text:
    Johnny COLEMAN v. CROWN ZELLERBACH CORPORATION.
    No. 15020.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.

      Byard Edwards, Jr., Ponchatoula, for plaintiff-appellee.
    Iddo Pittman, Jr., Hammond, for defendant-appellant.
    Before ELLIS, PONDER and SAVOIE, JJ.
   SAVOIE, Judge.

This appeal stems from the trial court’s award of workmen’s compensation benefits to plaintiff-appellee, including penalties and attorney’s fees.

Two issues are presented to the court: (1) is appellee’s injury within the scope of workmen’s compensation benefits, and (2) was defendant-appellant’s refusal to pay such benefits arbitrary and capricious conduct sufficient to entitle appellee to an award of penalties and attorney’s fees.

We amend and affirm.

This suit arose when appellant failed to pay workmen’s compensation benefits to appellee following a work-related injury sustained on August 3, 1978. After first aid was administered, appellee was released to return to work. Asserting continual pain, appellee was x-rayed for possible additional injuries with negative results. Subsequent examination and treatment by a chiropractor indicated a pinched nerve.

Appellee failed to deliver a work excusal slip to defendant and was subsequently terminated for absenteeism. Suit was filed on September 8, 1978, less than sixty days after the accident. Defendant asserts its refusal to pay is based upon the statements of two examining physicians who stated that plaintiff was not disabled and could return to work.

Workmen’s compensation benefits are provided for in L.S.A.-R.S. 23:1031. To effectuate the beneficent purpose of the statute, it must be given a liberal interpretation. Landreneau v. Liberty Mutual Insurance Company, 309 So.2d 283 (La.1975); Johnson v. Aetna Casualty & Surety Co., 387 So.2d 1340 (La.App. 1st Cir.1980), writ denied, 393 So.2d 746 (La.1980); Woodard v. J & M Seafood Restaurant, 413 So.2d 536 (La.App. 4th Cir.1982). A prerequisite to the award of workmen’s compensation consists of three factual findings:

1. That a contract of employment existed as between the plaintiff and defendant;
2. That plaintiff was engaged in a hazardous occupation; and
3. That the plaintiff was injured while in the course and scope of his employment.
Castille v. Sibille, 342 So.2d 279 (La. App. 3rd Cir.1977).

The record clearly supports the trial court’s findings that appellee was: (1) employed by appellant, (2) engaged in a hazardous occupation, and (3) injured while in the course and scope of his employment.

The only medical testimony presented at the trial was that of Dr. Gideon, a chiropractor, who treated appellee’s injury. Dr. Faulkenberry, the initial examining physician, died prior to trial. A deposition of Dr. Lipscomb, to whom appellee had been referred by Dr. Faulkenberry, was not introduced into evidence at trial nor is it in conflict with Dr. Gideon’s testimony. The trial court was not clearly wrong in accepting the unrebutted testimony of Dr. Gideon.

The trial court has much discretion in determining the amount and length of workmen’s compensation benefits to be awarded. Campbell v. Baker, Culpepper & Brunson, 382 So.2d 1046 (La.App. 2d Cir.1980), writ denied, 385 So.2d 793 (La.1980); Bourgeois v. South Central Bell Telephone Company, 407 So.2d 1245 (La.App. 4th Cir.1981). The trial court did not err as to its award.

An award of penalties and attorney’s fees must, however, meet the statutory provisions of L.S.A.-R.S. 23:1201.2(A), which state:

“Any employer whose liability for claims arising under the provisions of this Chapter is not covered by insurance, shall pay the amount of any claim due under the provisions of this Chapter, within sixty days after receipt of written notice. Failure to make such payment within sixty days after receipt of notice, when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the employer to a penalty, in addition to the amount of claim due, of 12% of the total amount of such claim... . together with all reasonable attorney’s fees ...” (Emphasis added).

Plaintiff’s burden is to provide his employer with written notice of his claim and to prove that the employer has been arbitrary and capricious in his failure to pay the benefits due. Thomas v. McInnis Bros. Construction, Inc., 401 So.2d 522 (La.App. 2nd Cir.1981), writ denied, 406 So.2d 608 (La.1981). Arbitrary and capricious conduct may be presumed when an employer fails to pay any compensation benefits within sixty days after written notice of such claim. An employer’s good-faith defense will preclude such penalties and attorney’s fees. Refusal to pay compensation benefits based on information that an injured employee is now fit to return to work is not arbitrary and capricious conduct, sufficient to justify an award of penalties and attorney’s fees, even though subsequent events prove the conclusion of fitness to be an error. Jones v. Southern Tupelo Lumber Company, 233 So.2d 264 (La.App. 1st Cir.1970), reversed in part, and amended, and as amended, affirmed, 257 La. 869, 244 So.2d 815 (1971).

The record reflects that written notice of the demand for compensation required by statute was never given. Verbal notification, which appellee contends he gave, is insufficient. L.S.A.-R.S. 23:1201.2; Breaux v. Marine Electric and Reliance Insurance Company, 369 So.2d 196 (La.App. 3rd Cir.1979), writ denied, 371 So.2d 1344 (La.1979). Appellant was given written notice of such demand with the service of suit. Within the statutory sixty-day period, commenced with the filing of suit on September 8, 1978, appellants answered, asserting a denial of compensation benefits due appel-lee based on the medical conclusions of two examining physicians. This is a good-faith defense. See Jones, supra. The award of penalties and attorney’s fees is unsupported by statute, jurisprudence or the record and is clearly wrong.

For the foregoing reasons, the judgment of the trial court is amended to delete the award of penalties and attorney’s fees, and as amended, affirmed. Costs of this appeal are to be borne equally by appellant and appellee.

AMENDED AND AFFIRMED.


source: Caselaw Access Project

author: ELLIS, Judge.

license: Public Domain

text:
    Opal Jane DAIGLE In her Capacity as the Tutrix of the Minor Child, Brandon Lee Daigle v. The TRAVELERS INSURANCE COMPANY and Bay Drilling Corporation.
    No. 15030.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.

      T. Michael Masterson, Thibodaux, for plaintiffs-appellants Opal Jane Daigle, etc.
    Robert L. Morris, Houma, for defendant-appellee Travelers Ins. Co.
    John D. Fitzmorris, Jr., New Orleans, for defendant-appellee Bay Drilling Corp.
    Before ELLIS, PONDER and SAVOIE, JJ.
   ELLIS, Judge.

This is a suit by Opal Jane Daigle, as tutrix of her minor child, Brandon Lee Dai-gle, for benefits allegedly due Brandon under a group insurance policy written by The Travelers Insurance Company and covering employees of Bay Drilling Corporation against accidental death. Ricky J. Breaux, Brandon’s natural father, when in the employ of Bay, had designated Brandon as his beneficiary under the said policy. The record reveals that Breaux left his employment with Bay on April 23, 1979, received his last pay check on April 30,1979, and was shot and killed on May 13, 1979.

Travelers denied liability under the accidental death policy on the ground that coverage had lapsed prior to Mr. Breaux’s death. This suit followed, naming Travelers and Bay as defendants. After trial on the merits, judgment was rendered dismissing plaintiff’s case, and she has appealed.

The documents stipulated into the record reveal that Texaco, Inc., of which Bay Drilling is a subsidiary, offered various employee benefits, including a Medical Plan, an Accident and Sick Benefit Plan, a Permanent Total Disability Plan, a Group Life Insurance Plan, and an Accidental Death and Dismemberment Insurance Plan. Ricky J. Breaux was covered by the Medical Plan, the Group Life Plan, and the Accidental Death Plan. Separate premiums for each plan were deducted from his pay check each month.

His coverage under the Group Life plan totalled $48,000.00. The Group Life policy provided that “The insurance of any Employee covered hereunder shall terminate Thirty-one days after his employment with the Employer ... shall terminate....” Since Mr. Breaux died less than 31 days after he left the employment of Bay, full payment under the Group Life Plan was made to Brandon.

The Accidental Death and Dismemberment (A.D. & D.) policy, No. GA884001, covered employees who were eligible for coverage under various group life policies written for Texaco employees, including No. G-228700, under which Mr. Breaux was covered. Mr. Breaux elected to have $190,-000.00 coverage under the A.D. & D. policy. Policy No. GA884001 provides that its coverage shall terminate automatically “On the last day of the calendar month during which such Employe’s employment with the Employer in the classes of Employes eligible for insurance under this policy shall terminate.” If this clause is applicable, it is clear that Mr. Breaux’s coverage for accidental death terminated on April 30, 1979.

However, plaintiff argues that the Accidental Death and Dismemberment Policy should be classified as life insurance rather than health and accident insurance, and terminable only in accordance with the terms of R.S. 22:176, which provides for conversion of a group policy to an individual policy within 31 days of the termination of employment, and for payment of the benefit under the group policy if the insured should die during the conversion period.

Plaintiff argues that, since under R.S. 22:6(1) life insurance policies may include “additional benefits in the event of death by accident;” and since the A.D. & D. policy herein was available only to those eligible for coverage under certain group life policies; and since the certificate of insurance furnished to Mr. Breaux states that it furnished “additional financial protection,” the A.D. & D. policy is actually an adjunct to the group life policy, a part thereof, and governed by the laws pertaining to life insurance.

