author: LANIER, Judge.

text:
    James W. DANEY v. ARGONAUT INSURANCE COMPANY.
    No. 15067.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.

      Jeff C. Calmes, Maurice J. Wilson, Jr., Baton Rouge, for plaintiff-appellant, James W. Daney.
    R. Loren Kleinpeter, Baton Rouge, for defendant-appellee, Argonaut Ins. Co.

      Before COVINGTON, LEAR and LANIER, JJ.
   LANIER, Judge.

This is a suit for workmen’s compensation benefits and statutory penalties. The trial judge rendered judgment from the bench dismissing the petition at plaintiff’s costs because there was “... no testimony to the effect that any occurrence took place in the course and scope of his employment that resulted immediately in an injury that’s compensable under the laws of the State of Louisiana.” This devolutive appeal followed.

I. FACTS

In August of 1978, the plaintiff-appellant, James W. Daney, began working as an iron-worker for Star Steel Erectors, Inc. (hereinafter referred to as Star). At all times pertinent to these proceedings, the Argonaut Insurance Company (hereinafter referred to as Argonaut) was the workmen’s compensation insurer of Star. In March of 1979, Daney testified that he was experiencing lower back pain of such a degree that he felt he could no longer continue working with Star. He informed his boss about his back problems and was subsequently “laid off” by Star. He collected unemployment compensation benefits from March until August of 1979.

Daney testified that between March and August of 1979, the only treatment he received for his back problem was from a chiropractor whom he saw briefly. In August of 1979, Daney went to Toledo, Ohio, where his family resides. He entered the Toledo Hospital for treatment on August 19, 1979, and remained until September 1, 1979.

The records of the Toledo Hospital show that on August 19, 1979, Daney’s back was X-rayed. Doctor J.R. Yoder determined that the X-rays were negative for the lumbar spine. On August 22,1979, Dr. Richard Shara interviewed and examined Daney. Daney gave him a history of low back pain for the previous two years. Daney indicated that the pain became progressively worse on his left side and into his left leg during the previous six months. Daney could not relate this problem to a specific injury or accident, but advised Dr. Shara that he fell at one time on his sacral area when he was walking down a ravine. Dr. Shara found a positive straight leg raising reaction on the left which indicated “an L5 radiculopathy”, but that this diagnosis was tentative because Daney otherwise had normal reflexes.

On August 24, 1979, Dr. L.M. Heinz performed a lumbar myelogram on Daney and determined that he had an “extradural defect L4-5 on the left anterolaterally” and that these findings were “compatible with herniated nucleus pulposus.” On August 24, 1979, Daney was also examined by Dr. A.W. Emch and gave a history of falling and hitting his left hip approximately one year previously. Dr. Emch found a positive straight leg raising test with some weakness of dorsiflexion on the right great toe. Dr. Emch felt that further information was necessary before a final recommendation could be made.

On August 27,1979, Daney was examined by Dr. R.J. Gosling and gave a history of low back pain over the previous two years. Daney gave no history of any specific injury, but had a gradual onset of the problem. Dr. Gosling found “discomfort with deep pressure just below the left sacroiliac joint”, “no true muscle tenderness”, and that straight leg raising can be done through good range of motion bilaterally although there was “increased discomfort with straight leg raising on the left....” Dr. Gosling determined that Daney had “nerve root irritation” and felt that he would “respond to physical treatment with emphasis on therapeutic exercise.”

Daney was discharged from the Toledo Hospital on September 1, 1979. His final diagnosis on discharge given by Dr. R. Ha-zelrigg was “Lumbar disc disease L-4-5 left." Dr. Hazelrigg determined that it was “best not to approach patient surgically at this time because symptoms had significantly resolved secondary to conservative therapy.” Dr. Hazelrigg recommended physical therapy on an outpatient basis and that Daney be reevaluated in approximately six weeks. The records of the Toledo Hospital indicate that Daney received physical therapy from September 4, 1979, through September 20, 1979. After the physical therapy was completed, Daney was discharged by his doctors and advised that he could return to his regular work.

Daney returned to Louisiana and in the beginning of October of 1979, returned to work with Star. On October 12, 1979, Da-ney was working on a wharf for a grain elevator in Myrtle Grove, Louisiana. He testified that he and several other workers were shoving a 30 foot steel rod inside a U-shaped concrete structure when he twisted his back and felt low back and leg pain. Daney testified that he then stopped working and loafed until the end of the shift. Daney testified that either that evening or the next morning he called his boss and advised him that he had hurt his back on the job.

Daney was examined by Dr. John A. Thomas on October 16, 1979. He gave a history of developing severe low back pain while doing some heavy lifting and pulling of steel. Daney advised Dr. Thomas that the pain continued in his lower back area with radiation into his left leg which cramped his calf muscles. Dr. Thomas’ examination revealed “a man who is obviously in moderate distress from lower back pain with definite paralumbar muscle spasm on both forward and lateral bending and restricted secondary to muscle spasm and pain.” Dr. Thomas determined that Daney was “suffering from a lumbar disc disease.” Dr. Thomas recommended bed rest with medication for pain and muscle spasm and asked Daney to return for reexamination in two weeks. Dr. Thomas was “hopeful that his symptoms will fully resolve and he may return to a normal work level.” Daney received five physical therapy treatments from the Baton Rouge Physical Therapy and Rehabilitation Center between October 30, 1979, and November 6, 1979. During those treatments, he “was limited in forward flexion which also caused the radicu-lar pain down the leg.”

On November 16, 1979, Daney was referred to Dr. John R. Clifford. Daney gave Dr. Clifford a history of experiencing pain in his low back and left leg while lifting a piece of steel on October 12, 1979. Daney gave no past history of serious illness, injuries, or operations. Dr. Clifford’s examination revealed mild to moderate bilateral paraspinous muscle spasm, he found that flexion was painful past 60 degrees, and that the straight leg raising test was positive on the left. Dr. Clifford was of the opinion that Daney’s “complaints are very likely on the basis of a ruptured lumbar disc.” Dr. Clifford recommended a period of inpatient traction and physical therapy and a period of convalescence of approximately two to three weeks after those procedures.

Daney was admitted to Our Lady of the Lake Medical Center in Baton Rouge, Louisiana, on November 25, 1979, and received traction and physical therapy until his discharge on December 1, 1979. Dr. Clifford gave an admit diagnosis for Daney of “Lumbar Disc Herniation” and a discharge diagnosis of “Lumbar Disc Rupture.” Dr. Clifford determined that Daney showed significant improvement in his symptoms from this treatment, but advised Argonaut that he “is still considered disabled and unable to work at this time.”

Dr. Clifford saw Daney on December 7, 1979. He observed that “his complaints appear to be very slowly resolving”, and that Daney had “very minimal paraspinous muscle spasm ...” and a “good range of motion.” Dr. Clifford again saw Daney on December 14, 1979. He observed that his “complaints are very slowly subsiding” and “advised him to remain on diminished activity but increasing the amount of bending, stooping and squatting he does over the next month. . .. ” Dr. Clifford again saw Daney on January 14, 1980. He observed that Daney’s “complaints have remained essentially unchanged.. .. ” Dr. Clifford at that time felt that “we should proceed with the myelogram to determine what exactly is going on here. I discussed this with Mr. Daney and arrangements are being made for his admission to the hospital in the very near future.”

Daney was again seen by Dr. Clifford on February 4, 1980, and his complaints were essentially the same. At that time, an EMG was performed by Dr. Levert and those findings were “compatible with, but not diagnostic of, left S-I radiculopathy.” Dr. Clifford reported to Argonaut that he was encouraging Daney “to accept hospitalization for performance of a myelogram ...” and that “[Arrangements are being made for his admission to the Baton Rouge General Hospital in the near future and we will keep you posted as to the findings on myelography.” In his report of January 28, 1981, Dr. Clifford indicated that Daney “did not keep any follow-up visits and was not seen again until the 28th of January, 1981,

On March 12, 1980, Daney was examined by Dr. Richard W. Levy. He gave a history of bending over pulling on iron bars and hurting his low back in March of 1979. Daney advised Dr. Levy that he stopped working at that time and returned to Toledo, Ohio, where he was hospitalized and a myelogram and an EMG were done. Daney advised Dr. Levy that after treatment in Toledo, he was advised that he could return to work and in October of 1979, he did so. Daney further advised Dr. Levy that he worked for about one week, whereupon on October 13, 1979, he reinjured his back and was referred to Drs. Thomas and Clifford. Daney denied at that time having had a prior back injury and gave complaints of pain in the low back going into the left leg. Dr. Levy examined Daney and found no paraspinal muscle spasm in the lumbar region, that he was able to bend forward to 85 degrees and that backwards bending and lateral bending were restricted in the extremes of motion. The straight leg raising test was carried to 85 degrees bilaterally, the thighs and calves were equal in circumference on both sides, and the muscle power, deep tendon reflexes and sensation were normal throughout both lower extremities. No pathological reflexes were found. Dr. Levy was of the opinion that this neurological examination revealed no objective mechanical low back signs other than a very slight limitation on forward bending. He found no evidence of spinal cord or nerve root injury or disease and determined that Daney did not have a neurological basis for his symptoms. Specifically, Dr. Levy found no evidence of a ruptured intervertebral disc in the lumbar region and felt that no further neurological diagnostic studies or neurosurgery was warranted or indicated.

The records of Argonaut indicate that Daney was paid workmen’s compensation benefits of $148 per week from October 21, 1979, through March 29, 1980 (24 weeks), totaling $3,552.00. Compensation benefit payments were terminated by Argonaut after receiving the report of Dr. Levy. During the period of November 7, 1979, through March 2, 1981, Argonaut paid medical bills on behalf of Daney totaling $1,886.20.

In the summer of 1980, Daney entered Louisiana State University with the help of Vocational Rehabilitation benefits. At the time of trial, he was working toward a general degree with a major in construction and was working parttime as an I.D. checker with Intramural Services at Louisiana State University. During the period between February 4, 1980 and the date of trial, July 13, 1981, the only medical treatment that Daney received for his back was two or three visits to the Student Health Service at Louisiana State University.

