text:
    T. J. IVY, Sr., Plaintiff-Appellee, v. AMERICAN ROAD INSURANCE CO., Defendant-Appellant.
    No. 8161.
    Court of Appeal of Louisiana, Third Circuit.
    April 15, 1981.
    Writ Granted May 18, 1981.

      William P. Polk, Alexandria, for defendant-appellant.
    Davis & Simmons, Kenneth N. Simmons, Many, for plaintiff-appellee.
    Before DOMENGEAUX, CUTRER and DOUCET, JJ.
   CUTRER, Judge.

Plaintiff, T. J. Ivy, Sr., was the owner of a piece of heavy equipment used in the logging industry known as a log hog tractor or a log skidder (skidder). The skidder was destroyed by fire on April 9,1980 and plaintiff brought suit against defendant, American Road Insurance Company (American) for recovery of the fire loss. American denied coverage.

The trial court ruled that the American policy was in effect at the time of the loss and awarded $9,000.00 plus attorney’s fees. American appealed. The plaintiff answered the appeal seeking an increase in the award, an increase in attorney’s fees and damages for a frivolous appeal. We reverse.

The facts are not in dispute:

Plaintiff purchased the equipment on April 9, 1977. An installment note and chattel mortgage was executed in favor of Ford Motor Credit Company to finance the purchase price. The installments were payable at the rate of $212.42 per month for 36 months with the final installment being due on April 17, 1980.

Pursuant to his usual practice, plaintiff issued a check for the final installment, which check was dated April 3, 1980. The check was mailed to Ford Motor Credit at its Houston, Texas, office. The Federal Reserve Bank in Dallas, Texas, endorsed the check on behalf of Ford Motor Credit on April 7,1980. The check, which was drawn on the City Bank and Trust Company of Natchitoches, Louisiana, was received and honored by that bank on April 10, 1980.

We recapitulate the sequence of events as follows:

April 3, 1980 - Date of check and mailing to Ford Motor Credit.
April 7, 1980 - Ford Motor Credit received the check by this date.
April 9, 1980 - Fire loss occurred.
April 10, 1980 - Check honored and paid by the Natchitoches Bank.

Defendant’s policy contained a provision that the policy would terminate

“... as of the time the installment sales contract is fully paid and discharged. ”

The issue presented on appeal is upon what date was the installment sales contract “fully paid and discharged.” To resolve the issue we must answer the question of whether the obligation was discharged on April 7, 1980 (the date that Ford Motor Credit received the check) or April 10, 1980 (the date the Natchitoches Bank honored the check).

The trial court, in finding coverage, held:

“.. . a debt payable by check is not paid until the bank upon which the check is drawn actually receives and honors the check.”

we find that the trial court erred in this conclusion. The trial court failed to give consideration to the retroactive, effect of the payment by the Natchitoches Bank upon the underlying obligation for which the check was given.

The law is well established that a check is a conditional payment and once the check has made its commercial cycle back to the drawee bank where it is finally accepted and paid, such payment relates back to the time the check was delivered to the payee (creditor).

In the early case of Langridge v. Dauenhauer, 120 La. 450, 45 So. 387 (1908), the court was faced with the issue of whether a candidate for office had paid his qualification fee timely. A check was given for the qualification fee at the time the candidate filed his qualification papers, October 11, 1907. The check was processed and paid on October 25, 1907. The law required that payment of the qualification fee must be made at the time the candidate filed for qualification (October 11, 1907). The contention was that such payment was not made until the check was paid by the drawee bank on October 25, 1907.

In resolving this issue the court held as follows:

“ ‘ When the check is, in fact, paid, upon presentation,’ say the authorities, ‘the payment relates back, so far as regards the extinguishment of the indebtedness, to the time when the check was given.’ 22 A & E Enc. of Law (2d Ed.) 573, and authorities there cited.” (Emphasis ours.)