Defendants argue that the A.D. & D. policy is entirely separate and distinct from the life insurance policy, and is governed by the laws pertaining to health and accident insurance, which permit termination of the policy in accordance with its terms.

In ruling on the point, the trial judge found that the two group policies were separate and distinct, and had different purposes; that the designation of beneficiary forms were different for each policy; and that the payroll deductions for each policy were at different rates and were individually deducted from Mr. Breaux’s wages. We further note that it would be possible to have the A.D. & D. coverage, so long as the policy holder was eligible for life insurance, even though he elected not to take the group life policy.

We agree with the trial judge that the two policies are separate and distinct, and that the A.D. & D. policy terminated, according to its provisions, on April 30, 1979, prior to Breaux’s death.

Plaintiff’s other contention is based on language in the A.D. & D. policy, which requires that the insurer issue to the employee a certificate of insurance, which informs the employee, inter alia, of the rights to which he is entitled upon termination of the policy. It is argued that there is no evidence in the record that such a certificate was delivered to Ricky J. Breaux, and that the termination provision of the policy is therefore not applicable to Mr. Breaux.

R.S. 22:215(A)(3)(g) requires that the insurer issue to the policyholder for delivery to each employee a certificate of insurance disclosing the “benefits, limitations, exclusions and reductions” contained in the policy. The policy itself requires that such a certificate be issued. The record is silent as to whether such a certificate was, in fact, delivered to Mr. Breaux. The documents in the case, which were stipulated into evidence by the parties hereto, include such a certificate. However, plaintiff claims that, in the absence of proof of delivery, she can not be bound by the termination provisions thereof.

We hold, however, that the burden of proving non-delivery of the certificate rests with plaintiff. Plaintiff is required to establish, by a preponderance of the evidence, every fact necessary to establish coverage under the policy. Ceasar v. Great Falls Ins. Co., 371 So.2d 1286 (La.App. 3rd Cir.1979). Since she has failed to establish the fact of non-delivery, her argument as to the effect thereof, if valid, must fail.

The judgment appealed from is therefore affirmed, at plaintiffs cost.

AFFIRMED.


author: PONDER, Judge.

text:
    Troy COULTER v. DEPARTMENT OF HEALTH AND HUMAN RESOURCES, Pinecrest State School.
    No. 15035.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.

      Edward Larvadain, Jr., Alexandria, for appellant.
    E. Michael Harrison, Dept, of Health and Human Resources, Legal Div., Baton Rouge, for appellee.
    Robert Boland, Jr., Dept, of Civil Service, Baton Rouge, for George Hamner, Director Dept, of State Civil Service.
    Before ELLIS, PONDER and SAVOIE, JJ.
   PONDER, Judge.

Plaintiff appealed from a decision of the Civil Service Commission upholding his suspension and termination.

The issues are: the sufficiency of notice of the charges against plaintiff, the propriety of the testimony of one of the residents at Pinecrest State School and the adequacy of proof.

We affirm.

Plaintiff, a Resident Training Specialist I at Pinecrest State School, an institution for persons with serious physical and mental disabilities, was verbally suspended from his employment. Later, he was terminated on charges of unnatural sexual activities with some of the male residents. The letter gave the date, time, location and exact nature of one such act, but did not name the witness. It listed other incidents and stated that plaintiff had been moved to another cottage for closer observation after a report of sexual misconduct. Plaintiff denied all allegations.

The Civil Service Commission refused to grant plaintiff’s motion for summary disposition, holding that the failure to name a witness in a charge did not render the charge fatally defective.

The Commission, after hearing the evidence, found that the appointing authority had proved the charge and affirmed the termination.

Plaintiff first argues that the degree of specificity necessary to put an employee on notice of the charges against him was not met, because of the omission of the name of the witness.

A classified employee must be told the time, place and nature of the charged offense in sufficient detail for him to prepare his defense. Shelfo v. LHHRA, Pinecrest State School, 361 So.2d 1268 (La.App. 1st Cir.1978), writ denied, 364 So.2d 122 (La.1978).

The dismissal letter gave the date, time, place and exact nature of the sexual misconduct with which plaintiff was charged. We hold that the letter gave sufficient notice to the plaintiff.

Appellant claims that the Commission erred in allowing a resident to testify to prior incidents without having the oath administered to him, without a determination that he understood the nature of the oath and despite the fact that the resident was not listed as the cause of the disciplinary action.

The record shows that the resident was questioned as to his understanding and that he was administered the oath. In the absence of any efforts to correct the record, we adopt these facts as being proved.

The Commission found that no disciplinary action was taken as a result of the first incident because the inmate was of doubtful veracity. The proved incident was found to be of sufficient severity as to justify the action taken. We agree.

Plaintiff’s final contention is that the appointing authority failed to prove its case by a preponderance of the evidence. The Commission’s findings of fact must be accorded much weight and will not be overturned in the absence of manifest error. Brook v. Louisiana State University, Baton Rouge Campus, 405 So.2d 1216 (La.App. 1st Cir.1981). We cannot say that finding was manifestly erroneous, even when evidence of the first incident is not considered. We find no error.

For these reasons, the Commission’s decision is affirmed with costs assessed to the plaintiff.

AFFIRMED.


text:
    Milton MARSHALL v. BENO TRUCK EQUIPMENT, INC., Its Owner/s and/or Beno’s Crane Rental, Inc., and Leasing Services, Inc.
    No. 15038.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.
    Writ Denied Dec. 20,1982.
    David R. Heno, Dan C. Garner, New Orleans, for Milton Marshall, plaintiff in original suit.
    John S. White, Jr., Baton Rouge, for Leasing Services, Inc., defendant-appellant.
    James E. Moore, Baton Rouge, for Aetna Casualty & Surety Co., defendant-appellee.
    William A. Norfolk, Baton Rouge, for Beno’s Truck and Equipment Co., defendant-appellee.
    Joseph W. Rausch, New Orleans, for Southern American Ins. Co., third party defendant-appellee.
    Dean A. Sutherland, New Orleans, for The Heil Co. and The Hartford Acc. & Indem. Co., defendants-appellees.
    Before ELLIS, PONDER and SAVOIE, JJ.
   PONDER, Judge.

Third party plaintiff, Leasing Services, Inc., has appealed from the judgment that granted a motion for summary judgment of dismissal made by third party defendant, Aetna Casualty & Surety Company, and denied its own motion for summary judgment for a declaration that Aetna affords Leasing Services, Inc., both insurance coverage and a duty to defend against a claim for damages brought by plaintiff.

The issue is the coverage of an insurance policy issued by Aetna to Leasing Services, Inc. We affirm.

Leasing Services, Inc. purchased a truck in 1975. After having installed a steel platform, beginning in 1976, it leased the truck to Thomas H. Heard, General Contractor, Inc. The Aetna Casualty & Surety Company issued an insurance policy to Leasing Services, Inc., with a term of December 2, 1977 to December 2, 1978. The truck here involved was not listed among the eight vehicles entered on an automobile schedule made a part of the policy. Plaintiff, Milton Marshall, a mechanic employed by Thomas H. Heard, was injured on August 31, 1978, when the dump bed fell on him while he was working on the truck.

The relevant insuring agreement reads as follows:

1. Bodily Injury Liability Coverage
Property Damage Liability Coverage The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury or property damage to which this insurance applies, caused by an occurrence and arising out of the ownership, maintenance or use, including loading and unloading, for the purposes stated as applicable thereto in the declarations, or an owned automobile or of a temporary substitute automobile, and the company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent, and may make such investigation and settlement of any claim or suit as it deems expedient, but the company shall not be obligated to pay any claim or judgment or to defend any suit after the applicable limit of the company’s liability has been exhausted by payment of judgments or settlements.
“Owned automobile” is defined as:
“... either
(a) an automobile which is owned by the named insured and described in the declarations; or
(b) an automobile ownership of which is newly acquired by the named insured during the policy period, provided
(i) it replaces an owned automobile as defined in (a) above, or
(ii) the company insures all automobiles owned by the named insured on the date of such acquisition and the named insured notifies the company within 30 days thereafter of his election to make this and no other policy issued by the company applicable to such automobile and pays any additional premium required therefor; * * * ”

Admittedly, the truck was not newly acquired during the policy period and was not listed as required by (a).

Appellant contends, nevertheless, that the truck is covered because of the provisions of a policy endorsement containing the following:

“The insurance afforded is only with respect to such of the following Coverages as are indicated by specific premium charge or charges and, under each such Coverage, applies only to such licensed owned automobiles or types thereof as are so indicated, by description or other entry, herein for that purpose.
“It is agreed that the insurance with respect to owned automobiles and to temporary substitute automobiles applies to licensed owned automobiles which are designated (by description or otherwise) in the Schedule as subject to this endorsement, and to a temporary substitute automobile therefor, * *

There is no list of automobiles on this endorsement which, however, does contain the word “Incl.” six times and is in that portion of a bulky policy dealing with automobiles and is separated from the schedule of eight vehicles mentioned above by provisions dealing with automobile coverage.

Aetna contends, and the trial court evidently concluded, that the purpose of the endorsement relied upon by Leasing Services, Inc., was to eliminate the necessity of having to report automobiles newly acquired during the policy period but was not intended to cover and did not cover vehicles owned at the time of issuance of the policy and not disclosed on the schedule. We agree.

