for written reasons is that of Ragusa, at 360 So.2d 233, noting only that “the article [1917] does not provide the time limit within which such a request must be made” and impliedly suggesting that some time limit must be imposed. We disagree with that rationalization.

One must accept that reasons are not demandable forever, that there must come a time when a trial judge cannot be required to explain a judgment rendered in the past. But the courts have neither need nor justification for fixing a time limit because article 1917 contains its own time limit within its description of the cases in which reasons may be requested:

In all appealable contested cases, other than those tried by a jury, the court when requested to do so by a party shall give in writing its findings of fact and reasons for judgment.

It is only in “appealable” cases that reasons may be requested, and cases do not remain appealable forever. Art. 1917 allows a request for reasons as long as the time for appeal has not passed, but once the time for appeal has passed and the judgment can no longer be reviewed by an appellate court, art. 1917 no longer obliges the trial judge to give reasons because the case is no longer appealable. Thus a court does not have the authority to deny reasons in an appealable case on the theory that someone must supply a time limit that the Code does not supply; the Code does supply a limit. It is therefore

ORDERED that the Honorable Melvin J. Duran, Judge, Division “I”, Civil District Court for the Parish of Orleans, give in writing his findings of fact and reasons for judgment in compliance with appellant’s timely request.