At the request of Argonaut, Daney was again examined by Dr. Clifford on January 28,1981. At that time, Dr. Clifford was of the opinion that Daney did not have a ruptured intervertebral disc of any significance because “if he had had one a year ago of a significant size or degree that would require surgical intervention, I feel that the pain would have continued to become worse to the point that he would have sought further medical assistance from a physician of my specialty within the last nine months.” Dr. Clifford was of the opinion that Daney sustained a contusion of the muscles of the lumbar spine and stretched ligaments. Dr. Clifford did not feel that Daney was disabled from working, although he indicated that “he may have difficulty doing heavy type of work in view of the fact that he has not done any of this type of work for over a period of fourteen to sixteen months.” He gave Daney a disability of 10 percent of the body as a whole, based on his subjective complaints, although there were no definitive physical findings. Dr. Clifford’s examination revealed no muscle spasm, a range of motion 95 percent of normal, a positive straight raising test on the left at about 90 degrees and a negative straight raising test on the right. Dr. Clifford found “no obvious motor weakness, no sensory deficit and the reflexes are equal and active.”

II. APPLICABLE LAW

In a workmen’s compensation action, the employee bears the burden of establishing by a preponderance of the evidence that he received a personal injury arising out of and in the course of his employment and that a causal relationship exists between his disability and the accident. Cadiere v. West Gibson Products Company, Inc., 364 So.2d 998 (La.1978); Parks v. Insurance Company of North America, 340 So.2d 276 (La.1976). In Parks v. Insurance Company of North America, supra, at pages 280 and 281 of the Southern Reporter, the terms “accident” and “injury” are defined as follows:

“The terms ‘accident’ and ‘injury’ for the purpose of the workmen’s compensation statute are defined in La.R.S. 23:1021 as follows:
(1) ‘Accident’ means an unexpected or unforeseen event happening suddenly or violently, with or without human fault and producing at the time objective symptoms of an injury.
(7) ‘Injury’ and ‘Personal Injuries’ includes only injuries by violence to the physical structure of the body and such disease and infections as naturally result therefrom. These terms shall in no case be construed to include any other form of disease or derangement, howsoever caused or contracted.
“We note at the outset that the courts of this state have consistently accorded the terms of the Workmen’s Compensation Act a liberal construction in order to effectuate its beneficient purpose of relieving workmen of the economic burden of work-connected injuries by diffusing the costs in channels of commerce. Danielsen v. Security Van Lines, Inc., 245 La. 450, 158 So.2d 609 (1963); Geist v. Martin, Decker Corp., 313 So.2d 1 (La.App. 1st Cir.1975). Louisiana is among the many jurisdictions that look to the employee to determine whether there was an unexpected and catastrophic effect upon him in deciding that an injury is accidental. Ferguson v. HDE, Inc., 270 So.2d 867 (La.1972). We have held that extraordinary physical stress and strain is not essential to the definition of disabling accident: when the performance of the usual and customary duties of a workman cause or contribute to a physicai breakdown, the statutory requirements for an accidental injury are present. Ferguson v. HDE, Inc., 270 So.2d 867 (La.1972); Bertrand v. Coal Operators Casualty Co., 253 La. 1115, 221 So.2d 816 (1968). More particularly, we have recognized that the fact that a condition may commonly be referred to as an illness or disease does not thereby preclude its classification as an accident. Jennings v. Louisiana Southern Life Insurance Co., 290 So.2d 811 (La.1974). In Jennings, we noted that among other conditions frequently termed as diseases, heart disease, stroke, heat stroke, herpes zoster (shingles), cancer and ‘bends’ have all been treated as compensable accidents within the contemplation of the Workmen’s Compensation Act....”
“... Our jurisprudence demonstrates that it is not necessary that an accident be caused by extraordinary activities of an employee or that said activities be the exclusive cause of an accidental injury. It is only necessary that the accidental injury be caused or precipitated by the usual and customary actions, exertion, or other factors directly connected with the employment. Roussel v. Colonial Sugars Co., 318 So.2d 37 (La.1975). It is immaterial that the disability could have been brought on by causes other than a work-related trauma, if, in fact, trauma on the job which meets the standards of accidental injury is a disabling factor. Bertrand v. Coal Operators Casualty Co., 253 La. 1115, 221 So.2d 816 (1969). We have recently held, moreover, that an accident which aggravates or accelerates a pre-ex-isting condition is compensable even where disability is not caused by a single or specific incident. Chism v. Kaiser Aluminum & Chemical Corp., 332 So.2d 784 (La.1976).”

III. THE “ACCIDENT” OF MARCH, 1979

The trial judge specifically ruled that Daney failed to prove that an “accident” or “injury” was sustained by him in March of 1979 that was causally related to his employment. This factual finding must be upheld on appellate review unless it is clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Yokeum v. ITT Henze Service, 396 So.2d 611 (La.App. 1st Cir.1981).

Daney could not relate his back problems in March of 1979 to his job as an ironworker in either his testimony at the trial or in the medical histories that he gave to the various doctors. The only traumatic incident he referred to was that when he slipped on a rock and fell while hiking in the Tunica Hills of West Feliciana Parish. This incident occurred prior to the time that he secured employment with Star. There is no medical evidence in the record to show that the back pain occurring in March of 1979 constituted an “accident” or was causally related to Daney’s work with Star. After carefully reviewing the entire record, we cannot say that the district court’s finding that appellant’s back problems in March of 1979 were not job related is clearly wrong.

IV. THE “ACCIDENT” OF OCTOBER, 1979

A. Accident

Daney’s version of the 1979 accident is uncontradicted in the record. In evaluating evidence, a trier of fact should accept as true the uncontradicted testimony of a witness, even though the witness is a party, at least in the absence of circumstances in the record casting suspicion on the reliability of this testimony. West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979); Jones v. Alexander, 399 So.2d 216 (La.App. 2nd Cir.1981). The medical evidence of record partially corroborates Daney’s version of the October, 1979, accident by showing that some type of event aggravated his back condition. When Da-ney was discharged by his doctors in Toledo, Ohio, he was advised that he could return to his regular work. When he was examined by Dr. Thomas on October 16, 1979, he was found to be “a man who is obviously in moderate distress from lower back pain with definite paralumbar muscle spasm on both forward and lateral bending and restricted secondary to muscle spasm and pain.” This medical condition was confirmed by Dr. Clifford. Argonaut commenced making compensation benefit .payments to Daney on November 7, 1979. Under all of these circumstances, it is our opinion that the trial court was clearly wrong in determining that there was “. .. no testimony to the effect that any occurrence took place in the course and scope of his employment that resulted immediately in an injury that’s compensable under the laws of the State of Louisiana.”

B. Disability

The claimant in a workmen’s compensation proceeding bears the burden of proving to a legal certainty and by a reasonable preponderance of the evidence the nature and extent of his disability. Elie v. St. Paul Fire & Marine Insurance Company, 408 So.2d 297 (La.App. 3rd Cir.1981); Hamilton v. Georgia Pacific Gorp., 344 So.2d 400 (La.App. 1st Cir.1977). The issue of whether or not he has carried this burden must be determined by examining the totality of the evidence, including both lay and medical testimony. Crawford v. Al Smith Plumbing & Heating Service, Inc., 352 So.2d 669 (La.1977); Tantillo v. Liberty Mutual Insurance Company, 315 So.2d 743 (La.1975). Disability is compensable only if it results from a work-related accident. Simpson v. S.S. Kresge Company, 389 So.2d 65 (La.1980).

The evidence of record shows that the accident of October, 1979, resulted in an injury which caused Daney to be temporarily totally disabled, and he was paid compensation benefits on that basis until March of 1980. From March of 1980 until the date of trial, Daney was neither temporarily nor permanently totally disabled, as contemplated by the Louisiana Workmen’s Compensation Law, because he was capable of a gainful' occupation for wages. La.R.S. 23:1221(1) and (2); Wilson v. Ebasco Services, Inc., 393 So.2d 1248 (La.1981); Smith v. State, Department of Highways, 370 So.2d 1295 (La.App. 3rd Cir.1979). The medical evidence of record shows that Da-ney is employable. Daney admitted that he was advised by Dr. Clifford to return to work. Daney has secured a parttime job earning wages with the Intramural Services at Louisiana State University. Daney is seeking a general degree with a major in construction and it is doubtful that he would take the time and expense to secure this skill if he were unable to do the work associated with it.

If an employee is unable to “perform the duties in which he was customarily engaged when injured or duties of the same or similar character, nature, or description ... ”, but is able to engage in gainful activity at some job for which he is fitted by education, training or experience, he is considered partially disabled. La.R.S. 23:1221(3); Wright v. Aetna Life and Casualty Company, 405 So.2d 1166 (La.App. 1st Cir.1981); Jacks v. Banister Pipelines America, 396 So.2d 604 (La.App. 1st Cir. 1981). Daney testified that he is unable to do heavy manual labor, however, the record does not reflect that he has attempted heavy manual labor since the accident of October, 1979. Daney has introduced no lay or medical testimony to support his position. The medical evidence of Drs. Clifford and Levy indicates that there are no significant objective findings showing that Daney is suffering from a neurological disability and his complaints are subjective in nature. Dr. Clifford was of the opinion that Daney could return to his usual work, although he would experience difficulty due to the substantial time lapse since he last did that type of work. Under all of these circumstances, it is our opinion that Daney has failed to prove by a preponderance of the evidence that he is partially disabled.

Where the usefulness of a physical function of an employee is seriously permanently impaired, the court may allow such compensation as is reasonable, not to exceed sixty-six and two-thirds per centum of wages during one hundred weeks. La.R.S. 23:1221(4)(p). Dr. Clifford assigned Daney a total disability of 10 percent of the body as a whole, based on his subjective complaints. However, there is no evidence in the record to show what portion, if any, of this assigned disability is attributable to the accident of October, 1979, or to Daney’s back condition as it existed prior to that date. There is no evidence in the record to show what were Daney’s wages in October of 1979. Since Daney has not satisfactorily demonstrated a causal relationship between this disability and the accident of October, 1979, nor proven the wages upon which compensation is calculated, he cannot recover benefits on this basis.