This reasoning has been consistently followed by the courts. See Wright v. Aetna Life & Cas. Co., 360 So.2d 235 (La.App. 1st Cir. 1978); Seliga v. American Mutual Liability Insurance Co., 174 So.2d 878 (La.App. 4th Cir. 1965); Richard v. Blair, 20 So.2d 577 (La.App. 1st Cir. 1945). Other jurisdictions follow this rule.

This court in the case of Grimes, Austin & Stark, Inc. v. L. Stark, Inc., 347 So.2d 908, 909 (La.App. 3rd Cir. 1977), held as follows:

“In the sub-lease contract, there was no provision as to the manner in which rent was to be paid. Thus, the receipt of the check by plaintiff was a conditional payment of rent. Seliga v. American Mutual Liability Ins. Co.. 174 So.2d 878 (La.App. 4th Cir., 1965). We quote from Seliga:
‘... And in the absence of a specific agreement to the contrary, a check or draft is a conditional payment; when the instrument is honored on presentation, it constitutes payment as of the date it was received. Ray v. Canal Bank & Trust Co.. 186 La. 547, 173 So. 101; Langridge v. Dauenhauer. 120 La. 450, 45 So. 387; Mancuso v. Equitable Life Assurance Soc. of U. S., La.App, 151 So.2d 511.

The purpose of this established jurisprudential rule is both logical and apparent. It is commonplace in today’s highly commercialized society to discharge obligations by the use of checks. Many obligations require that payments be made timely or at certain times. Examples are installment notes, insurance premiums, rental payments under lease agreements and many others. The rule, that payments for the discharge of such an obligation by check occurs at the time the check is received, even though it may be honored by the drawee bank at a later date, protects the debtor from such claims as possible additional interest, penalties or breach of contract for untimely payment. The rule is designed to allow the debtor to effectuate timely payment by check. If we ruled otherwise it would make the timeliness of payment depend upon the actions of the creditor. Thus a debtor who paid by check would not be assured that his payment was timely even though the check was delivered timely.

In this case, unfortunately, the effect of the rule deprives the debtor of insurance coverages. We must, however, maintain our long-standing rule and preserve the stability of contract obligations which are paid by check.

Plaintiff cites provisions of commercial laws which became effective January 1, 1975. Plaintiff cites LSA-R.S. 10:3-409, 10:3 — 410 and 10:4-213.

Sections 10:3-409 and 10:3-410 do not govern the effect of payment by check on an underlying obligation. These articles, as their titles reflect, pertain to the liability of a drawee bank for payment of a check. In summary, it provides that the drawee bank is not liable for payment of a cheek until it “accepts” same. “Acceptance” is defined in LSA-R.S. 10:3-410.

Section 10:4-213 relates to the circumstances under which a check is deemed to have been paid by the drawee bank. In the case at hand, the issue is not when the check is paid by the drawee bank, but we are concerned with the effect of such payment upon the underlying obligation or indebtedness, for which the check was delivered to the creditor.

It is interesting to note that the Uniform Commercial Code, from which our Commercial Laws emanated, contained a section dealing with the specific subject matter that we are concerned with herein. The title to that article reads “Effect of Instrument on Obligation for which it was given.” A strong argument for plaintiff’s position may have been made if that section of the Uniform Commercial Code had been incorporated into Louisiana’s Commercial Laws, but that section was specifically omitted from our code. This omission is specifically referred to in our code.

The comment explaining the omission states that LSA-R.S. 10:3-802 was deleted because it “tends to conflict with Louisiana law.” This section, which dealt specifically with the effect of instruments on underlying obligations for which it was given, was deleted from our law, and since our 1975 commercial laws contain no other provision dealing with this subject matter, the longstanding line of jurisprudence, heretofore discussed, is effective and applicable.

We conclude that the installment contract was fully paid and discharged on April 7,1980, the date by which Ford Motor Credit had received the check. Since the fire occurred two days later, no coverage existed at the time of the loss.

For the reasons set forth, the judgment appealed from is therefore reversed and plaintiff’s suit is dismissed. Plaintiff-appel-lee is to pay costs of both the trial and this appeal.

REVERSED AND RENDERED.