For these reasons, the judgment is affirmed at appellant’s cost.

AFFIRMED.


author: SAVOIE, Judge.

text:
    Julia KIMBALL v. ST. PAUL INSURANCE COMPANY.
    No. 15040.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.
    George R. Covert, Baton Rouge, for plaintiff-appellant Julia Kimball.
    Donald S. Zuber, Baton Rouge, for defendant-appellee St. Paul Ins. Co.
    Before ELLIS, PONDER and SAVOIE, JJ.
   SAVOIE, Judge.

Plaintiff appeals the dismissal of her tort claim against defendant’s insured. She contends the trial court erred in two respects: (1) In finding the insured and his nurse used the requisite amount of care required by plaintiff’s condition and that no unreasonable risk of injury was created when the nurse failed to assist plaintiff in sitting; and (2) In finding the chair did not create an unreasonable risk of harm. Plaintiff has failed to establish any manifest error on the part of the trial court. Therefore, we affirm.

Plaintiff was attempting to sit in a secretarial-type chair in the medical office of the defendant’s insured when she fell to the floor. Her injuries are a consequence of this mishap.

However, to recover damages for a defendant’s negligence, the plaintiff must prove that: (1) the act complained of was a cause-in-fact of the accident; (2) the defendant had a duty, either statutory or non-statutory, to protect plaintiff against the cause of harm complained of; (3) the defendant breached this duty; and (4) plaintiff was harmed by the breach. Mathews v. Elder International, 400 So.2d 251 (La.App. 4th Cir.1981), writ denied, 406 So.2d 609 (La.1981); Kane v. Braquet, 368 So.2d 1176 (La.App. 3rd Cir.1979), writ denied, 369 So.2d 1366 (La.1979).

Plaintiff does not assert she required or requested assistance in walking to the vision field testing room. The record reflects plaintiff was in good health with a normal field of vision. Considering the record, plaintiff has failed to establish the nurse’s failure to assist her as the cause-in-fact of the accident. Conceding arguendo that “but for” the nurse’s failure to assist plaintiff, she would not have fallen, we now consider whether defendant’s insured owed a duty to assist plaintiff.

Plaintiff argues that the trial court erred in finding the conduct of defendant’s insured and his nurse constituted the requisite amount of care and created no reasonable risk of injury. The duty of care owed here is analogous to that owed by hospitals to their patients.

“A hospital must exercise the care of a patient that his condition requires. This duty extends to protecting a patient from dangers which may result from plaintiff’s mental and physical incapacities and from external circumstances peculiarly within the hospital’s control.” Sabella v. Baton Rouge General Hospital, 408 So.2d 382, 384 (La.App. 1st Cir.1981); Mullins v. Our Lady of the Lake Hospital, Inc., 402 So.2d 170 (La.App. 1st Cir.1981); Ray v. AmeriCare Hospital, 400 So.2d 1127 (La.App. 1st Cir.1981), writ denied, 404 So.2d 277 (La.1981).
“... a hospital is not an insurer of a patient’s safety, ...” Ray, supra, p. 1138.

Applying this standard to the present facts, we find no error in the trial court’s conclusions.

The record establishes that plaintiff’s physical condition did not appear to necessitate assistance in walking or sitting. This was so despite plaintiff being 79 years of age at the time of the accident. Further, plaintiff had no prior history of health problems. She did not ask for assistance nor did she appear visually incapacited.

Secondly, plaintiff contends the trial court erred in not concluding the chair created an unreasonable risk of harm. The dangerousness of the thing causing the injury must be proved for liability to attach under L.S.A.-C.C. 2317. Shipp v. City of Alexandria, 395 So.2d 727 (La.1981); Jones v. City of Baton Rouge-Parish of East Baton Rouge, 388 So.2d 737 (La.1980); Loescher v. Parr, 324 So.2d 441 (La.1975).

Relying on Marquez v. City Stores Company, 371 So.2d 810 (La.1979), plaintiff argues the chair’s defectiveness is evidenced by the unusual nature of the occurrence. However, in contrast to Marquez, supra, plaintiff has not shown the use or design of this type of chair to be unreasonably dangerous. Further, there is no testimony that this type of accident was more than a onetime occurrence. The chair was used before and has been used continuously since plaintiff’s accident without repair or further mishap. Therefore, we cannot say the trial court was clearly wrong in concluding the chair was not defective.

Accordingly, we affirm the trial court’s judgment in all respects. Plaintiff is to pay all costs.

AFFIRMED.


text:
    Rose Marie Palmer GRIFFIN v. Ruben E. GRIFFIN.
    No. 15041.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.

      Curtis A. Calloway, Baton Rouge, for plaintiff-appellant Rose Marie Palmer Griffin.

      Raymond L. Simmons, Baton Rouge, for defendants-appellees Ruben E. Griffin and Charles N. Malone, Trustee in Bankruptcy.
    Before ELLIS, PONDER and SAVOIE, JJ.
   PONDER, Judge.

Plaintiff appealed from the judgment denying on the grounds of estoppel her claim for rescission of a sale because of lesion beyond moiety.

The issues are the applicability of a claim for lesion against a trustee in bankruptcy, prescription and estoppel.

Plaintiff, Rose Marie Palmer Griffin, and defendant, Ruben E. Griffin, were married on March 11, 1977, after having lived together for some time. Prior to the marriage, plaintiff sold her house to the defendant and subsequently entered into a wage-earner's plan for bankruptcy. The sale document stated that the sale price was $11,-700.00, with no down payment, and that the defendant was to assume a mortgage of $3,000.00. The property was also encumbered by another mortgage with an approximate balance of $11,700.00, which plaintiff had assumed when she purchased the house.

After a judicial separation, the parties agreed to a community property settlement in which defendant was to transfer the house and other items to plaintiff provided that she assumed all indebtedness. In Griffin v. Griffin, No. 13,044 (1st Cir. Jan. 21, 1980) writ denied, 385 So.2d 267 (La.1980), this court held that the community property settlement was unenforceable because the offer was withdrawn prior to acceptance. The court also held that the original transfer of the property from plaintiff to defendant was not a simulation, because, in assuming the mortgage, defendant had given some consideration.

Thereafter, plaintiff filed this suit alleging the value of the property on the date of the sale to be not less than $30,000.00 and the only consideration was the assumption of a $3,000.00 mortgage. Defendant answered alleging adequate consideration, es-toppel and fraud. Since defendant had filed bankruptcy following the separation, plaintiff later added defendant’s bankruptcy trustee as a defendant.

The trial judge dismissed the suit against the trustee on a motion for directed verdict, holding that plaintiff, after advising the bankruptcy court that she had no real property, accepting the benefits of bankruptcy, and contributing to defendant’s financial problems, was estopped from asserting lesion.

The trustee argues that plaintiff’s claim against him has prescribed since he was not joined as a defendant until more than four years following the sale. La.C.C. Art. 2595. Prescription may be interrupted by service of process upon one with whom an unserved party is solidarily liable, or who is so closely associated with the named defendant that it may be presumed that the unserved party had notice of the action. Kinchen v. Fontenot Construction Co., 359 So.2d 661 (La.App. 1st Cir.1978). There is a sufficient relationship between the trustee and the bankrupt to interrupt prescription by the filing of suit.

Plaintiff first argues that a trustee in bankruptcy is not a third party purchaser within the meaning of the rule that lesion beyond moiety does not extend to a good faith third party vendee. While the current bankruptcy law gives the trustee the rights and powers of a bona fide purchaser, the law in effect at the time of defendant’s petition for bankruptcy was that the trustee was subject to all claims that might have been asserted against the bankrupt. Bank of Marin v. England, 385 U.S. 99, 87 S.Ct. 274, 17 L.Ed. 197 (1966). We find that the trustee is subject to plaintiffs claim of lesion.

Plaintiff argues that estoppel may not be used to preclude a vendor from enforcing a claim based on lesion beyond moiety. Estoppel, not favored in law, prevents a person from asserting against another rights which are inconsistent with his prior acts or admissions. Westenberger v. State, Department of Education, 333 So.2d 264 (La.App. 1st Cir.1976). The necessary elements are 1) a representation by conduct or word; 2) a justifiable reliance thereon, and 3) a change of position to one’s detriment because of the reliance. Wilkinson v. Wilkinson, 323 So.2d 120 (La.1975). We know of no reason why a party asserting lesion beyond moiety should not be estopped, if these conditions are met.

Plaintiff transferred the property to the defendant prior to her filing for bankruptcy so as to make herself eligible to participate in a wage earner’s plan. Plaintiff swore that she owned no real property, and did not list the balance owed on the mortgage as one of her debts.

The defendant and the United States District Court evidently relied on plaintiff’s representations. Defendant testified that he paid the house note which consisted of payments on the $11,700.00 mortgage, and assumed other bills owed by the plaintiff as a result of the transfer. He ultimately had to file for release in bankruptcy himself.

We agree with the trial court that plaintiff should be estopped from asserting this claim after accepting the benefits of the wage earner plan.

Although the trustee failed to plead estoppel, he has the benefit of all defenses available to the bankrupt. Pleadings may be enlarged to include an affirmative defense not specifically pleaded where evidence supporting such defense is introduced without objection. Edwards v. Edwards, 282 So.2d 858 (1st Cir.1973), writ denied, 284 So.2d 777 (La.1973). The defense of estoppel applies to the trustee.