V. CONCLUSION

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

AFFIRMED.

      . Dr. Clifford in his deposition testified that Daney did not advise him about the myelogram performed at the Toledo Hospital. Daney testified at the trial that he did.

      . Daney testified at the trial that he “... was never set to have a myelogram.”

      . Daney testified at the trial that he told Dr. Levy what happened in October of 1979 and did not relate a specific incident in March of 1979.

      . At the trial, Daney did not call his fellow workers or his boss to corroborate his story, nor did Argonaut call these individuals to contradict it.


source: Caselaw Access Project

author: CARTER, Judge:

license: Public Domain

text:
    Ryan J. GISCLAIR, d/b/a Ryan’s Trucking Company v. CAJUN TRUCKING, INC.
    No. 15073.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.
    Carlton J. Cheramie, of Diaz & Cheramie, Golden Meadow, for plaintiff Ryan Gisclair d/b/a Ryan’s Trucking Co.
    Robert Morris, of Henderson, Hanemann & Morris, Houma, for defendant Cajun Trucking Co.
    Before LOTTINGER, COLE and CARTER, JJ.
   CARTER, Judge:

This is an appeal from a judgment rendered by the trial court in favor of the defendant, Cajun Trucking and against the plaintiff, Ryan J. Gisclair dismissing plaintiff’s petition for redhibition and/or reduction of purchase price. Appellant assigned as error the failure of the trial court to either rescind the sale or reduce the purchase price on a 1972 dump truck. We affirm.

On December 10, 1979, appellant purchased from Cajun Trucking a 1972 Chevrolet dump truck for $8,000.00. Appellant had worked occasionally as a truck driver, was familiar with gasoline engines, and was a diesel mechanic. He had observed the truck and was impressed with its working ability. Prior to purchasing the truck, appellant personally inspected it, questioned its drivers as to its ability to do the job, and accompanied a driver on one load to observe its condition and operation. Being satisfied with the truck’s overall condition and ability, and having been told of the recent clutch repair, appellant decided to purchase the truck.

The truck, prior to and after its purchase by appellant, was working on the construction of a salt water reservoir for the Louisiana Offshore Oil Port, Inc. (LOOP) project in the marsh near Galliano, Louisiana. The working conditions at this project were described as being very hard on trucks because of the harsh environment, and the road and terrain that the trucks had to traverse was extremely muddy and rutted.

Mr. Leonard, President of Cajun Trucking, Inc., testified that frequent repairs are an every day occurrence in the trucking business and especially when working on a project such as LOOP. He and his drivers testified as to various repairs performed on this truck during the approximate five month period that it was working on the LOOP project prior to being purchased by appellant. The solenoid and starter were changed at least once; the pressure plates, disc and freeze plugs were changed; the radiator and fan were replaced; and a universal joint broke and had to be changed. All of these repairs, excluding labor, to-talled $1,200.00, and such amount was not regarded as an unusual amount of repair considering the age and work responsibility of the truck.

Within a few days after the sale, appellant began to experience problems with the truck. As a result of these problems, he lost 74 hours of work, spent $388.00 on parts and labor, and ultimately lost the job on the LOOP project. Within a month after the sale, appellant experienced the following problems: the clutch lever breaking; the solenoid was replaced four times and the starter once; the idle bearing breaking and flying into the radiator breaking it; the low or “grandma” gear being inoperable; the distributor gear sheared; and, alternator and carburator problems.

Appellant contends that these are non-apparent defects of which appellee knew or should have known, and existed at the time of the sale rendering the truck totally useless for its intended purpose.

Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold. La.C.C. art. 2520. To prevail in an action for redhibition, the purchaser must establish that the thing sold is absolutely useless for its intended purpose or that its use is so inconvenient that it must be supposed that the purchaser would not have made the purchase had he known of the defect. He must also prove that the defects existed at the time of the purchase, but were neither known nor apparent to him, and that seller could not or would not correct the defects when given the opportunity to do so. Associates Financial Services Co. v. Ryan, 382 So.2d 215 (La.App. 3rd Cir.1980); Purvis v. Statewide Trailer Sales, Inc., 339 So.2d 403 (La.App. 1st Cir.1976).

The warranty created against redhi-bitory defects applies to the sale of used equipment, but it is not as extensive as in sales of new equipment. Heilman v. Comeaux, 353 So.2d 407 (La.App. 4th Cir.1977). What is required, is that the equipment must operate reasonably well for a reasonable period of time. Dunn v. Paura-tore, 387 So.2d 1227 (La.App. 1st Cir.1980); Hob’s Refrigeration & Air Conditioning, Inc. v. Poche, 304 So.2d 326, 327 (La.1974); Richardson v. French, 253 So.2d 602 (La.App.2d Cir.1971). Therefore, obviously the sale of an old truck does not carry the same warranty as does the sale of a new truck. Inherent in the sale of an old truck is the knowledge that the machinery and parts are worn and subject to breakdown and that the vehicle will require substantial mechanical work from time to time to keep it in running condition.

The warranty that applies to the sale of used equipment must also be qualified by the conditions under which the equipment is used. Here, the appellant knew the truck was purchased for a very difficult job even for a new truck. Not only had appellant been a driver at the LOOP project prior to this purchase, he was aware of the difficult driving conditions which these trucks had to endure and had on occasion seen this particular truck stalled with some type of mechanical problem prior to the purchase.

The trial judge determined as a matter of fact, that appellant failed to carry his burden of proof by establishing by a preponderance of the evidence that the problems which this 1972 truck was experiencing were redhibitory defects. The trial judge concluded that the type of defects experienced by the appellant in the instant case are such that one could reasonably conclude would occur to a vehicle of this advanced age, being used under strenuous and taxing circumstances. As the trial judge so aptly phrased it, these problems were part of the cost of doing business rather than redhibitory defects. The trial judge further determined as a matter of fact, that the appellant failed to prove that the defects were sufficient to justify a reduction in the purchase price. In view of the evidence of record, these determinations by the trial judge were not clearly wrong. Deason v. Mobil Oil Corp., 407 So.2d 486 (La.App. 1st Cir.1981); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

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

AFFIRMED.

      . This matter went to trial after an exception of prematurity had been filed and referred to the trial on the merits. Apparently, all parties thought that an answer had been filed and it was discovered after trial on the merits, that the defendant had not filed an answer. Plaintiff contends that under the provisions of Article 1004 of the Louisiana Code of Civil Procedure, all of the allegations of his petition were admitted by the defendant since no formal answer was filed. It is well settled that the right to object to the failure to file an answer is waived if the parties proceed to trial without objection. Evidence received without opposition effectively enlarges the pleadings, puts at issue all allegations of plaintiffs petition, and is properly received even if no formal answer has been filed. Nicosia v. Guillory, 322 So.2d 129 (La.1975); Ducote v. Ducote, 183 La. 886, 165 So. 133 (La.1935); Houston River Canal Co. v. Reid, 127 La. 630, 53 So. 887 (La.1910). Cf. Franks v. Mercer, 401 So.2d 470 (La.App. 2d Cir.1981).


author: LOTTINGER, Judge. COLE, J.,

text:
    Howard P. BROUSSARD v. CONTINENTAL CASUALTY COMPANY, et al.
    No. 15085.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.
    Writ Denied Dec. 10,1982.

      John L. Avant, Baton Rouge, for plaintiff-appellant, Howard P. Broussard.
    Gerald L. Walter, Jr., Baton Rouge, for defendants-appellees, Continental Cas. Co. and Edward E. Evans.
    Before LOTTINGER, COLE and CARTER, JJ.
   LOTTINGER, Judge.

This is an action ex delicto for negligent misrepresentation. Plaintiff, Howard P. Broussard, sued Edward E. Evans, a professional civil engineer and registered land surveyor, and Evans’ insurer, Continental Casualty Company, alleging that he relied to his detriment on incorrect acreage allocations on a map certified by Evans. From judgment of the trial court in favor of defendants, plaintiff has appealed.

FACTS

Many factual matters at trial were stipulated to and are largely undisputed. Defendant, Edward E. Evans, in connection with probate proceedings for the succession of John Lawrence Mahoney, was engaged in 1963 to survey three tracts of land which were a part of the decedent’s estate, and to locate same on a map.

On November 23, 1963, Evans certified a map prepared by his office, showing the three tracts in sections 43 and 46, Township 4 South, Range 2 East, Greensburg Land District of Louisiana, East Baton Rouge Parish. The map indicated the location of the three tracts and that the tracts contained 295.74 acres, 265.08 acres, and 188.54 acres, respectively. The map was filed for record in the Mahoney succession proceedings and was referred to in a judgment of possession which put three particular legatees under the decedent’s last will and testament into possession of the 295.74 acre tract.

The 295.74 acre tract, a part of which is the focus of the present controversy, was bisected by La. Highway 409. The map prepared by Evans contained a legend stating that of the 295.74 acres in the tract, 124.37acres lay west of La. Highway 409, and 171.37 acres lay east of the highway.

In August of 1964, plaintiff entered into a purchase agreement with the Mahoney legatees to buy the western portion of the 295.74 acre tract. The purchase agreement indicated a sales price of $157.00 per acre, total price not to exceed $19,588.27, for the 124.37 acre western portion. Subsequently, in February of 1965, plaintiff bought the western tract from the Mahoney legatees for $19,588.27. The act of cash sale contained a description of the western tract which referred to the Evans map.

In April of 1965, plaintiff purchased, by act of sale with mortgage, the portion of 295.74 acre tract laying east of La. Highway 409. The act of sale included the information that the eastern tract contained 171.37 acres, as per the Evans map, and recited a sales price of $26,000.00.