      . In Pearson Grain Company v. Plains Trucking Company, Inc., 494 S.W.2d 639 (Texas Court of Civil Appeals 1973), the court held as follows:
      “It is settled law in Texas that while mere delivery of a check does not operate to discharge a debt in the absence of an agreement to that effect, payment by the check becomes absolute when the check is paid in due course and relates to the delivery date of the check. Muldrow v. Texas Frozen Foods, 157 Tex. 39, 229 S.W.2d 275 (1957).”
      See also Lakeway Co. v. Bravo, 576 S.W.2d 926 (Texas Court of Civil Appeals 1979); Flint v. United States, 237 F.Supp. 551 (D.Idaho 1964).

      . § 3 409: Draft not an assignment.
      (1) A check or other draft does not of itself operate as an assignment of any funds in the hands of the drawee available for its payment, and the drawee is not liable on the instrument until he accepts it.
      (2) Nothing in this Section shall affect any liability in contract, tort or otherwise arising from any letter of credit or other obligation or representation which is not an acceptance. Added by Acts 1974, No. 92, § 1, eff. Jan. 1, 1975.
      § 3 410: Definition and operation of acceptance.

        (1) Acceptance is the drawee’s signed engagement to honor the draft as presented. It must be written on the draft, and may consist of his signature alone. It becomes operative when completed by delivery or notification.
      (2) A draft may be accepted although it has not been signed by the drawer or is otherwise incomplete or is overdue or has been dishonored.
      (3) Where the draft is payable at a fixed period after sight and the acceptor fails to date his acceptance the holder may complete it by supplying a date in good faith. Added by Acts 1974, No. 92 § I, eff. Jan. 1, 1975.
      § 4-213: Final payment of item by payor bank; when provisional debits and credits become final; when certain credits become available for withdrawal.
      (1)An item is finally paid by a payor bank when the bank has done any of the following, which ever happens first:
      (a) paid the item in cash; or
      (b) settled for the item without reserving a right to revoke the settlement and without having such right under statute, clearing house rule or agreement; or
      (2)(c) completed the process of posting the item to the indicated account of the drawer, maker or other person to be charged therewith; or
      (d) made a provisional settlement for the item and failed to revoke the settlement in the time and manner permitted by statute, clearing house rule or agreement.
      Upon a final payment under subparagraphs (b), (c) or (d) the payor bank shall be accountable for the amount of the item....

      . (1) Unless otherwise agreed where an instrument is taken for an underlying obligation
      (a) the obligation is pro tanto discharged if a bank is a drawer, maker or acceptor of the instrument and there is no recourse on the instrument against the underlying obligor; or
      (3)(b) in any other case the obligation is suspended pro tanto until the instrument is due or if it is payable on demand until its presentment. If the instrument is dishonored action may be maintained on either the instrument or the obligation; discharge of the underlying obligor on the instrument also discharges him on the obligation.
      (2) The taking in good faith of a check which is not postdated does not of itself so extend the time on the original obligation as to discharge a surety.


source: Caselaw Access Project

author: CUTRER, Judge.

license: Public Domain

text:
    Ruth CHENNAULT, Plaintiff-Appellant, v. Isaac DUPREE et al., Defendants-Appellees.
    No. 8164.
    Court of Appeal of Louisiana, Third Circuit.
    April 15, 1981.
    Chris J. Roy, Alexandria, for plaintiff-appellant.
    Whitehead & McCoy, Kenneth D. McCoy, Brittain & Williams, Jack 0. Brittain, Watson, Murchison, Crews, Arthur & Corkern, R. Raymond Arthur and William P. Crews, Jr., Natchitoches, for defendants-appellees.
    Before DOMENGEAUX, CUTRER and DOUCET, JJ.
   CUTRER, Judge.

Plaintiff, Ruth Chennault, filed suit for damages she incurred as a result of an automobile accident which occurred on August 23, 1973. Plaintiff was a passenger in the car operated by Nolan Conde. The Conde vehicle was involved in an accident with a pickup truck driven by Gary Dupree. The plaintiff filed suit on August 22, 1974, naming as defendants Nolan Conde; Gary Dupree; his father, Isaac Dupree; Louisiana Farm Bureau Mutual Insurance Company; ABC Insurance Company and XYZ Insurance Company.