The trial court’s judgment is affirmed with costs assessed to the appellant.

AFFIRMED.

      . La.C.C. Art. 2595:
      Actions for recission [rescission] of sales on account of lesion beyond moiety must be commenced within four years. These four years, with respect to minors, begin only from the day they become of age. With respect to persons of full age, they begin from the date of the sale.

      . 11 U.S.C. § 544(a)(3):
      (a) The trustee shall have, as of the commencement of the case, and without regard to any knowledge of the trustee or of any creditor, the rights and powers of, or may avoid any transfer of property of the debtor or any obligation incurred by the debtor that is voidable by—
      * * * * * *
      (3) a bona fide purchaser of real property from the debtor, against whom applicable law permits such transfer to be perfected, that obtains the status of a bona fide purchaser at the time of the commencement of the case, whether or not such a purchaser exists.

      . 11 U.S.C. § 110(c)(1) as it read prior to the enactment by Pub.L. 95-598, Title I, § 101, Nov. 6, 1978, 92 Stat. 2549 of the new Title 11 entitled “Bankruptcy” which repealed the Bankruptcy Act under which defendant’s petition for bankruptcy was filed:
      (c) The trustee may have the benefit of all defenses available to the bankrupt as against third persons, including statutes of limitation, statutes of frauds, usury, and other personal defenses; and a waiver of any such defense by the bankrupt after bankruptcy shall not bind the trustee. The trustee shall have as of the date of bankruptcy the rights and powers of:
      (1) a creditor who obtained a judgment against the bankrupt upon the date of bankruptcy, whether or not such a creditor exists,
      (2) a creditor who upon the date of bankruptcy obtained an execution returned unsatisfied against the bankrupt, whether or not such a creditor exists, and (3) a creditor who upon the date of bankruptcy obtained a lien by legal or equitable proceedings upon all property, whether or not coming into possession or control of the court, upon which a creditor of the bankrupt upon a simple contract could have obtained such a lien, whether or not such a creditor exists. If a transfer is valid in part against creditors whose rights and powers are conferred upon the trustee under this subdivision, it shall be valid to a like extent against the trustee. In cases where repug-nancy or inconsistency exists with reference to the rights and powers in this subdivision conferred, the trustee may elect which rights and powers to exercise with reference to a particular party, a particular remedy, or a particular transaction, without prejudice to his right to maintain a different position with reference to a different party, a different remedy, or a different transaction.


author: SHORTESS, Judge.

text:
    Alethia Ann Starkey COOPER v. The HEIRS OF St. Clair COOPER, Sr.
    No. 15042.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.
    Joseph A. Sims, Jr., Hammond, for plaintiff.
    Donna Lee, Baton Rouge, for defendant.
    Before EDWARDS, WATKINS and SHORTESS, JJ.
   SHORTESS, Judge.

Mrs. Alethia Ann Starkey Cooper (plaintiff) filed suit on July 20, 1980, seeking to have declared as her separate property a certain tract of land containing 44.8 acres. Three of the seven named defendants, children of the marriage between plaintiff and St. Clair Cooper, Sr., claimed that the property was community. As heirs of St. Clair Cooper, Sr., they alleged they were entitled to be recognized as owners of an undivided one-half interest therein.

The trial judge held that plaintiff proved that this property was her separate property and awarded her judgment against defendants, assessing all costs to Ruby Cooper Pierson, Geneva Cooper Rivett, and Clara Lee Cooper Campbell (the three opposing defendants). These defendants perfected this suspensive appeal.

The issue on appeal is whether this property is separate or community. Defendants urge that the trial judge committed manifest error in determining the tract was plaintiff’s separate property.

The ownership of the property, prior to plaintiff’s purchase, was discussed by the trial judge in his written reasons:

“Testimony proved the property in question had long been owned by the Starkey family. Mrs. Cooper was the only child of Henry Starkey, a Starkey heir. The 44.8 acres can be traced to four lots of 11.2 acres each accumilated (sic) by Henry Starkey. To cure a flaw in the title this property was permitted to be seized and sold for taxes. Henry Kinchen purchased this and other parts of the Starkey Heir property. The subject property was [then] sold to Mrs. Cooper.”

By act of sale dated August 15, 1924, while married to and residing with St. Clair Cooper, Sr., plaintiff purchased the disputed tract from Henry Thomas Kinchen for $725.00, which was paid in cash at the time of the sale. The deed described the tract, situated in Livingston Parish, Louisiana, to wit:

“A certain tract or parcel of land in the South East quarter of Section 22, T. 6 S., R. 6 E., and more particularly described as follows:
Lots 3, 4, 5 and 6, containing 44.8 acres, by survey made by C.M. Moore, Surveyor, dated May 16, 1921, as per plat of said survey, annexed to a deed, made this day, from this vendor to John C. Albin, bounded North by quarter Section line of said Sec. 22, T. 6 S., R. 6 E., East by Section line and Andy Galya, South by Lot 7 of said survey, and West by Lots 1 and 2 of said survey.
Being a portion of the same property acquired by the vendor herein from the heirs of Abi Starkey, by deed of record in Book 37, page 259, of the Conveyances of Livingston Parish, Louisiana.”

The deed also contains the following recital:

“And the said Vendee herein, Mrs. Alet-hia A. Cooper, did declare unto me, said Notary, that she is purchasing the herein-above described property with her own separate and paraphernal funds, derived by inheritance from her deceased mother, and for her own separate use and benefit, and under her separate administration and control, and the same is to form no part of the community of ac-quets and gains which now exists between her and her said husband, S.R. Cooper.”

The law in effect in 1924 clearly established a presumption that all property acquired during the marriage fell into the community of acquets and gains. This remained true, although the property was purchased in the name of only one of the spouses. La.C.C. art. 2402; Curtis v. Curtis, 403 So.2d 56 (La.1981). The party asserting the separate nature of the property has the burden of overcoming this strong presumption in favor of the community. Curtis, supra; Houghton v. Hall; 177 La. 237, 148 So. 37 (1933); Luchsinger v. Boettner, 388 So.2d 93 (La.App. 1st Cir.1980). The jurisprudence developed a triple burden of proof for instances where the wife attempted to prove the separate nature of property. She was required to prove that she used separate funds for the purchase, that these funds were administered by her alone, and that she individually made the investment. Curtis, supra; Southwest Natural Production Company v. Anderson, 239 La. 490, 118 So.2d 897 (1960); Smith v. Smith, 230 La. 509, 89 So.2d 55 (1956); Betz v. Riviere, 211 La. 43, 29 So.2d 465 (1947); Houghton v. Hall, supra; and Luchsinger v. Boettner, supra. A recital in the deed of acquisition concerning the paraphernality of the funds being used and their separate investment is proper evidence, but such a recital, standing alone, will not be sufficient to rebut the community presumption. Smith v. Smith, supra; Johnson v. Johnson, 213 La. 1092, 36 So.2d 396 (1948). The evidence produced must be clear, strict, and legally certain. Southwest Natural Production Company v. Anderson, supra; Succession of Milton, 278 So.2d 159 (La.App. 1st Cir.1973).

An examination of the act of sale conveying the property from Henry Kinchen to plaintiff lists only the plaintiff as vendee, and she alone signed the instrument in that capacity. The deed states that:

“. .. she has been once married, then to St. Clair R. Cooper, with whom she is still living and residing,”

and that she is:

“... purchasing and accepting, and acknowledging delivery and possession for herself, her heirs, and assigns.”

As mentioned earlier, the deed also contains a recitation concerning the separateness of the funds used for the purchase and that the property was “to form no part of the community of acquets and gains” existing between plaintiff and her husband.

Plaintiff was 88 years old at the time of trial, yet was able to testify with ample clarity and coherency as to the events surrounding the purchase. She testified that after her mother died, her father came to live with her and her family; that he remained with them until he died in approximately 1942; that he owned cattle and hogs at that time, which he sold; that he usually placed the funds from these sales in the bank, yet would keep what he needed at home in an old purse; and that on the day of the sale he went and got the money out of this old purse and gave her the funds to purchase the property. Plaintiff further stated that her husband, St. Clair Cooper, Sr., was present at the sale; that the deed was read aloud in his presence; that he made no objection thereto; and that she gave the money ($725.00) in cash to Henry Kinchen to purchase the property.

John Starkey, plaintiffs first cousin, was 81 years old at the time of trial. He was one of the two witnesses who signed the act of sale in 1924. The trial judge gave credence to his testimony and labeled him one of the few unbiased witnesses, “with absolutely nothing to gain.” John Starkey corroborated plaintiff’s version of the sale by stating that he was present when the sale took place; that plaintiff and her husband were sitting together; that plaintiff paid the $700.00 in cash by withdrawing the funds from her purse; and that the deed was read aloud in St. Clair Cooper’s presence, and he made no objection thereto.

A second independent witness whom the trial judge also found to be unbiased, was Berlin Starkey. He, too, was plaintiff’s first cousin, and he was 79 years old at the time of trial. He testified that he and plaintiff were brought up together; that he knew the family well; that he had talked with the family regarding the ownership of the property in question; and stated:

“The only comment I ever made or ever thought of was that it belonged to Mrs. Cooper.”