Plaintiff subsequently sold the western tract and the northernmost ten acres of the eastern tract to John Canfield in 1971. In separate sales in 1974, plaintiff sold two other ten-acre tracts within the eastern tract. Finally, in 1979, plaintiff decided to give his daughter three acres from the property remaining in the eastern tract on which to live. Plaintiff hired a civil engineer and surveyor to parcel out the three acres. In so doing, the surveyor discovered an error in the original map prepared by Evans. It was discovered that of Maho-ney’s original 295.74 acre tract, in reality 147.07 acres lay west of the highway and only 148.67 acres lay east of the highway. (Evans’ map had allocated 124.37 acres to the western portion and 171.37 acres to the eastern portion.) The amount of error in the acreage allocations in the Evans map was stipulated at trial to be 22.7 acres. Thus, whereas plaintiff had thought he owned 141.47 acres in the eastern tract (after selling off three ten-acre tracts), he really had but 119.37 acres remaining. Evans’ map had erroneously allocated 22.7 acres to the eastern portion of the original tract which in actuality lay west of La. Highway 409. This action for negligent misrepresentation followed.

TRIAL COURT

In ruling for the defendants, the trial court held that plaintiff failed to show that Evans’ error fell below the professional standards of the surveyors and civil engineers practicing in the area, that the error was not so gross as to be actionable in the absence of showing what professional standards prevailed in the community, that the erroneous acreage allocations for the eastern and western portions of the 295.74 acre tract was extraneous information not included within the certification on the map, and that plaintiff could not recover because he purchased the eastern portion for a lump sum rather than by the acre.

SPECIFICATIONS OF ERROR

Plaintiff-appellant contends the trial court erred:

1. in considering the appellant's case as one based on the professional malpractice of the appellee as opposed to one based on the recognized tort of negligent or tortious misrepresentation; and
2. in applying that body of law governing the relationships and liabilities between vendors and vendees in sales per aversion-em in determining the liability vel non of appellee to appellant.

SPECIFICATION OF ERROR NO. 2

Basically, plaintiff urges that the trial court erred in holding he could not recover because he paid a lump sum for the eastern tract containing 22.7 acres less than the acreage allocation stated on Evans map. Plaintiff contends that this holding of the trial court is drawn from the Louisiana Civil Code article dealing with sales per aversionem, and that this article governs only as between parties to a sale. Inasmuch as the defendant Evans was not a vendor of the eastern tract, plaintiff argues that the sale per aversionem article is inapplicable to his damage claim.

La.Civ.Code art. 2495 governs sales where the property is designated by the adjoining tenements and sold from boundary to boundary, as is the case with plaintiff’s purchase of the eastern tract. In such situations, no diminution of price is allowed on account of disagreement in measure. If an object is specifically designated along with its measure and is paid for by a lump sum, La.Civ.Code art. 2494 allows no diminution in price unless the real measure is short of that expressed in the contract by one-twentieth or more. Under both articles, the rationale is similar: by designating fixed boundaries to property or by paying a lump sum for a designated object, the parties have considered the object itself more important than its actual measure. Although the cited codal provisions are not strictly applicable to a purchaser’s claim for damages caused by the negligence of a surveyor, they illustrate a difficulty in proving that Evans’ erroneous acreage allocation caused plaintiff damages.

It is axiomatic that in a tort action the burden of proving damages is on the plaintiff. Mr. Broussard contends that had Evans not misstated the acreage allocations, he would own and possess 22.7 acres which he does not now own. We find fallacy in this argument. Even had Evans not erred in the acreage allocations, plaintiff would not have obtained a greater number of acres in the eastern tract. The number of acres in the eastern tract was fixed and constant, regardless of errors in the map’s acreage allocations. The 22.7 acres erroneously allocated to the eastern tract was never a part thereof. The act of sale outlined the surveyed boundaries and also stated the amount of acreage. Plaintiff purchased all of the land within the described boundaries and no more. This is a fact which is unaffected by Evans’ error. The misstated acreage allocation merely led plaintiff to believe he was the owner of an additional 22.7 acres, but did not truly divest plaintiff of such ownership, since plaintiff could not have owned what was not there. Thus, the only specific damages which plaintiff can prove is that Evans’ error caused him to pay too high a price for the eastern tract.

“There can be neither increase nor diminution of price on account of disagreement in measure, when the object is designated by the adjoining tenements, and sold from boundary to boundary.”

Plaintiff testified in deposition that he offered the Mahoney legatees $175.00 per acre for the eastern tract, but this figure multiplied by the 171.37 acres supposedly in the tract yields a purchase price of $29,989.75, rather than the $26,000.00 actually paid. No purchase agreement showing a contemplated price per acre was offered into evidence, as was the situation with the western tract. We therefore agree with the trial court that the eastern tract was. bought on a lump sum basis.

Since the price for the eastern tract was not paid on a per acre basis, we cannot say with certainty that the lump sum paid would have been any smaller had plaintiff known that the tract contained 22.7 acres less than the allocation stated on Evans’ map. It would be sheer and utter speculation for us to attempt to formulate an award of damages for plaintiff’s supposed overpayment where the purchase of the eastern tract was not made on a per acre basis. The lump sum purchase price distinguishes the instant ease from Jenkins v. J.J. Krebs & Sons, Inc., 322 So.2d 426 (La.App. 4th Cir.1975), writ den. 325 So.2d 611 (La.1976), relied on by plaintiffs. Plaintiff conceivably could have called experts in real estate appraisal to testify what effect the lack of 22.7 acres would have had on the purchase price had same been known, but this method of proof was not utilized. Thus, plaintiff failed to prove that Evans’ error in acreage allotments caused him to pay too much for the eastern tract.

Plaintiff argues in brief that he was also damaged when he sold the western tract to John Canfield, since he sold 22.7 acres more than were paid for. However, the western tract is not at issue in this suit. Additionally, we note that when plaintiff bought the western tract (with the price determined on a per acre basis), he too received 22.7 acres for which he was not required to pay.

Inasmuch as plaintiff has failed to prove he sustained any damages as the result of relying on the erroneous acreage allocation on the map certified by defendant Evans, we find no liability on the part of the defendants. Discussion of plaintiff’s specification of error No. 1 is expressly preter-mitted.

Therefore, for the above and foregoing reasons, judgment of the trial court in favor of defendants-appellees is hereby affirmed. All costs are assessed to plaintiff-appellant, Howard P. Broussard.

AFFIRMED.

COLE, J.,

concurs in the result. I do not believe all the requisites of an action for negligent misrepresentation are satisfied and, for that reason, plaintiff cannot prevail.

      . These legatees already owned a one-half interest in the 295.74 acre tract. The judgment put each of the three legatees into possession of an undivided one-third interest in and to the decedent’s one-half interest in the tract.

      . La.Civ.Code art. 2495 reads:

      . La.Civ.Code art. 2494 reads:
      “In all other cases, whether the sale be of a certain and limited body, or of distinct and separate objects, whether it first set forth the measure, or the designation of the object, followed by its measure, the expression of the measure gives no room to any supplement of price, in favor of the seller, for the overplus of the measure; neither can the purchaser claim a diminution of the price on a deficiency of the measure, unless the real measure comes short of that expressed in the contract, by one-twentieth part, regard being had to the totality of the objects sold; provided there be no stipulation to the contrary.”

      .Based on the actual acreage of 148.67 acres in the eastern tract, at $175.00 per acre, the selling price would have been $26,017.00.

      . Plaintiffs petition makes no reference to the western tract. Defense counsel met all evidence as to the western tract with a timely general objection. Thus, the pleadings were not enlarged by the evidence, nor were they amended.


text:
    PROGRESSIVE BANK & TRUST COMPANY v. DIECO SPECIALTY COMPANY, INC., et al.
    No. 15087.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.

      Danny J. Lirette, Houma, for plaintiff-appellee.
    Stanwood R. Duval, Jr., Houma, for defendant and appellant.
    Before LOTTINGER, COLE and CARTER, JJ.
   CARTER, Judge:

This is an appeal by R.S. Electric & Armature Works, Inc. and Marine Electric Service, Inc., defendants, from a judgment and amended judgment of the district court whereby the writ of sequestration was maintained and the validity of the mortgage on certain described movable property was recognized in favor of the plaintiff, Progressive Bank & Trust Company. We affirm.

This action commenced as an action by the bank against Dieco Specialty Company, Inc., R.S. Electric & Armature Works, Inc., and Marine Electric Service, Inc. to enforce a chattel mortgage on the movable property, consisting of lathes and presses. The petition alleged that the aforementioned mortgaged chattels had been transferred by Dieco subsequent to the mortgage to R.S. Electric and Marine Electric by a dation en paiement. The plaintiff also sought a writ of sequestration to protect its rights. R.S. Electric and Marine Electric answered in the form of a general denial; and affirmatively asserted that the chattel mortgage was null and void insofar as those particular defendants were concerned, based on the allegation that the mortgage was not properly indexed, and that under the public records doctrine the mortgage was thus without effect on said defendants as third parties; and further answered that Dieco Specialty, Inc. did not own the movable property which was the subject of the chattel mortgage, and that a described lathe had been acquired at a sheriff’s sale. A default judgment was taken against Dieco, which filed no responsive pleadings.

After trial on the merits, the trial judge found that the chattel mortgage had been timely and properly filed and recorded in the office of the Clerk of Court of Terre-bonne Parish, although improperly indexed, prior to the dation en paiement to R.S. Electric and Marine Electric, and was, thus, effective against them, citing LSA-R.S. 9:5354 and the jurisprudence supporting the proposition that improper indexing had no effect on whether or not the mortgage was filed and recorded. The trial court then rendered the judgment complained of on this appeal.