On November 2, 1978, by supplemental and amended petition, plaintiff named Employers Commercial Union Insurance Company as defendant, asserting that this insurer had issued a liability policy covering the Conde vehicle, which policy was in effect at the time of the accident on August 23, 1973.

On January 30, 1980, American Employers filed a pleading entitled “Exceptions and Petition for Declaratory Judgment” contending that plaintiff’s suit should be dismissed since Nolan Conde violated the requirements of the policy by failing to give American Employers timely notice of the accident as required by the policy. American Employers contends it did not have notice until the amended petition was filed on November 2, 1978, five years after the accident.

From a declaratory judgment dismissing plaintiff’s suit against American Employers, plaintiff appeals. We reverse.

The issue presented on appeal is whether the alleged violations of the policy requirements by the insured Nolan Conde would deprive plaintiff of her cause of action against Conde’s insurer, American Employers.

Plaintiff brought suit against American Employers under the direct action statute, LSA-R.S. 22:655 (formerly Act 55 of 1930). The fact, that Nolan Conde did not give timely notice of the accident to American Employers, as required by the policy, does not deprive the victim, plaintiff, of her direct action against American Employers for damages she incurred through the negligence of American Employers’ insured, Nolan Conde. This principle is well settled in our jurisprudence. The effect of the direct action statute was set forth in the case of West v. Monroe Bakery, 217 La. 189, 46 So.2d 122 (1950). The Supreme Court held as follows:

“If there should be any doubt as to the effect of Act 55 of 1930, it should for all times be put at rest by the opinion written by Mr. Justice Rogers in the case of Davies v. Consolidated Underwriters, 1942, 199 La. 459, 6 So.2d 351, which was not concerned with delayed notice of an accidental occurrence, but where the Court set out the general objects, purposes and effect of Act 55 of 1930 as to third persons, not parties to the policy contract, 199 La. 459, 476, 6 So.2d 351, 357: — ‘That statute (Act No. 55 of 1930) gives the injured party an immediate right of direct action against the insurer of the party responsible for the injuries. The statute expresses the public policy of this State that an insurance policy against liability is not issued primarily for the protection of the insured but for the protection of the public. Frequently the insured is financially irresponsible and the only recourse of a person injured by the negligence of the insured is against his insurance carrier. But rarely has the injured party knowledge as to who may be the insurer of the party responsible for his injuries. It is therefore not within his power to sive a notice as required by the volicv and the enforcement of a policy provision requiring notice to be given by the insured automatically and without any action on his part deprives him of the right of action granted by law. It is not desirable that he should be divested of such action, and that result should not obtain except in a very clear case. This is not such a case. By maintaining plaintiffs’ action, the defendant company is not deprived of any substantial right. Its liability remains contingent and is dependent upon proof of the negligence of Stahl, the driver of the automobile.’” (Emphasis by the writer.)

The above jurisprudential policy was legislatively adopted by an amendment to the direct action statute, which amendment added a paragraph to LSA-R.S. 22:655 which reads as follows:

“It is also the intent of this Section that all liability policies within their terms and limits are executed for the benefit of all injured persons, his or her survivors or heirs, to whom the insured is liable; and that it is the purpose of all liability policies to give protection and coverage to all insureds, whether they are named insured or additional insureds under the omnibus clause, for any legal liability said insured may have as or for a tort-feasor within the terms and limits of said policy.”

Por a recent discussion of the policy of the direct action statute, see Holtzclaw v. Falco, Inc., 355 So.2d 1279 (La.1978).

Applying these principles to the circumstances of the case at hand, any violation of American Employers’ policy by its insured, Nolan Conde, wherein Conde failed to give timely notice of the accident, cannot be raised as a defense to plaintiff’s right to proceed against American Employers under the direct action statute. For these reasons, the trial court judgment must be reversed.