The trial judge noted that this unfortunate suit arose only after plaintiff had attempted to partition the land between her seven living children, and “certain beneficiaries ... became unsatisfied.” We observe, in reviewing the record, that the oldest living child at the time of the questioned sale was Thelma Cooper Purvis, one of the nominal defendants, who was only 12 years old then. . Much of the testimony of the children as to the events surrounding plaintiff’s purchase of the tract, must be considered with this fact in mind. Four of the named defendants supported plaintiff’s position. Florence Cooper Kinchen testified emphatically that, “... it was always Mother’s property. Daddy never claimed it.” Ora Nell Cooper Garon stated that she had heard family discussions concerning the ownership of the land and that her daddy always spoke of the land as being her mother’s property. The testimony of the remaining two nominal defendants was similar. Admittedly, some of these statements were based on hearsay; however, such statements may be received in explanation and corroboration of known facts which have been established by documentary and circumstantial proof. Southwest Natural Production Company v. Anderson, supra; and See Jones v. Deese, 205 La. 55, 16 So.2d 904 (1944).

The opposing defendants testified that their impression had always been that the property belonged to their mother and father. However, the record is full of documentary evidence which shows that during these defendants’ lives, plaintiff has continually administered the property as her separate estate. Her separate acts of dominion include: (1) redeeming the property in her name after it was sold for taxes in 1932; (2) granting Dixie Electric Membership Corporation a right-of-way in 1941; (3) granting the Louisiana Power and Light Company a right-of-way in 1937; (4) granting South Central Bell Telephone Company a right-of-way in 1976; and (5) granting a mineral lease on the property in 1976. While not positive evidence of ownership, these acts of dominion do tend to show that plaintiff possessed the land as her separate property and that such was presumed by those who sought to gain interests and rights therein. See Guilbeau v. Guilbeau, 224 La. 837, 71 So.2d 129 (1954). The record further reveals that plaintiff sold property from the tract totaling 2 Vi acres to Matthew Kin-chen. Two acres were sold in 1933, and Vi acre in 1944. Plaintiff alone appeared as vendor in both sales; however, in the 1944 sale, St. Clair Cooper, Sr., appears to have signed his wife’s name, as vendor. This was admitted in the testimony of Ruby Cooper Pierson, one of the opposing defendants. We note that several of these acts of ownership were accomplished during the lifetime of plaintiff’s husband, who died in 1944, yet during the twenty years prior to his death, he never appeared to dispute the title of his wife. Furthermore, it was stipulated that the property was assessed in the name of plaintiff. All these factors are to be weighed in determining if the wife has rebutted the presumption in favor of the community. See Jones v. Deese, supra.

Defendants’ counsel elicited much testimony concerning the monies used to redeem the property in 1932. We agree with the trial judge that even assuming community funds were used in the redemption, the character of the property as separate or community, would not be affected. The nature of the property as being separate or community, is established ¿t the time of acquisition. La.C.C. art. 2402; Curtis, supra; Joseph v. Travis, 99 So.2d 548 (La.App. 2d Cir.1957).

Our courts have continually given women the opportunity to prove the true character of disputed property. The Second Circuit in Joseph v. Travis, supra, in discussing the unimportance of an absence of a recitation of paraphernality in a deed, commented with respect to the wife:

“The law is zealous in guarding her interests against those of her husband and/or his heirs and his creditors. She is permitted to assert and establish that the property is her separate and paraphernal property whenever and wherever that fact is questioned.” 99 So.2d at 551.

More recently, the Louisiana Supreme Court, in Curtis, supra, eliminated the restrictions placed on a wife’s ability to prove the separate nature of property purchased on credit. In so doing, the court stated:

“Just as our legislature has amended the matrimonial regimes section of our Civil Code to reflect modem economic and social realities, so are we impelled to eliminate these restrictions and to recognize that rules which produced a just result under certain circumstances may not do so when conditions change.” 403 So.2d at 58.

In light of the applicable law as stated herein and the facts presented, we conclude that the trial judge was not clearly wrong in finding that plaintiff had overcome the presumption in favor of the community. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Accordingly, we affirm his decision declaring the 44.8-acre tract to be the plaintiff’s separate property. All costs of this appeal are assessed to Ruby Cooper Pierson, Geneva Cooper Rivett, and Clara Lee Cooper Campbell.

AFFIRMED.

      . In the actual deed, the words “father and” have been marked through.

      . The proper remedy for the heirs, in regard to community funds expended, is to seek reimbursement from the separate estate. La.C.C. art. 2408.

      . Before Curtis, the wife who bought on credit, in addition to the triple burden, was sometimes required “to show that the cash portion of the purchase price bore such a relation to the total price that the property afforded sufficient security for the credit portion, and that the property afforded sufficient separate revenues to be reasonably certain of being able to meet the deferred payments.”
      403 So.2d at 58, and authorities cited therein.


author: LEAR, Judge.

text:
    Marjorie Delatte RICHE v. JUBAN LUMBER COMPANY, INC.
    No. 15050.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.
    Walton Barnes, II, Zachary, for plaintiff-appellee, Marjorie Delatte Riche.
    Randall J. Cashio, Baton Rouge, for defendant-appellant, Juban Lumber Co., Inc.
    Before COVINGTON, LEAR and LANIER, JJ.
   LEAR, Judge.

This suit arises from a building contract under which Marjorie Delatte Riche (Riche), plaintiff-appellee, contracted with Juban Lumber Company, Inc. (Juban), defendant-appellant, to construct a residence on property owned by Riche. On the basis of Ju-ban’s alleged failure to complete construetion on time and alleged defects in the construction of the residence Riche sued Juban for breach of the building contract. Juban denied Riche’s claims and reconvened for the balance due on the contract. Additionally, Riche cumulated an action for tor-tious conversion of her funds, which was based on her allegation that employees of Juban had forged her signature to certain authorizations and had thereby improperly received funds from her lender. After a jury trial on these cumulated actions, judgment was awarded in favor of Riche on the breach of contract action in the amount of $30,800.00 and on the tortious conversion action in the amount of $11,136.00. Thereafter, defendant filed a motion for remitti-tur or in the alternative a new trial on both cumulated actions. The trial court denied the motion as it related to the breach of contract action, but a remittitur was ordered reducing the judgment on the tor-tious conversion action in the sum of $5,000.00. This remittitur was accepted by plaintiff. Defendant has appealed the judgment only as it relates to the breach of contract action. In an answer to the appeal, Riche seeks to have the original judgment on the tortious conversion reinstated and the amount of damages on the breach of contract action increased.

Juban’s first two specifications of error concern the trial court’s instructions and interrogatories to the jury. Juban claims that the trial court failed to properly instruct the jury, and that such failure requires a reversal of the jury verdict. Juban also claims that the interrogatories directed to the jury were prejudicial and precluded consideration of its reconventional demand.

In its third specification of error, Juban contends that the verdict is contrary to the law and evidence, and seeks review of the merits of this case.

Even were we to agree with Juban concerning its first two specifications of error, we would then be required to render a decision on the merits. Gonzales v. Xerox Corporation, 320 So.2d 163 (La.1975); Keys v. Sambo’s Restaurant, Inc., 389 So.2d 1360 (La.App. 3rd Cir.1980), affirmed, 398 So.2d 1083 (La.1981). Thus, based on our review of the merits of this entire record, and our decision herein, we find it unnecessary to address Juban’s specifications of error numbers 1 and 2.

Riche offered a number of expert witnesses in support of her claim. The first of these witnesses, Mr. Sal Broes, who had been in the home and commercial construction business for approximately forty years, testified that he had inspected the Riche house approximately five times and spent a total of between six and seven hours there. He testified that the roof was improperly and inadequately braced, which has caused the rafters to sag. He also stated that, in its present condition, strong winds could possibly cause the roof to collapse. He also testified that the slab, upon which the house is built, is not level and is uneven in a number of spots, and that a number of the walls have distinct bows in them. Mr. Broes testified that, in order to repair the walls, the roof would have to be jacked up and supported and the walls torn out and reinstalled. He also found numerous minor defects in the house, such as the fact that the garage is not big enough for the car, the brick walls are wavy and curvy, the kitchen cabinets are sagging and pulling the ceiling down, and a number of the doors are improperly hung. Mr. Broes concluded that it would be more costly to attempt to repair these major and minor defects than to rebuild the house. Riche also called Hur-bert Maxwell, a remodeling contractor with twenty years experience, and Donald Grant, who has been a licensed architect for eleven years. Both Mr. Maxwell and Mr. Grant inspected the Riche house and testified that they found the same major and minor defects that Mr. Broes testified to. Mr. Maxwell stated that, if he were asked to undertake this remodeling job, he would begin with a bulldozer. Mr. Leroy Cobb, a real estate appraiser for thirty-six years, also testified for Riche. He stated that he would not list the Riche house, and that no really prudent and sensible person would buy this house, because of the numerous major and minor defects.

Juban also called expert witnesses. One of these witnesses, Mr. William Brockway, an architect, while disagreeing with some of Riche’s witnesses as to the cost of repair, admitted that a number of braces for the rafters were missing and that the slab was not level. He also corroborated Riche’s expert witnesses as to the existence of the other defects in the house.