The action arises out of the following set of facts: On April 14, 1977, the bank obtained the chattel mortgage on nine items of equipment of Dieco Specialty, Inc. to secure a $32,800.00 loan. On May 19, 1977, the mortgage was recorded in the office of the Clerk of Court. The mortgage was indexed improperly. On January 11, 1978, a mortgage certificate from the Clerk’s office in the names of Dieco, John Gray, Terrebonne Machine, and Kosco was issued to R.S. Electric. The certificate did not reflect the Dieco mortgage in favor of the bank, and an independent search of the mortgage records failed to discover the mortgage. On February 17,1978, by dation en paiement, the appellants acquired various equipment, including the equipment subject to the chattel mortgage. Thereafter, the bank brought an executory proceeding, which was dismissed for failure to present a corporate resolution as a link in the chain of authentic evidence. See Progressive Bank & Trust Company v. Dieco Specialty, Inc., 378 So.2d 139 (La.App. 1st Cir. 1979). The present action then followed.

On the question of the improper indexing as affecting the validity of the recording of the mortgage, we hold, as this Court previously held in Progressive Bank & Trust Company v. Dieco Specialty, Inc., supra at 141, the indices are not themselves part of the public records. Thus, an act which is actually recorded, but which could never be found from the indices because it is not indexed properly, is nevertheless effective against third persons. Agurs v. Belcher & Creswell, 111 La. 378, 35 So. 607 (1903); Central Lumber Co. v. Whittington, 12 La.App. 695, 127 So. 79 (La.App. 2nd Cir.1930); Redmann, the Louisiana Law of Recordation: Some Principles and Some Problems, 39 Tul.L.Rev. 491, 498 (1965).

In Swan v. Vogel, 31 La.Ann. 38, 40 (1879), the Court observed:

“The index is ordered by law to be kept for convenience, but it is not a part of the mortgage record. Certainly it does not take the place of the record in the book, and supersede it.”

A mortgage which is properly filed for recordation, and which is subsequently recorded in the mortgage records, is effective against third parties regardless of whether or not it is properly indexed by the Clerk’s office. See LSA-R.S. 9:5354, 5363. There is no merit in the contention of the appellant on this question.

The appellants also contend that the bank failed to prove that Dieco was the owner of the equipment which it had mortgaged. The basis for this contention is that the president of R.S. Electric, Robert So-bert, testified that at the time of his company’s acquisition of the equipment by the dation en paiement, the equipment was on the premises of Terrebonne Machine & Welding and was being utilized by that concern. The record contradicts this contention of appellants. The mortgage forming the basis of this lawsuit clearly warrants that Dieco is the owner in full ownership of said property. The testimony of Mr. Sobert does not establish that Terrebonne Machine, rather than Dieco, was the owner of the equipment. The trial judge had an opportunity to consider the evidence presented to him on the trial of this matter, and his decision indicates that he was of the opinion that the bank had fully established its claim, including that the mortgagor was the owner of the subject property. Our review of the record convinces us that there is a reasonable factual basis for the finding of the trial court, and further that the finding of the trial court is not clearly wrong or manifestly erroneous. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Accordingly, for the reasons assigned, we affirm the judgment of the district court at the appellants’ costs.

AFFIRMED.


author: COLE, Judge.

text:
    Helen HAYS v. CITY OF BATON ROUGE and Parish of East Baton Rouge.
    No. 15089.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.
    Writ Denied Dec. 10,1982.

      Leo J. Berggreen, Baton Rouge, for plaintiff-appellant Helen Hays.
    Stephen R. Wilson, Baton Rouge, for defendants-appellees City of Baton Rouge and Parish of East Baton Rouge.
    Before LOTTINGER, COLE and CARTER, JJ.
   COLE, Judge.

Plaintiff, Helen Hays, is the lessee of a building located at 3142 North Boulevard in Baton Rouge and desires to operate a residential home for mildly to moderately retarded adults. In May of 1981 she began renovating the building and negotiating with City-Parish officials concerning the required permits. When she attempted to obtain her occupancy license in September of the same year, she was informed she would not be able to operate the “special home” unless she obtained the signatures of 51% of the owners and occupants of all properties located within a 1,000 foot radius of the proposed facility. The requirement was mandated by a new amendment to section 2.201 of the City-Parish zoning ordinances which had been effective since August 26, 1981.

Ms. Hays filed suit against the City of Baton Rouge and the Parish of East Baton Rouge, seeking a declaratory judgment ruling the amendment to be invalid and also sought preliminary and permanent injunc-tive relief. A summary hearing was held as to the injunctive relief only and the court denied the preliminary injunction. Plaintiff then filed this devolutive appeal.

Plaintiff raises only one issue on appeal: whether or not the amendment to section 2.201 of the zoning ordinances is valid. Defendants filed a motion to dismiss the appeal (which was referred to the merits) urging the amendment’s validity was not an issue before this court because no ordinary proceedings had been conducted as to that issue. Defendants claimed the hearing was addressed to the injunction (rather than to the declaratory judgment) and as such the only issue before this court is whether or not plaintiff proved irreparable harm so as to be entitled to an injunction.

Although irreparable harm is the usual issue in an injunction proceeding, when the plaintiff is alleging the defendant is acting in violation of the law, there is no need to prove irreparable harm. Haughton Elevator Division v. State, Etc., 367 So.2d 1161 (La.1979); Bardwell v. Parish Council, 44 So.2d 107 (La.1949); Caffery ¶. Powell, 320 So.2d 223 (La.App. 3d Cir.1975); Whalen v. Brinkmann, 258 So.2d 145 (La.App. 1st Cir.1972).

In the present case plaintiff alleged defendant acted illegally in refusing to grant her an occupancy permit in that the refusal was based upon an invalid ordinance. Plaintiff contends the city ordinance is in direct conflict with La.R.S. 28:476. Therefore, there was no need to prove irreparable harm and the applicability of state law was the major issue at the injunction hearing and is an appropriate issue here. Defendants’ “motion to dismiss and or remand the appeal” is denied.

The “Group Home for Handicapped Persons Act” (La.R.S. 28:475 — 478) is a part of Louisiana’s comprehensive Mental Health Law, (La.R.S. 28:1 et seq.). Section 476 declares it is the state policy to allow handicapped persons to “... live in the least restrictive environment in their own community and in normal residential surroundings . ... ” Section 477(1) defines a community home as follows:

“‘Community Home’ means a facility certified, licensed, or monitored by the Department of Health and Human Resources to provide resident services and supervision to six or fewer handicapped persons. Such facility shall provide supervisory personnel in order to function as a single family unit but not to exceed two live-in persons.” (Emphasis added.)

The crucial provision of the act is § 478(A) which states in order to assure a uniform statewide implementation of policy the, “... community homes are permitting (sic) by right in all residential districts zones (sic) for multiple-family dwellings.” Appellant contends since the location of the proposed facility is zoned for multiple-family dwellings (A-3), the requirement of the 51% approval interferes with the facility being permitted “by right.”

We note it is not our purpose here to make a general declaration as to the validity of the ordinance. That is a matter to be decided on the merits after a full trial by ordinary proceedings. This is true even though the hearing on the summary proceedings to obtain the preliminary injunction may have touched upon or tentatively decided merit-issues. Smith v. West Virginia Oil & Gas Co., 373 So.2d 488 (La.1979); Haughton Elevator Division v. State, Inc., supra. Thus, we are limited to the narrower issue of whether or not the City-Parish ordinance, which requires approval of 51% of the residents for the establishment of this particular community home, is in violation of the state law. Considering the evidence in the record before us, we conclude it is not.

We reach this conclusion based upon a small but significant aspect of the state law. The state law guarantees group homes housing six or less residents are permitted by right in areas zoned for multiple-family dwellings. Ms. Hays testified at the hearing she had planned originally to house twelve residents but had reduced the number to seven. The state law does not require that group homes with more than six residents be permitted by right, therefore there is no conflict between the City-Parish ordinance and the state law, as they relate to this particular case.

Accordingly, we affirm the denial of the preliminary injunction. Our decision on the injunction is without prejudice to plaintiff’s right to proceed to trial on the main demand. By ordinary proceedings involving a full scope of evidence presented by opposing sides, the trial court will be able to make a general declaration as to the validity of the ordinance or as to any of its several provisions.

Costs are to be paid by appellant.

AFFIRMED.

      . Special homes are defined in Section 2.110 of the City-Parish Zoning Ordinances as follows:
      “Special Homes are those buildings other than institutions operated by a person or persons, society, agency corporation, institution or group licensed by the State wherein developmentally disabled persons may be housed, under the direct care of at least two responsible adult persons on a 24-hour basis to assure that a responsible adult is on premises at all times in case of emergency; and such buildings and premises shall meet all City-Parish Building Codes, Fire Codes and Zoning Ordinance requirements and State Fire Marshal requirements prior to the issuance of any State permits for occupancy and/or operation. Property may not be rezoned for this purpose.”

      .Prior to the amendment, special homes were allowed in areas zoned A-l, with approval of 51% of the residents, and in A-3 and in R, with no requirement of approval. The amendment deleted the references to special homes in A-3 and in R. The 51% approval language was re-enacted for zone A-l and certain fencing and parking requirements were added. The result of the amendment was to allow special homes in all zones (because anything allowed in A-l is also allowed in the less restrictive zones) so long as the 51% approval was obtained.

      . More specifically, she sought to have the defendants enjoined “from refusing petitioner authority to occupy said building at 3142 North Boulevard, upon compliance with section 2.203 of the City and Parish zoning ordinances. .. . ”

      . The trial court stated in its reasons for judgment the declaratory relief was not being considered because it was not available by means of a summary proceeding. See La.Code Civ.P. art. 2592.


author: WATKINS, Judge. SHORTESS, Judge,

text:
    Clide VESSEL v. BENNETT FORD, INC. and Sentry Insurance Company.
    No. 15091.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.

      Albert F. Richard, Plaquemine, for plaintiff-appellant.
    Paul Marks, Jr., Baton Rouge, for defendants-appellees.
    Before EDWARDS, WATKINS and SHORTESS, JJ.
   WATKINS, Judge.

This is an action for the alleged theft of plaintiff’s, Clide (Clyde) Vessel (Vessell)’s Ford pickup truck while in the custody of Bennett Ford, Inc. Also made defendant is Sentry Insurance Company, Bennett Ford’s public liability insurer.