Accordingly, for the reasons assigned, the declaratory judgment dismissing plaintiff’s suit is reversed and the case is remanded to the district court for further proceedings not inconsistent herewith. The costs of this appeal are taxed against American Employers Insurance Company. All other costs are to be determined upon final disposition of the case.

REVERSED AND REMANDED.

      . Louisiana Farm Bureau’s petition for declaratory judgment was later granted and this insurer was dismissed from the suit. This dismissal is not at issue on this appeal.

      . The amended petition named “Employers Commercial Union Insurance Company” as a defendant. This was apparently error as American Employers Insurance Company filed the responding pleadings. There is no issue made on appeal as to this discrepancy.


author: STOKER, Judge.

text:
    Brenda Gail COOPER, Plaintiff-Appellant, v. James William COOPER, Defendant-Appellee.
    No. 8168.
    Court of Appeal of Louisiana, Third Circuit.
    April 15, 1981.
    Sturgeon & Gore, John Sturgeon, Ferri-day, for plaintiff-appellant.
    Jimmie C. Peters, Jena, for defendant-ap-pellee.
    Before CULPEPPER, FORET, and STOKER, JJ.
   STOKER, Judge.

In this case the mother of two children was originally granted custody of them. The mother, now Brenda Gail Cooper Johnston, appeals from a judgment of court terminating her custody and awarding it to the father, James William Cooper. The parties were judicially separated by judgment of the Twenty-eighth Judicial District Court, Parish of LaSalle, Louisiana, on April 16, 1974. Brenda Gail Cooper was granted custody at that time and James William Cooper was ordered to pay child support. The parties were divorced by the same court on July 28, 1975. The matter came to this court in Cooper v. Cooper, 336 So.2d 928 (La.App. 3rd Cir. 1976). As a result of that appeal James William Cooper’s child support obligation became the sum of $210.00 per month for the two children.

The sole issue in this present appeal is whether the trial court applied a proper standard in changing custody of the children, terminating the mother’s custody of over five years and awarding it to the father. The trial judge stated that the basis for making the change was that he could more easily control the exercise of visitation rights. At that time Mr. Cooper resided within the court’s jurisdiction but Mrs. Johnston lived in Oklahoma with her present husband. Numerous collateral issues are raised on behalf of Mrs. Johnston which are not before us.

Relations between the parties have been acrimonious and there has been continual litigation concerning unpaid alimony and support and exercise of visitation rights. Both parties have remarried. On her part Mrs. Johnston has frustrated Mr. Cooper’s efforts to exercise his visitation rights. Mr. Cooper retaliated by not remitting support payments due. The record does not establish any equities in favor of either party insofar as the personal character of each may be concerned. Also, the welfare of the two boys would not be affected adversely or enhanced by being with one parent as opposed to the other, absent considerations related to the place of residence of the two parents.

All of the parties have a center of interest in LaSalle Parish, Louisiana. The children have spent most of their lives in Jena in LaSalle Parish. James Todd Cooper was born October 3, 1965, and William Brett Cooper was born on August 7, 1968. In the early years after the separation the two boys resided largely with Mrs. Johnston’s parents who live in Jena. They attended school there. Before Mrs. Johnston’s remarriage she appears to have lived in places other than Jena in order to obtain employment. For some time she lived in Natchez, Mississippi, or other nearby places, because she had a job there. Although the children were in Jena and Mr. Cooper lived in or near Jena he was not allowed any non-judicially ordered visitation privilege. Mrs. Johnston instructed her parents that Mr. Cooper was not to be allowed any visitation with the children he was not legally entitled to.

In late October, 1978, Mrs. Johnston married and moved to Memphis, Tennessee. At that time she took the two sons with her and they resided with her and her second husband thereafter. In 1979 Mrs. Johnston and her husband moved to Oklahoma. After the two boys were taken from Jena, Mrs. Johnston refused to give Mr. Cooper her address or let him know where his children resided. She maintained contact with him but furnished him with post office box addresses only. She did this with instructions that he could mail his support checks to that address.