Substantial performance exists when the construction may be used for the purpose intended regardless of defects or omissions. Thus, it is a question of fact which considers the extent of the defect or non-performance, the degree to which the purpose of the contract is defeated, the ease of correction, and the use or benefit to the owner of the work performed. Ducote v. Arnold, 416 So.2d 180 (La.App. 4th Cir.1982). Because of the major defects in the Riche home, we find that Juban breached its contract with. Riche and that there has been no substantial performance by the contractor. A review of this entire record convinces us that Riche has clearly proven her case by a preponderance of the evidence. We further find that the amount awarded in the breach of contract action is reasonable and will adequately compensate Riche in attempting to repair this house.

Juban next contends that the award in the breach of contract action actually contained ten thousand dollars as attorney fees. Juban filed a motion for a new trial on this basis and attempted to submit evidence from jury members to support its contention. Juban assigns error to the trial court’s refusal to admit such evidence.

It is well established that testimony of jurors to impeach their own verdict on grounds of misconduct or improper application of the court’s instructions is inadmissible to set aside a jury verdict. McAdams v. Holden, 349 So.2d 900 (La.App. 1st Cir.), writ denied, 351 So.2d 176 (La.1977); Dieudonne v. Guidry, 336 So.2d 990 (La. App. 3rd Cir.), writ denied 339 So.2d 853 (La.1976); Renz v. Texas & Pacific Railway Company, 138 So.2d 114 (La.App. 3rd Cir.1962). Thus, we find no error in the trial court’s refusal to admit the testimony offered by Juban to impeach the jury’s verdict.

Juban’s last specification of error concerns the trial court’s refusal to grant a severance of the cumulated actions. Juban contends that the jury could not be impartial as to its defense of the breach of contract action because of the evidence it received relative to the tortious conversion.

While it is not necessary for us to express an opinion on the character of the award made for the tortious conversion action, because that judgment is not being appealed by Juban and has, in fact, been reduced by the trial court, we find, for the reasons stated above, that the jury’s award in the breach of contract action was not excessive and did not result from prejudice.

For the foregoing reasons, the judgment appealed from is hereby affirmed. The relief sought by Riche in her answer to the appeal is hereby denied. Costs on appeal are to be paid by defendant-appellant, Ju-ban Lumber Company, Inc.

AFFIRMED.


author: COVINGTON, Judge.

text:
    Joseph Vernon FOSTER, Jr. v. LOUISIANA DEPARTMENT OF CORRECTIONS.
    No. 15051.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.
    Joseph Vernon Foster, Jr., pro se.
    P. David Guarisco, III, La. Dept, of Justice, Baton Rouge, for defendant-appellee, Louisiana Dept, of Corrections.

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

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

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

APPEAL DISMISSED.


text:
    Gerald K. TATE v. JACOBS ENGINEERING COMPANY, et al.
    No. 15062.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.
    Writ Denied Dec. 10,1982.

      Thomas H. Matuschka, George McGowin, Baton Rouge, for plaintiff-appellant Gerald K. Tate.
    E. Burt Harris, New Orleans, for defendants-appellees Exxon Corp. and George Core.
    Wood Brown, III, New Orleans, for defendants-appellees Jacobs Engineering Co.; H.E. Wiese, Inc., Herman Thompson and the Aetna Ins. Co.
    Michael R. Daigle, New Orleans, for in-tervenor-appellee Associated Indem. Corp.
    Before COVINGTON, LEAR and LANIER, JJ.
   COVINGTON, Judge.

The plaintiff, Gerald K. Tate, has devolu-tively appealed the judgment of the trial court in favor of defendants, Jacobs Engineering Company, H.E. Wiese, Inc., Exxon Corporation, George E. Core, Herman A. Thompson, Ira Samuel Graham, and Aetna Insurance Company. We affirm.

Plaintiff, an iron worker out of Local 623 in Baton Rouge, while engaged as an employee of H.E. Wiese, Inc. in certain construction work on property of Exxon Corporation, having to do with a water treatment facility, sustained a severe injury to his left wrist, when the heavy lid on a “gang-box” (a large box in which certain heavy tools for the job were kept for each particular craft) slammed shut on plaintiff’s wrist.

As a result of this accident, with resulting injury, plaintiff sued Jacobs Engineering Company, H.E. Wiese, Inc., and Exxon Corporation alleging that they owed to Tate a duty of care to provide him with safe equipment and a safe place in which to work. Plaintiff also sued Thompson, Graham and Core, alleging that the aforesaid duty had been delegated to them as executive officers of the defendant corporations. Aetna was named as the liability insurer for Jacobs and Wiese. Associated Indemnity Corporation, as workers’ compensation carrier of Wiese, intervened to recover its compensation payments. Plaintiff alleged that his damages were caused by the failure of the named executive officers to discharge their duties and by their negligence in general. It is further alleged that plaintiff’s injuries were caused by the negligence of the corporate defendants in the design, composition and manufacture of the “gang-box”. In addition, it was alleged that the defendants were strictly liable since they had custody of the box, which contained certain vices and defects. The defendants generally denied any negligence, as well as any negligence in the design, composition or manufacture of the “gang-box” in question. They denied the applicability of a theory of strict liability. They also defended on the basis of contributory negligence and assumption of risk.

At the completion of plaintiff’s case, a motion for a directed verdict was granted insofar as all defendants, except H.E. Wiese, Inc., Herman Thompson, and Ira Samuel Graham, were concerned.

At the conclusion of the trial, the trial court rendered judgment in favor of the remaining defendants, dismissing plaintiff’s suit.

Plaintiff first relies upon a theory of strict liability under LSA-C.C. art. 2317. In an Article 2317 action, in order to be successful, the plaintiff must prove that a thing within the care, custody or control (or garde) of the defendant caused damage to the plaintiff because of a defect which created an unreasonable risk of harm to another. See Loescher v. Parr, 324 So.2d 441 (La.1975); Poole, Does Louisiana Really Have Strict Liability Under Civil Code Articles 2317, 2318, and 2321? (Comment), 40 LLR 207 (1979). Under this theory, as propounded by Loescher, if the thing is unreasonably dangerous to normal use in its current condition, the one having garde of the thing is responsible to the one injured in the course of that use of the thing. Greene v. Catalytic, Inc., 341 So.2d 1172 (La.App. 1 Cir.1977), writ denied, 344 So.2d 4 (La.1977).

In reaching his decision, the trial judge rendered oral reasons for judgment, in part, as follows:

“As a result of the testimony involved herein as well as the evidence that’s been introduced, it’s the opinion of the Court that the testimony and evidence presented does [do] not establish liability on the basis of Article 2317 of the Civil Code. According to the jurisprudence of our state, plaintiff must establish that the thing which caused the injury, in this case the gang-box, was in the care and custody of the defendants. The Court is of the opinion that plaintiff has failed to establish by a preponderance of the evidence that the gang-box in question was indeed in the care and custody of the defendants. The undisputed testimony of all the witnesses in this case is that control over the keys to the gang-box, the positioning of the gang-box on the jobsite, its care and use, were all under the control of the particular trade which used the gang-boxes.
“In the instant case, the only act which the defendants [Wiese] performed as to the gang-boxes was to manufacture the same and provide them to the various trades for the use and storage and protection of the tools provided to those trades for the performance of their trade. At no time pertinent to the accident in question was the gang-box in the custody or control of any of the defendants.
“In order to establish liability under 2317, the plaintiff must further show that the instrumentality in question was defective, and by defective we mean as defined in the case of Rodrique v. Dixilyn Corporation, a federal case of the Fifth Circuit, found at 620 F.2d 537, a decision written by Judge Tate, formerly of our Supreme Court, where it is found that a defect is a condition which causes an unreasonable risk or injury to another. It’s the opinion of the Court that the gang-box in question was not defective under that definition. The existence of a heavy lid with a potential to cause serious injury should it fall on an individual using that gang-box does not itself establish that the box was defective.
“So it is in the Court’s opinion with the gang-box involved here. It is not defective simply because the lid of the box can fall if it is not pushed back far enough and supported properly as had been done on many occasions previously by this very plaintiff.
“As to the question of the alleged inadequate length of the chain on the lid of the gang-box creating a defect, as far as that particular gang-box was concerned, it’s the opinion of the Court that insufficient evidence has been presented to establish that indeed the chain was too short to allow the lid of the box to swing back far enough past the perpendicular to prevent an unreasonable risk of accidental closing of the lid. There are many other equally tenable explanations as to the cause of the lid slamming shut on the plaintiff’s hand, not the least of which is his own failure to properly open and secure it as well as the improper location of the box on an uneven shell surface creating instability. The plaintiff has failed to carry his burden of proof in establishing that the cause of the accident was a defect consisting of the inadequate length of the chain attached to the lid and to the side of the box or any other defect in the box itself.”

The trial court found that the testimony and evidence presented failed to establish liability on the basis of LSA-C.C. art. 2317. According to the jurisprudence, the plaintiff must establish that the thing, the gang-box in this case, was in the garde of the defendants. Hall v. City of New Orleans, 400 So.2d 265 (La.App. 4 Cir.1981). The record shows that the thing involved was not under the care, custody, or control of any of the defendants at the time of the accident. The evidence shows, as the trial court found, that control over the keys to the gang-box, the positioning of the gang-box on the jobsite, and its care and use, were all under the control of the iron workers, the particular trade which used this gang-box.