We have thoroughly reviewed the record, including the transcript of testimony and exhibits, and find that the written reasons for judgment prepared by the trial court well set out the facts and applicable law. We therefore adopt the trial court’s reasons for judgment as our own, and quote from them in full:

“In his petition, plaintiff alleges that on September 20, 1979 he drove his 1977 Ford pick-up truck, Vehicle Serial No. F37sNY81140, to the automobile repair shop for Bennett Ford, Inc., where he had originally purchased the vehicle. Plaintiff further alleges that several weeks later, after inquiring about the vehicle, he was informed that his vehicle had been stolen.
Defendants allege they are totally free from fault and deny liability. In the alternative, they allege contributory negligence and assumption of the risk.
This matter came up for trial on the merits on June 22, 1981.
The testimony of both parties was to the effect that in the past the truck had been taken to the dealership for certain repairs. The last time it was taken to the dealership, the warranty had expired, but defendants had agreed to check the truck over without charge to determine what repairs needed to be done and after that, plaintiff could decide whether he wanted to pay to get it fixed at the dealership or elsewhere. Both parties also testified that in the past, each time the truck was picked up they had to go to the office to pick up the keys.
Plaintiff, Clyde Vessell, testified that he brought the vehicle to the dealership and at one time, had his brother, David, check on what the dealership had found wrong with the truck. He testified that he never authorized anyone, including David, to tell the dealership to leave it outside for someone to pick up. David Vessell testified that he saw the truck when he came to check on it, but never told the dealership to leave it out for someone to pick it up. Clyde Vessell testified that after David visited the dealership, he himself went to the dealership twice and talked to Michael Bennett, the Service Manager, but didn’t see the truck.
Defendants, on the other hand, allege that David told them to leave it out for someone to pick up. Michael Bennett, the Service Manager, testified that David told him to leave it out and that someone would pick it up. The truck was put out on the lot and locked up, with the keys put in the office, and was shown that it received the same treatment as all other cars either owned by or in the custody of Bennett Ford. When the truck was later found gone, the defendants were not surprised because they thought plaintiff had picked it up. Michael Bennett testified that it stayed outside for several weeks and that one day when he came back from lunch it was gone. At trial, defendants presented the only set of keys to the truck that they had possession of. There was a second set which was in the possession of plaintiffs, but which plaintiffs did not show at the trial on the merits.
The testimony of defendant’s witnesses was to the effect that Bennett Ford was located at the intersection of two major streets in St. Francisville, which streets were patrolled by the town police; that the car lots were not fenced in or privately guarded; that the lots were well lighted; and that from past experience they had had only one car stolen, from the inside of the dealership by an escaped convict. All testimony was to the effect that plaintiff’s truck received the same attention, care and safeguards, as other cars owned by or in the custody of Bennett Ford.
The applicable jurisprudence treats automobile dealers as compensated depo-sitaries. Leatherman v. Miller’s Mutual Fire Insurance Company of Texas, 297 So.2d 540 (3rd Cir., 1974); Zurich Insurance Company v. Daigle Pontiac-Buick, Inc., 292 So.2d 282 (1st Cir., 1974). Under the jurisprudence where the bailor or customer proves he made a deposit and that while in the custody of the bailee, the property is lost or cannot be returned, a prima facie case is established against the bailee, and it then becomes his duty to show that the loss is due to other causes consistent with due care on his part. To exculpate himself from liability, the bailee must show that it is free from fault or negligence and such showing must be sustained by a preponderance of the evidence. But the bailee is not the insurer of the bailor’s property and only owes the duty of a prudent administrator, taking as good care of bailor’s property as he would his own. Zesiger v. Dean, 247 So.2d 222 (4th Cir.1971); Sonnier Oldsmobile, Inc. v. Southeastern Fidelity Insurance Company, 377 So.2d 572 (3rd Cir. 1978) (sic); Johnson v. Allright New Orleans, Inc. 357 So.2d 1210 (4th Cir.1978); Verdin v. Quality Chevrolet Company, Inc. 255 So.2d 458 (1st Cir.1971); St. Paul Fire and Marine Insurance Company v. Zurich Insurance Company 250 So.2d 451 (4th Cir.1971); Leatherman v. Miller’s Mutual Fire Insurance Company of Texas, supra; and Zurich Insurance Company v. Daigle Pontiac-Buick, Inc., supra.
In Zurich Insurance Company v. Daigle Pontiac-Buick, Inc. supra, there was present somewhat the same factual situation as is present in this case. In that case, the Court of Appeal held that the dealer who left the automobile on a well lighted lot on a main thoroughfare which was regularly patrolled by police and who locked the automobile and placed the keys in a safe place exercised the same degree of care over the automobile as he exercised over his own automobiles, took all reasonable precautions, even though no night watchman was provided, and thus complied with the duty imposed upon a compensated depositary; and that the dealer was not required to be an insurer of the vehicle.
Much of the testimony of plaintiff was related to difficulty that he had experienced with the truck and the efforts of the defendant to remedy the difficulties. There were no apparent emotional overtones or animosities. The parties have known each other for a considerable time. It is also suggested that the defendant made corrections or repairs beyond the warranty obligations.
There was testimony, however, that is simply irreconcilable. There was testimony that taunts curious interest.
In direct contradiction is the substance of a conversation between Mike Bennett and David Vessel relative to leaving the truck on the lot for the owner to pick up. Mike Bennett testified under oath he was so instructed; David Vessel, brother of the plaintiff, testified under oath denying the instruction.
If accepted as true, the instruction may have become an intervening factor in the general bailor-bailee or depository relationship.
Also irreconcilable is the testimony of defendant witnesses that the tests were made on the truck, but no engine work was performed. A plaintiff witness related that he had seen the truck with the engine removed. Engine removal is not likely.
Those matters which raise questions about plaintiffs position are the fact of his placing insurance on the truck in December and the curious absence of the second set of keys. The defendant produced the set in his custody. The plaintiffs represent that within two weeks of the trial their set of keys had been removed, displaced, or otherwise not produced.
The brief of defendant clearly recites his legal position and raises the inconsistencies in plaintiff’s contentions in depositions and testimony.
The brief of the plaintiff relies on the legal obligation of the parties.
Applying the above jurisprudence to the facts in this case, the bailee, in this case Bennett Ford, Inc., has met its burden of showing it is free from fault or negligence by a preponderance of the evidence.
For reasons assigned, judgment will be signed for defendant, dismissing plaintiff’s claim at plaintiff’s cost.”

Accordingly, the judgment of the trial court is affirmed, at appellant’s cost.

AFFIRMED.

SHORTESS, Judge,

concurring.

I concur in the result. Plaintiff must establish every element of his case by a preponderance of the evidence. Jordan v. Travelers Ins. Co., 257 La. 995, 245 So.2d 151, 155 (1971). He failed to produce any evidence as to damages.


author: CARTER, Judge.

text:
    Rudolph SCHOEMANN, III v. TURNWOOD DEVELOPMENT CORP, et al. Rudolph Robert SCHOEMANN, III v. Charles B. MORSE, et al.
    Nos. 15092, 15093.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.

      Rudolph Schoemann, New Orleans, for Rudolph Schoemann, III, appellant.
    Howard Marks, New Orleans, for Sandra T. Rouse, Alvin Faucheux, d/b/a Turnwood Dev. Corp., appellee.
    W. Marvin Hall, Metairie, for Am. Mutual Liability Ins. Co. and Am. Mutual Ins. Co. of Boston, appellees.
    Henry L. Klein, New Orleans, for Gary J. Rouse, appellee.
    France Watts, III, Franklinton, for Charles T. Morse, appellee.
    Before LOTTINGER, COLE and CARTER, JJ.
   CARTER, Judge.

Plaintiff-appellant in these consolidated cases, Rudolph Schoemann, III, appeals the judgment of the trial court dismissing, on a motion for summary judgment, its action against defendant-appellees, American Mutual Liability Insurance Company and American Mutual Insurance Company of Boston.

Plaintiff-appellant was injured in an automobile accident on March 27, 1980, allegedly while in the course and scope of his employment. On March 26,1981, he filed a suit for workmen’s compensation benefits against his alleged employers, Alvin Fau-cheux, doing business as Turnwood Development Company, and Turnwood Development Corporation (hereinafter referred to as “Turnwood”) and against their alleged insurers, American Mutual Liability Insurance Company and American Mutual Insurance Company of Boston (hereinafter referred to as “insurers”). Also named as defendants were Sandra T. Rouse and Gary J. Rouse. On the same date, plaintiff filed a tort suit against Charles B. Morse, the driver of the other vehicle, Mr. and Mrs. Charles T. Morse and their automobile liability insurer, State Farm Mutual Automobile Insurance Company.

On June 11, 1981, the insurers in the workmen’s compensation suit moved for summary judgment, contending that the policy which American Mutual Liability Insurance Company had issued to Turnwood had expired prior to the accident in which plaintiff was injured. In support of their motion, the insurers filed an affidavit of John A. Durden, their District Underwriting Manager. A hearing on the motion was set for September 18, 1981. Neither plaintiff nor his attorney appeared at the hearing. The trial court then granted the insurers’ motion for summary judgment. Plaintiff subsequently moved for a new trial, which was denied. Plaintiff then timely appealed to this court seeking reversal of the summary judgment.

Appellant makes several assignments of error on appeal. However, the only issue posed by those assignments is whether or not the trial court erred in granting the motion for summary judgment in the absence of proof that notice of cancellation of the policy was mailed to Turnwood.

The only items of evidence in the record with regard to the motion for summary judgment are the affidavit of Mr. Durden, the endorsement pages of the workmen’s compensation policy issued by American Mutual Liability Insurance Company to Turnwood, and a copy of a notice of non-renewal addressed to Turnwood. In his affidavit, Durden states that a workmen’s compensation policy was issued to Turnwood for the policy period of January 27, 1979 to January 27, 1980. He further states that Turnwood failed to pay its renewal premium, resulting in the lapse of coverage. Durden also deposed that no policy of workmen’s compensation insurance had ever been written on behalf of Turnwood by American Mutual Insurance Company of Boston. Durden did not state that the notice of non-renewal- had actually been mailed to Turnwood.