Mr. Cooper made trips to both Tennessee and Oklahoma in order to pick up the children for scheduled visitation periods, but was unable to locate the Johnston family. In June of 1980 Mr. Cooper made a trip to Stillwell, Oklahoma, to pick up the children. The Johnston’s refused to give him their address before he left, but advised him to call when he arrived. When he arrived and called by telephone as instructed he received some sort of recorded response but the Johnstons never answered. Mr. Cooper enlisted the aid of the town marshal but neither he nor anyone else knew the John-stons. After a fruitless weekend searching for the Johnstons, Mr. Cooper was forced to return home.

Mr. Cooper sought the aid of the court (28th Judicial Court in LaSalle Parish) and received numerous protective orders. These orders proved ineffective. After the trial on Mr. Cooper’s petition for change of custody, at which the court also heard evidence in a rule by Mrs. Johnston seeking past due child support and a judgment holding Mr. Cooper in contempt, the trial court ruled from the bench. In pertinent part the ruling from the bench was as follows:

“I think the law of Louisiana is such that it recognizes regardless of whether a parent is financially supporting his child or not, that visitation is healthy for the child. I suppose that’s why visitation privileges are viewed as they are. Because they are healthy and in the best interest of the child.
“Throughout the long unfortunate history of this case, we have repeatedly looked for some sort of visitation scheme that would work. We have been absolutely one hundred percent foiled because Mrs. Cooper, Mrs. Johnson [sic] now, has simply failed to cooperate.
“I want to direct that Mr. Cooper pay into the Registry of the Court, within twenty days of today, all past due support.
“I change custody. I’m doing that for the reason that I think that visitation is healthy for the children. Mr. Cooper is here, and if he does not allow Mrs. Cooper visitation, I can reach him and I can enforce my order against him. One of the main reasons I have in changing custody is an attempt to enforce a pattern of visitation between these parents in a fashion where I can make the order workable. I’m influenced by the fact that Mrs. Cooper has moved as often as she has. I’m influenced by the fact that she slapped her child with a belt in the face because he indicated that he wanted to visit his father. I think that the children need to be in a situation and in the hands of a parent who will encourage the child to visit on a regular pattern in compliance with the Court Order. I will expect Mr. Cooper to do that.
“Mrs. Cooper will be entitled to all the visitation that Mr. Cooper was entitled to when he was under the previous order.”

The trial judge in his ruling recognized that the obligation of paying judicially ordered child support and the obligation to allow and not frustrate court-fixed visitation privileges are separate and distinct. His ruling and the formal judgment sought to enforce both. As appellant, Mrs. Johnston argues that the trial court cannot base a change in custody solely on what may be more practical and convenient for the court. She urges that legal means, such as contempt proceedings, are available if indeed such protection for Mr. Cooper is justified.

In approaching the complaint in this appeal we note that at the present time the sole criterion applicable to change of custody cases is the best interest of the child. Bordelon v. Bordelon, 390 So.2d 1325 (La. 1980). In Flournoy v. Flournoy, 392 So.2d 1097 (La.App. 3rd Cir. 1980), No. 7980 our docket, and Autrey v. Highbaugh, 395 So.2d 464 (La.App. 3rd Cir. 1981), No. 8050 our docket, we discussed the standard of appellate review of custody cases as affected by. the amendment of Article 157 of the Louisiana Civil Code and the opinion of the Louisiana Supreme Court in the Bordelon case. In Bordelon the Supreme Court stated:

“This Court has clearly stated that in child custody cases, the procedure for appellate review is to give great weight to the determination of the trial judge, and to overturn a determination only when there is a clear abuse of discretion. Fulco, supra; Cleeton v. Cleeton, 383 So.2d 1231 (La. 1980). This test is substantially similar to the rule applied by the appellate court, which prevents the upsetting of a trial court determination of fact unless it is ‘clearly wrong’. Arceneaux v. Domingue, 365 So.2d 1330 (La. 1979). Under these rules, a conclusion reached by a trial court derived from the facts is entitled to just as much weight as a conclusion that certain evidence establishes a fact.”