Moreover, the record does not reveal that the evidence establishes a defect which created an unreasonable risk of harm to another. Under the Supreme Court’s interpretation of “defect” in Loescher, the “gang-box” in the instant case was not a defective thing. Loescher v. Parr, 324 So.2d at 446; Greene v. Catalytic, Inc., supra.

We hold that the record establishes that the trial judge’s finding in favor of the defendants on the issue of strict liability is not clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Canter v. Koehring Company, 283 So.2d 716 (La.1973).

The plaintiff has also sued under a theory of negligence under LSA-C.C. arts. 2315, 2316. Conduct is negligent if it falls below that standard of conduct which the law has established for the protection of others against an unreasonable risk of harm; that is, it is a departure from conduct which is expected of a prudent man under like circumstances. See Canty v. Terrebonne Parish Police Jury, 397 So.2d 1370 (La.App. 1 Cir.1981), writ denied, 401 So.2d 988 (La.1981); Stone, 12 Louisiana Civil Law Treatise, Tort Doctrine, § 273, pp. 381-382 (1977).

We are of the opinion that the conduct of the defendants does not constitute negligence. There is no evidence in the record to indicate that the defendants were in any way negligent. In finding that the defendants were not negligent, the trial judge stated, in his oral reasons, as follows:

“The second theory on which plaintiff seeks to base liability of the defendants is the basic principle of negligence as contained in Louisiana Civil Code Article 2315. In order to establish actionable negligence on the part of Thompson or Graham it is necessary for the plaintiff to establish a duty owed to him by the employer, the delegation of that duty to Thompson or Graham in such a manner as to create a duty owed by them personally to the plaintiff, a personal breach of that duty by Thompson or Graham, and that the breach of the duty caused the plaintiff’s injury. Jurisprudence to this effect can be found in the cases cited by both counsel, namely, Canter v. Koehring, 283 So.2d 716 and Smolinski v. Taulli, 276 So.2d 286.
“Even assuming the initial question of the delegation of the employer’s duty to either Thompson or Graham, or to both of them, an assumption which is not entirely justified by the evidence presented by plaintiff, there remains the significant question of a breach of that duty and the causative relation between the breach and the injury to the plaintiff. Plaintiff charges the two defendants with negligence in failing to provide an adequate safety program, including training and meetings, and failing to provide adequate and safe equipment to the plaintiff in carrying out of his work assignments. As to the safety program, there is no evidence supporting a cause in fact relationship between the lack of a well organized safety program and the injury to the plaintiff. The task assigned to the plaintiff which gave rise to his injury was relatively simple and well within his training, experience and capability. The plaintiff was in the best position to discover any defect in the design of the gang-box which might have created a risk of injury, as he was the one who used it daily to store and distribute the tools it contained to the members of the gang of which he was a part. Plaintiff used the gang-box regularly for a significant period of time with no injury, and his experience with it should have been more than adequate warning of any potential hazard. Further, the plaintiff was in the best position to prevent the accident in question from happening by simply making sure that no matter what the length of the chain on the lid and no matter what the positioning of the gang-box, that before he exposed himself to the hazard of the lid falling on him that he take whatever steps were necessary in the nature of positioning of or support of the lid to make sure that it did not fall on him while he was removing tools from it or while he was preparing to do so. “There is nothing in the evidence to indicate that a more sophisticated safety program at the plant would have prevented the accident which gives rise to this lawsuit. There is no basis for finding actionable negligence on the part of either Thompson or Graham in connection with the overall safety program at the plant, including the lack of regular and thorough inspections of the gang-boxes in use on the jobsite.
“Accordingly, for oral reasons assigned, it is the ruling of the Court that the plaintiff has failed to establish liability on the part of any of the defendants in this suit for the injuries that he received and that therefore the plaintiff’s action is necessarily dismissed at his cost .... ”

As stated above, Jacobs Engineering was dismissed on a directed verdict. There was no evidence that it had any connection with the incidents that were the subject of the lawsuit other than being the parent company of Wiese, the employer of Tate. Exxon and Core, its employee, also had no connection with the incidents giving rise to the lawsuit. There was no evidence of any negligence on the part of either of these defendants. Exxon (and its employee) had nothing to do with the design, construction or maintenance of the gang-box. Neither Exxon nor Core had any garde over the gang-box. The trial court properly sustained a motion for a directed verdict as to these defendants.

The suit against H.E. Wiese, Inc. must also be dismissed, because Wiese is the employer of Tate. The exclusivity of Workmen’s (Workers’) Compensation as a remedy to an employee is definitely established. LSA-R.S. 23:1031, 1032; Courtney v. BASF Wyandotte Corporation, 385 So.2d 391 (La.App. 1 Cir.1980), writ denied, 386 So.2d 359 (La.1980).

As stated above, the individual defendants were in no way negligent and they did not have garde over the gang-box involved in the injury to Tate.

We have carefully read the record, and find that the trial judge has correctly disposed of the factual and legal issues presented by this case.

Accordingly, for the assigned reasons, the judgment is affirmed at plaintiff-appellant’s costs.

AFFIRMED.

      . C.C. art. 2317 states:
      “We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. This, however, is to be understood with the following modifications.”


text:
    Leon Charles SEYMOUR v. TRANSOCEAN MARINE, INC.
    No. 15064.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.

      Harold J. Lamy, Barker, Boudreaux, Lamy, Gardner & Foley, New Orleans, for plaintiff-appellant.
    Nicholas F. LaRocca, Jr., Lippman, Mahfouz, Martin, LaRocca, Stansbury & Antin, Morgan City, for defendant-appellee.
    Before COVINGTON, LEAR and LANIER, JJ.
   LEAR, Judge.

Plaintiff, Leon Seymour (Seymour), was employed by Transocean Marine, Inc. (Transocean) as a deckhand aboard the motor vessel LYN JA on or about March 16, 1980. While working in this capacity Seymour sustained a minor injury to his big toe in an accident on board the vessel on July 3, 1980. As a result of this injury, he was unable to work as a deckhand and was temporarily assigned to work out of Trans-ocean’s office in Morgan City, Louisiana. Ten days after this temporary reassignment, on July 13, 1980, Seymour was seriously injured in a work-related automobile accident. Due to these injuries Seymour instituted a suit against Transocean for workmen’s compensation benefits under LSA R.S. 23:1021, et seq. In response, Transocean filed a motion for summary judgment arguing that Seymour was at the time of the July 13th accident a Jones Act seaman under 46 U.S.C.A. § 688 and as such was ineligible to receive benefits under the Louisiana Workmen’s Compensation Act. The court granted defendant’s motion for summary judgment and plaintiff herein appeals.

The first issue is whether, under the circumstances presented in this case, a motion for summary judgment was the proper procedure to determine Seymour’s employment status. La.C.C.P. arts. 966 and 967 are as follows:

“Art. 966. Motion for summary judgment; procedure
“The plaintiff or defendant in the principal or any incidental action, with or without supporting affidavits, may move for a summary judgment in his favor for all or part of the relief for which he has prayed. The plaintiff’s motion may be made at any time after the answer has been filed. The defendant’s motion may be made at any time.
“The motion for summary judgment shall be served at least ten days before the time specified for the hearing. The adverse party may serve opposing affidavits prior to the day of the hearing. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. “Art. 967. Same; affidavits
“Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or by further affidavits.
“When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him.
“If it appears from the affidavits of a party opposing the motion that for reasons stated he cannot present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
“If it appears to the satisfaction of the court at any time that any of the affidavits presented pursuant to this article are presented in bad faith or solely for the purpose of delay, the court immediately shall order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused him to incur, including reasonable attorney’s fees. Any offending party or attorney may be adjudged guilty of contempt.”

According to these procedural provisions, a summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, admissions and affidavits on file show there is no genuine issue as to material fact and the mover is entitled to judgment as a matter of law. In this case the record before the court contained only the pleadings and an affidavit filed by defendant Transocean as mover; plaintiff Seymour did not file a countervailing affidavit. Appellant thus argues that due to the lack of depositions, answers to interrogatories or admissions of fact in the record, there was insufficient evidence to warrant granting the motion for summary judgment.

Whether or not summary judgment is appropriate depends not on whether the record contains all of the evidentiary sources referred to in C.C.P. 966, but rather, on whether the record contains sufficient evidence to convince the court that there is no genuine issue as to material fact. A lack of one or more of the evidentiary sources noted in C.C.P. 966 does not necessarily mean there is insufficient evidence. Summary judgments have been granted in instances where the record contained only the pleadings and an affidavit filed by the mover. Haley v. City of Opelousas, 347 So.2d 903 (La.App. 3rd Cir.1977); Roach v. Liberty Mutual Insurance Company, 279 So.2d 775 (La.App. 1st Cir.1973), application denied, 281 So.2d 756 (La.1973).

In this instance, all pertinent facts were before the court and were undisputed. Both the plaintiff and the defendant agree that Seymour suffered a minor injury on July 3, 1980, while working as a deckhand on Transocean’s motor vessel, that he was temporarily reassigned to shore work for Transocean while his injury healed, and that ten days after this reassignment he was again injured while delivering a new valve for a boat engine from Morgan City to Cameron. Although plaintiff describes Seymour as an “office worker” and defendant describes him as a “seaman”, the facts as to why Seymour was at the Morgan City office rather than performing his normal duties as a deckhand on board the motor vessel LYN JA and what he was doing at the time of the July 13th accident are undisputed; it is the legal conclusion to be drawn from these facts that is disputed.