The endorsement pages of the policy clearly show that its expiration date was January 27,1980. The copy of the notice of non-renewal states that the policy was not being renewed due to failure of Turnwood to pay the premium.

Appellant contends that the trial court erred in granting summary judgment in the absence of proof that notice of cancellation was mailed to Turnwood by defendants. Appellant argues that the mover has the burden of proving the necessary facts to entitle him to “judgment as a matter of law” and that appellees failed to do so in the instant case.

It is well established that the burden of proof with respect to a motion for summary judgment rests with the moving party and any doubt must be resolved against granting a motion. Blount v. Exxon Corp., 395 So.2d 355 (La.App. 1st Cir.1981). However, if the moving party comes forward with specific facts which, by themselves, would resolve all genuine issues of material fact and entitle him to judgment as a matter of law, then the burden shifts to the opposing party, who may not rest on his pleadings, but must “by affidavits or otherwise” show that there is a genuine issue for trial. La.Code of Civ.Proc. arts. 966-967; Delta Nat. Bank of Yazoo City v. Holder, 398 So.2d 1072 (La.1981); Sanders v. Hercules Sheet Metal, Inc., 385 So.2d 772 (La. 1980).

In the instant case, appellant relies on La.R.S. 22:636 in arguing that the insurers did not carry their burden of proof since they did not come forward with proof of mailing of the notice of cancellation. La. R.S. 22:636 provides in pertinent part as follows:

A. Cancellation by the insurer of any policy which by its terms is cancellable at the option of the insurer, or of any binder based on such policy, may be effected as to any interest only upon compliance with either or both of the following:
(1) Written notice of such cancellation must be actually delivered or mailed to the insured or to his representative in charge of the subject of the insurance not less than five days prior to the effective date of the cancellation.
(2) Like notice must also be so delivered or mailed to each mortgagee, pledgee, or other known person shown by the policy to have an interest in any loss which may occur thereunder.
B. The mailing of any such notice shall be effected by depositing it in a sealed envelope, directed to the addressee at his last address as known to the insurer or as shown by the insurer’s records, with proper prepaid postage affixed, in a letter depository of the United States Post Office. The insurer shall retain in its records any such item so mailed, together with its envelope, which was returned by the Post Office upon failure to find, or deliver the mailing to the addressee.
C. The affidavit of the individual making or supervising such a mailing, shall constitute prima facie evidence of such facts of the mailing as are therein affirmed.

Appellant’s argument, however, ignores a very important point, i.e., the policy in this case was not cancelled but expired by its own terms. See Arceneaux v. Broussard, 319 So.2d 846 (La.App. 1st Cir.1975); Gros v. Comeaux, 288 So.2d 98 (La.App. 4th Cir.1974). When a policy expires, rather than is cancelled, no notice of the lapse of the policy’s provisions is required. Arceneaux v. Broussard, supra; Gros v. Comeaux, supra.

In Arceneaux, supra, Judge Barnette writing for the court aptly stated:

“This is clearly not a situation which invokes the provisions of the statute relative to cancellation. Cancellation is, as the trial judge aptly defined, a ‘disruption’ or ‘termination’ of coverage and when initiated by the insurer requires that the notice prescribed by the statute be given. The insurer is under a duty of strict compliance in that situation. This is instead an expiration of the period for which the policy was written and the coverage contracted. The expiration was not because of a default or an act done by the insurer, but on the contrary the policy was allowed to expire by the insured after the insurer had timely notified the insured that it would expire on July 16, if not renewed by the payment of an additional premium. The insurer did not cancel.” (Emphasis omitted.)

In the instant case, the insurers were not under an obligation to mail Turn-wood notice of cancellation. Hence, Mr. Durden’s affidavit stating that no workmen’s compensation policy had ever been issued to Turnwood by American Mutual Insurance Company of Boston and that the policy issued by American Mutual Liability Insurance Company had lapsed prior to the accident are sufficient proof that no coverage was provided by the insurers at the time of the accident. Therefore, the trial court was correct in concluding that no genuine issue existed for trial and that the insurers were entitled to summary judgment. See Sanders v. Hercules Sheet Metal Inc., supra.

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

AFFIRMED.

      . While the record in the tort suit was sent up, there was no appeal filed therein. This appeal involves solely the granting of the summary judgment in the workmen’s compensation suit.


author: EDWARDS, Judge.

text:
    Wilfred M. MASON v. Raymond J. MAESTRI, Noel Maestri Carpets, Inc., and State Farm Fire and Casualty Company.
    No. 15094.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.
    Clyde A. Ramirez, New Orleans, for plaintiff, appellant.
    James Donovan, Metairie, for defendant, appellee American Ins. Co.
    Iddo Pittman, Hammond, for defendant, appellee Raymond Maestri, State Farm Fire & Cas. Co., Noel Maestri Carpets, Inc.

      Before EDWARDS, WATKINS and SHORTESS, JJ.
   EDWARDS, Judge.

Plaintiff, Wilfred M. Mason, brought this action ex delicto against defendants, Raymond J. Maestri, Noel Maestri Carpets, Inc. and State Farm Fire and Casualty Company. From a judgment entered on a jury verdict in favor of defendants, plaintiff appeals. We affirm.

Plaintiff's petition alleged that he was making a delivery to Noel Maestri Carpets, Inc. when he was struck by a forklift machine operated by Raymond Maestri. Plaintiff alleged that at the time of the accident Raymond Maestri, an employee of Noel Maestri Carpets, Inc., was acting in the course and scope of his employment. The asserted liability of State Farm Fire and Casualty Company was based upon its status as liability insurer of Noel Maestri Carpets, Inc.

Plaintiff’s brief fails to set forth any assignments of error. However, counsel for plaintiff asserts that the issue on appeal is whether the jury committed manifest error when it:

“... failed to properly apply the law as based on the evidence produced at trial by finding that the defendants were not negligent since the clear preponderance [sic] of the evidence (if not all of the evidence) indicated that the defendants were negligent.”

The form of the jury’s verdict does not reveal the basis for its decision in favor of the defendants. Thus, there is no basis for plaintiff’s assertion that the jury found Raymond Maestri’s actions free from negligence. In fact, the evidence in the record clearly establishes that Maestri was negligent in leaving the forklift unattended, on an inclined surface, with its motor running. Defendants did not seriously contest the issue of Maestri’s negligence.

However, defendants did contest plaintiff’s allegations that he was struck in the back by the boom of the forklift and that he sustained an injury from that incident. The jury’s verdict in favor of defendants was apparently based upon its conclusion that plaintiff failed to carry its burden of proof on these issues.

Both Mason and Maestri testified with regard to the incident in question. Their versions of what happened differ in some substantial respects.

Mason testified that he backed his delivery truck, containing rolls of flooring material, up to the warehouse at Noel Maestri Carpets, Inc. Maestri then attempted to unload a roll of vinyl flooring with a forklift. According to Mason, Maestri inserted the boom into the roll of flooring, lifted it and moved it three or four feet out of the truck. Mason testified that Maestri then lowered the roll to the floor of the truck, backed the forklift away and got off. Mason stated that he could not figure out why Maestri did this unless he wanted to unload the roll by hand. Mason testified that he was standing inside the truck with his back to the open doors when he heard Maestri say “Oh, oh.” According to Mason, he looked around and saw the forklift rolling toward him. Mason testified that the forklift boom struck him in the back, causing the injuries complained of.

As stated earlier, Maestri’s testimony differs from that of Mason on some substantial points. Maestri testified that he never picked up the roll of vinyl, which he said was laying flat on the floor of the delivery truck. According to Maestri, he attempted to insert the boom into the roll but was prevented from doing so because another roll of flooring material was laying sideways on the floor of the truck, blocking access to the roll which was to be unloaded. Maestri testified that he backed the forklift away from the truck and got off in order to help Mason move the roll which was laying sideways in the truck. According to Maes-tri, he had positioned the forklift boom no higher than ten inches above the floor of the truck and left it at this height when he backed up. Maestri testified that as he climbed aboard the truck, he noticed the forklift “edging forward” and he got down and stopped it. Maestri estimated the forklift moved no more than eight to ten inches. According to Maestri, Mason was facing the forklift and the door of the truck when he (Maestri) noticed the forklift moving. Maestri turned his back on Mason when he went to stop the forklift. Maestri testified that when he returned to the truck, Mason was sitting on the sideways roll of vinyl, still facing the open doors, and told him that he had been hit in the back by the boom. There were no other witnesses to the incident.

It is obvious, from the testimony discussed above, that the jury was called upon to make a determination of witness credibility. The trier of fact is in a unique position to make such a determination. Apparently, the jury accepted Maestri’s account of the incident in question and concluded that Mason was not struck in the back by the forklift boom.

Under Maestri’s version of the incident, Mason could not have been hit by the boom as he claims. Maestri testified that he had positioned the boom no higher than ten inches above the floor of the truck. This is consistent, to a degree, with the testimony of Mason, who stated that Maestri lowered the roll of vinyl to the floor of the truck and then backed up. Mason did not say that Maestri then raised the boom. Thus, it is difficult to conceive how Mason, who was standing in the truck and is five feet nine inches tall, could have been struck in the back by the boom.

Furthermore, we note that the plaintiff’s credibility was called into question at trial. Plaintiff has a history of work-related back trouble and claimed that the incident in question aggravated a pre-existing condition. Defendants established at trial that in April of 1976, plaintiff injured his lower back while working for Cole Manufacturing Company. After that accident, plaintiff entered into a settlement with his employer’s workmen’s compensation insurer. In his deposition and at trial, when relating his employment and medical history, plaintiff failed to mention Cole Manufacturing Company or his injury.