The issue of whether or not an individual is a seaman for Jones Act purposes has been decided by summary judgment in both the state and federal courts prior to this time. Beard v. Shell Oil Company, 606 F.2d 515, (5th Cir.1979); Owens v. Diamond M Drilling Company, 487 F.2d 74 (5th Cir.1973). Alexander v. Hudson Engineering, Incorporated, 378 So.2d 156 (La.App. 1st Cir.1979). Indeed, the court in Owens stated:

“The law applicable to maritime oil workers has developed to the point where in the appropriate case a legal determination may be made rather than submit the matter to a jury.”

For the above reasons, we find that under the circumstances described in this case the use of motion for summary judgment was appropriate.

Next, appellant argues the court below erred in its finding that Seymour was a Jones Act seaman. Generally, to be found a seaman one must show that he was permanently assigned to a vessel or performed a substantial part of his work on the vessel and his duties contributed to the function of the vessel, accomplishment of its mission or operation or welfare of the vessel. Offshore Company v. Robison, 266 F.2d 769 (5th Cir.1959).

There is, however, a line of cases specifically dealing with individuals who, while employed as seamen, were temporarily reassigned to shore work for various reasons, but nonetheless retained their status as seamen. The court has upheld seaman status as to an individual who was employed as a seaman, but was injured while temporarily assigned to a newly constructed dredge being prepared for use by his employer. Crafton v. Tennessee Valley Sand & Gravel Company, 408 F.2d 1096 (5th Cir.1969), writ denied, 396 U.S. 827, 90 S.Ct. 73, 24 L.Ed.2d 78 (1969), and in a case which involved a worker normally assigned to a submersible drilling barge, the court held that despite temporary reassignment to a fixed platform to replace a vacationing foreman, the worker retained Jones Act status. Higginbotham v. Mobil Oil Corporation, 545 F.2d 422 (5th Cir.1977), reversed on other grounds, 436 U.S. 618, 98 S.Ct. 2010, 56 L.Ed.2d 581 (1978).

In this instance, there is no question that Seymour was originally hired by and worked for Transocean as a seaman as defined by the Jones Act. Appellant argues that as a result of Seymour’s injury on board the motor vessel and his temporary reassignment to shore work, Seymour lost his status as a Jones Act seaman. However, at the time of the second injury Seymour was still employed by Transocean, he had been away from the vessel to which he was customarily assigned for a period of only ten days, and he was expected to resume his duties as deckhand aboard the vessel as soon as he was physically able. Following the reasoning of the above cited eases, we find that nothing which occurred subsequent to Seymour’s employment by Transocean served to change his status from that of seaman.

Finally, appellant argues that absent any previous finding of seaman status, Seymour is free to elect his remedy and to sue under either the Jones Act or the Louisiana Workmen’s Compensation Act. Appellant implies that it is his prerogative to label his status and therefore to elect his remedy. This is not the case. It is the determination of an individual’s status by the court that decides the remedy that is available to him. A determination that an individual is a seaman requires him to seek redress under the Jones Act. Apperson v. Universal Services, Inc., 153 So.2d 81 (La. App. 1st Cir., 1963); Bearden v. Leon C. Braud Towing Co., Inc., 365 So.2d 1192 (La. App. 3rd Cir.1978); writ denied 366 So.2d 915 (La.1979). Therefore, the court’s finding that Seymour was a Jones Act seaman bars his recovery under the Louisiana Workmen’s Compensation Act.

Accordingly, the district court’s granting of defendant’s motion for summary judgment is affirmed.

Costs are to be paid by the plaintiff-appellant.

AFFIRMED.


text:
    G.D. LANDRY d/b/a G.D. Landry Distributors v. STATE of Louisiana Through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 15066.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.
    Writ Denied Dec. 10,1982.
    Max Labranche, Baton Rouge, for plaintiff-appellant G.D. Landry d/b/a G.D. Landry Distributors.
    Sharon F. Lyles, Executive Asst. Gen. Counsel, Baton Rouge, for defendant-appel-lee State of La. through Dept, of Transp. and Development.
    Before COVINGTON, LEAR and LANIER, JJ.
   COVINGTON, Judge.

This is an appeal from a judgment on a rule for mandamus, recalling the mandamus and dismissing the petition for mandamus at plaintiff’s costs. We affirm.

Plaintiff, G.D. Landry, d/b/a Landry Distributors, sued the State of Louisiana through the Department of Transportation and Development, seeking, inter alia, to mandamus Paul Hardy, Secretary of DOTD, to issue Landry a purchase order in the amount of $28,716.75 for items, quantities, and prices allegedly deleted from the plaintiff’s sealed bid for certain tire repair materials. The District Court held a hearing on the rule for mandamus, and for oral reasons assigned, recalled the writ of mandamus and dismissed the petition for mandamus.

This matter arises out of an invitation for bids for the sale of tire repair materials to DOTD. Only one bid was received by DOTD, the bid of Landry Distributors in the amount of $36,225.50. After the bid was opened on April 1, 1980, it was taken under advisement. DOTD decided that the sole bid was too high and that it could get along with less quantities of the materials. A few days after the bid opening, DOTD advised Landry of its decision, and the parties made an arrangement whereby DOTD would purchase a reduced quantity of the materials at the quoted unit price, in a total amount of $7,508.75. Thereafter, Landry shipped the materials purchased, which were received, accepted and paid for by DOTD.

About one year later, plaintiff instituted this suit, initially for damages for the bid price and for breach of contract, and also demanding specific performance of the alleged contract. Later, Landry amended its petition to seek a writ of mandamus.

We agree with the lower court that mandamus is not an available remedy to the plaintiff in the instant case. Mandamus, according to LSA-C.C.P. art. 3861 (in its pertinent application), is a writ directing a public officer to perform the duties set forth in LSA-C.C.P. art. 3863. The prescribed duties are those that are purely ministerial. See Official Comments under LSA-C.C.P. art. 3863. It is settled that mandamus will lie to compel performance only when no element of discretion is left to the public officer. Smith v. City of Alexandria, 300 So.2d 561 (La.App. 3 Cir.1974), writs denied, 303 So.2d 186, 187 (La.1974).

Appellant cites LSA-R.S. 48:205 as requiring DOTD through its secretary to issue to Landry the requested purchase order because, appellant contends, the statute obliges the department to either award a purchase order (contract) to the lowest responsible bidder, or reject all bids if no satisfactory bid has been received.

In construing this statute, the trial judge observed:

“The wording of La.R.S. 48:205 is clear. The Court can only find that the Secretary of the Department of Transportation (DOTD) is vested with the authority, to be exercised at his discretion, to act in the ways enumerated. This Court cannot order the Secretary of the Department of Transportation to exercise his discretion in such a manner as he may not see fit.”

The writ of mandamus is never granted in doubtful cases. This writ issues only where there is a clear and specific legal right to be enforced, or a duty which ought to be and can be performed. See State ex rel. Hutton v. City of Baton Rouge, 217 La. 857, 47 So.2d 665 (1950).

Courts have no power to require the acceptance of a bid; a public officer may reject any and all bids. To require an officer or agency to accept a bid and enter into a contract simply because it has advertised for bids would destroy the ability to achieve a fair price within the budgeted amount of the project or item, and violative of the purpose of the public contracts law: to protect taxpayers against contracts of public officers entered into through favoritism or at exorbitant prices. See D.J. Talley & Son, Inc. v. City of New Orleans, 303 So.2d 195 (La.App. 4 Cir.1974). We find that the actions of DOTD, upon finding that Landry’s bid (the only bid received) was too high, constituted a rejection of all bids. Thus, we hold that the writ of mandamus was properly denied by the District Court. The judgment is affirmed at appellant’s costs.

AFFIRMED.

      . LSA-R.S. 48:205 provides:
      “Where the purchase exceeds one thousand dollars, the department, except as otherwise provided in this Chapter, shall give reasonable notice through the chief purchasing agent by advertising and by written notice mailed to persons which furnish the class of commodities involved.
      “Such purchases shall, except as otherwise provided in this Chapter, be made only on award to the lowest responsible bidder in response to requests for bids published in the state. Requests for bids shall be published not less than ten days prior to the date set for opening the bids. The published advertisement and the specifications shall fix the exact place and time for presenting and opening of the bids. The presenting, opening, and reading of the bids shall be publicly performed on that day. The practice of dividing proposed or needed purchases into separate installments of less than one thousand dollars each for the purpose of evading this provision is expressly prohibited.
      “If, in the judgment of the secretary, no satisfactory bid has been received in any case, he may reject all bids. In such case, he shall advertise for new bids as provided in this Section. ■ Until a satisfactory contract is awarded, he may authorize the purchasing agent to make such open market purchases of the commodities involved as are urgently required to meet the requirements for not more than thirty days.”

      . We have considered the district court case relied upon by appellant, Laccassagne Ship Supplies, Inc. v. David Treen, et at, Suit No. 241,783 on the docket of the 19th Judicial District Court, decided December 10, 1980, and find it factually distinguishable.