When questioned at trial, plaintiff denied ever having worked for Cole Manufacturing Company. He likewise denied ever having been injured or making a workmen’s compensation settlement with Cole or its insurers. Finally, when confronted with proof of his employment by Cole, his injury and the subsequent settlement, plaintiff contended that he then remembered his employment by Cole, but not his injury or the settlement. Plaintiff further testified that he did not remember consulting with Dr. Morris Fisher, although defendants introduced proof that Mason had made 40 visits to Dr. Fisher for treatment of his April, 1976 injury. Plaintiff blamed his memory difficulty on his experiences in the Vietnam War. Clearly, the net effect of this evidence is to cast grave doubts upon plaintiff’s veracity or the quality of his memory. In either event, plaintiff’s credibility was seriously undermined at trial.

We hold that there was evidence before the jury which, upon its reasonable evaluation of credibility, furnished a reasonable factual basis for its finding in favor of defendants and our review of the record establishes that this finding is not clearly wrong. Arceneanx v. Domingue, 365 So.2d 1330 (La.1978); Canter v. Koehring Company, 283 So .2d 716 (La.1973).

For the foregoing reasons, the judgment of the district court is affirmed. All costs of these proceedings are assessed against plaintiff-appellant.

AFFIRMED.

      . Testimony at trial established that the forklift operated by Maestri was equipped with a special boom for the handling of rolls of carpet and flooring material. This boom consisted of a single long metal pole which is inserted into the hole in the center of a roll, allowing the forklift operator to lift the roll from its end.

      . According to Maestri, he got off the forklift to help Mason move the roll because Mason had told him earlier that he had recently been released from the hospital following a hernia operation. Maestri also testified that Mason told him he had back trouble.

      . In April of 1976, plaintiff injured his back while employed by Cole Manufacturing Company. In November of 1977, plaintiff sustained an injury to his lower back while lifting a roll of carpet. After both of these injuries, plaintiff reached settlements with his employers’ workmen’s compensation insurers.
      In June of 1978, as a result of the latter injury, a bilateral discectomy was performed at the L-5 S-l location on his spine. In March of 1978, spinal fusion of L-5 S-l was performed. Plaintiff contends that the accident which he alleges to have occurred aggravated his preexisting condition and made the spinal fusion necessary.

      .Dr. Henry Miles, a psychiatrist who works for the Veterans Administration, testified that Mason had been hospitalized in 1971 upon his return from Vietnam for a nervous condition which was originally diagnosed as schizophrenia. Plaintiff has had a history of intermittent psychiatric treatment by the V.A. since that time, all related to his nervous condition which includes symptoms of flashbacks, hearing voices, nervousness and depression. Plaintiff claims that his alleged injury caused his nervous condition to worsen.


text:
    Kenny W. MARTIN v. Patrick V. BONANNO, et al.
    No. 15098.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.

      Bryan E. Bush, Jr., Baton Rouge, for plaintiff-appellant Kenny W. Martin.
    Richard T. Redd, and A. Foster Sanders, Baton Rouge, for defendants-appellees Patrick V. Bonanno, Chief of Police, Baton Rouge, City Police Dept, and The City of Baton Rouge.
    Before LOTTINGER, COLE and CARTER, JJ.
   COLE, Judge.

This case concerns plaintiff Kenny W. Martin’s right to collect back pay for the period of separation from his employment with the Baton Rouge City Police Department.

Plaintiff was dismissed on April 10, 1978, from his position as a police officer, due to alleged violations of Sections 301 and 340 of the Police Department Regulations. He appealed his dismissal to the Municipal Fire and Police Civil Service Board (hereinafter referred to as the Board), which found the dismissal to have been illegal and ordered him reinstated with back pay and benefits. The amount due was not fixed by the Board.

The City of Baton Rouge and Police Chief at that time, G.L. Johnston, appealed the decision of the Board to the Nineteenth Judicial District Court. In January of 1981, Honorable Steve A. Alford, Jr., rendered judgment affirming the decision of the Board and dismissed the appeal. Again, the sum due Martin was not set forth in the judgment.

On or about February 6, 1981, plaintiff was instructed to return to work on February 9, 1981. The police department requested information about plaintiff’s outside earnings during the period of separation so the Department could figure the amount of back pay due. Plaintiff refused to provide this information and would not return to work until he received his entire back pay. The Department refused to pay any sums until they obtained the information concerning Martin’s outside earnings.

Plaintiff then filed suit in the Nineteenth Judicial District Court seeking a writ of mandamus directing the City of Baton Rouge and current Police Chief Patrick V. Bonanno to pay back wages of $55,444.50. Defendants answered the suit, alleging the refusal to pay was caused by plaintiff’s failure to provide information concerning his outside wages. Defendants alleged a writ of mandamus was inappropriate because there were discretionary matters involved in the dispute, such as the amount of pay due.

The trial court rendered judgment, ordering Patrick Bonanno, et al. to pay Kenny Martin “[A]ll back wages accruing from April 10, 1978, through March 12, 1981, after deducting therefrom wages earned by plaintiff while employed by Service Painting Company.. . . ” Plaintiff then filed this devolutive appeal.

Plaintiff argues the court erred in ordering his back pay be reduced by his outside wages and, alternatively, that any such set-off should be done on a year by year basis rather than over the entire three year period.

The basis for the court’s ordering the back pay and the setoff is La.R.S. 49:113 which reads as follows:

“Employees in the state or city civil service, who have been illegally discharged from their employment, as found by the appellate courts, shall be entitled to be paid by the employing agency all salaries and wages withheld during the period of illegal separation, against which amount shall be credited and set-off all wages and salaries earned by the employee in private employment in the period of separation.”

Although the statute seems to be so clear as to preclude argument on this issue the appellant insists the statute applies only to situations in which the Board or Commission affirms the employee’s discharge but the appellate court finds the discharge to be illegal. Appellant argues the statute doesn’t apply in the present ease because the Board found the discharge to be illegal. This argument is totally without merit. The right to offset outside wages was challenged in LeBlanc v. New Orleans Police Department, 231 So.2d 568 (La.App. 4th Cir.1970), writ refused 1970. There, as in the present case, the Commission found the employee had been illegally discharged. The court of appeal agreed with that determination and ordered reinstatement, back wages and a setoff for all outside wages. The court traced the development of La. R.S. 49:113 and then applied it to the facts of that case. See also Parta v. New Orleans Police Department, 231 So.2d 574 (La.App. 4th Cir.1970), writ refused 1970.

In a very creative argument, appellant contends because of the phrase “Employees . . . who have been illegally discharged ... as found by the appellate courts ... . ” means the setoff provision cannot apply in this case because no appellate court has decided the discharge was illegal. We point out this interpretation would mean employees whose cases were decided finally by the Board or by the district court would be entitled to full pay without a setoff while those whose cases proceeded to the court of appeal or to the supreme court would be subject to the set-off. This absurd result could hardly have been intended by the legislature. We admit the language of the statute is somewhat inartful, but point out that in this case the district court served as an appellate court. The matter was appealed from the commission to the district court as provided by La.R.S. 33:2501. Therefore, the “appellate court” in fact found the discharge to have been illegal.

We also find no merit in appellant’s argument the setoff should be calculated on a yearly basis rather than based upon the entire period. The statute says “all salaries and wages withheld” should be reimbursed and “all wages and salaries earned” should be used as a setoff. That language would mandate the total wages accrued during the entire period be reduced by the total wages earned during the period. In Hebbler v. New Orleans Fire Department, 310 So.2d 113, (La.1975) the court noted the purpose of La.R.S. 49:113 was to make the employee “whole.” Using the year by year calculation the employee might well enjoy a windfall in that in any one given year he may have earned substantially more in private employment than he would have earned in the police department. For that year there could be no “setoff” at all. The only accurate method to use so that the employee is compensated just as though he had remained in the employ of the department is to subtract the total outside earnings from the total wages due.

Appellees insist mandamus is an inappropriate procedure and therefore the mandamus order should be reversed and the case remanded for a dismissal. They contend mandamus is appropriate only when the matter is a purely ministerial one. In the present case the amount of the wages has not been determined and the appellant is now claiming he is entitled to have certain benefits calculated into the figure, such as overtime, sick leave and retirement.

We need not reach the issue of whether or not mandamus is appropriate in this case. Mandamus is a summary proceeding. La.Code Civ.P. art. 2592. The proper method of opposing its use is to raise the dilatory exception urging the objection of unauthorized use of a summary proceeding. La.Code Civ.P. art. 926(3). The dilatory exception must be raised prior to answer or judgment by default (art. 928), and failure to do so means the exception is waived (art. 926). The record shows no exception was raised. Defendant did object to the use of a mandamus in his answer but this objection was not timely. Further, the trial court, in its written reasons for judgment notes the attorneys “stipulated that the matter could be handled summarily by mandamus. The court had no objection to this procedure.” Therefore, notwithstanding the failure to timely object to the use of mandamus, the appellees are estopped to complain of the mandamus procedure when there had been a stipulation as to its use.

Therefore, we find no error in the court’s issuing a mandamus on this matter. However, we find the relief granted was not specific enough to satisfy either party. Because the judgment was not phrased in terms of the amount due, appellant is now claiming he is entitled to receive certain benefits as part of his back wages. Therefore, we find it necessary to remand this case to the trial court for a hearing and supplemental judgment on the issue of how much money is due appellant. This will be determined from evidence as to what constitutes “salaries and wages” and from evidence showing the amount plaintiff earned in outside employment.

For the foregoing reasons, the judgment of the trial court is affirmed and this case is remanded for further proceedings consistent with this opinion. Costs are to be shared equally by both parties.

AFFIRMED AND REMANDED.

      . The suit is entitled City of Baton Rouge, et al. v. Kenny W. Martin, Number 240,033.

        . The statute reads in part as follows:
      “Any employee under classified service and any appointing authority may appeal from any decision of the board, or from any action taken by the board under the provisions of the Part which is prejudicial to the employee or appointing authority. This appeal shall lie direct to the court of original and unlimited jurisdiction in civil suits of the parish wherein the board is domiciled.”