We recognize that the basic issue to be decided in this case goes beyond the mere matter of fact finding. However, we do note that the record amply supports the implied finding of the trial court that Mrs. Johnston has been uncooperative and has so affirmatively frustrated Mr. Cooper’s efforts to exercise his visitation rights that the court’s protective orders have had little practical effect. We also recognize that, despite the powers given to courts having jurisdiction over custody of children, a parent with custody who maintains a residence out-of-state, particularly at some distance, is in a position to set at naught almost any efforts of the home-state court to control its orders regarding visitation. Courts have ' found no empirical solutions to deal with such interstate domestic problems.

We take it that no citation of authority is required to establish that visitation with both parents as often as possible is in the best interest of the children of the broken marriage. It is our conclusion, as evidently it was the trial court’s, that the change of custody from Mrs. Johnston to Mr. Cooper will not affect their best interest insofar as concerns the particular parent with which they may live. However, as concerns all else the change would appear to be to their best interest. Jena, Louisiana, is a center of interest in the life and affairs of the boys in question. Most of their lives were lived there and they went to school there. Their maternal grandparents with whom they lived much of the time after the separation of their parents live there. It is Mrs. Johnston’s former home. In view of these factors we think the pragmatic reasons given by the trial court are valid.

In affirming the custody change we do not wish to lay down a rule or announce a policy that a trial court may make a custody change merely to facilitate the enforcement of orders in domestic relation cases. Here we find the facts so extraordinary that we are not prepared to hold that the trial court abused its discretion or was clearly wrong.

AFFIRMED.

      . In response to Mr. Cooper’s petition for change of custody filed on October 27, 1978, appellant filed an exception of no right and no cause of action on November 7, 1978. These exceptions were referred to the merits. Although the trial court’s judgment of September 5, 1980, granting the custody change does not mention these exceptions, we think the trial court impliedly overruled the exceptions. Mr. Cooper certainly had a right of action and the petition set forth a cause of action. Specifically, the appellee alleged that the children were neglected and that appellant left them in the care of their maternal grandparents while appellant resided out of state. Appellee alleged generally that it was in the best interest of the children to be in his custody. The evidence at least supported the general allegation.


author: SWIFT, Judge.

text:
    SECURITY TIMBER AND LAND COMPANY, Plaintiff-Appellee, v. Anthony D. REED and Reed, Inc., Defendants-Appellants.
    No. 8170.
    Court of Appeal of Louisiana, Third Circuit.
    April 15, 1981.

      Gist, Methvin, Hughes & Munsterman, Dorwan G. Vizzier, Alexandria, for defendants-appellants.
    John P. Navarre, Oakdale, for plaintiff-appellee.
    Before GUIDRY, SWIFT and LA-BORDE, JJ.
   SWIFT, Judge.

This is an appeal from a trial court judgment awarding plaintiff property damages sustained in a rear-end collision allegedly caused by defendants’ negligence.

The facts are relatively undisputed.

The accident occurred on May 23,1979, at about 3:15 p. m. on Louisiana 10 just east of Oakdale. A Ford pickup truck owned by Boise Southern Company and driven by Boise’s employee, Charles Fuselier, was proceeding eastward. Following the pickup truck was a Chevrolet tractor-truck pulling a low-boy trailer. This rig was owned by Security Timber and Land Company (Security) and driven by its employee, William H. Sampsel, in the course of his employment. Sampsel was following Fuselier to deliver a load of lumber to the latter’s home. Traveling behind both of these trucks was a car and a Ford butane tank truck owned by Reed, Inc. and driven by Anthony D. Reed.

As the trucks began to negotiate a curve in the highway Reed began to pass the automobile driven by Odlie Strother and the two preceding trucks in a no-passing zone. Fuselier observed this maneuver in his rear view mirror. He also saw an unidentified automobile approaching in the opposite lane of travel. Fearing that the butane truck would not have a sufficient length of time in which to pass his pickup and the trailer truck, Fuselier removed his foot from the accelerator and his velocity decreased from about 40 to approximately 25 miles per hour when he was struck in the rear by Security’s truck. He testified that he was fixing to apply his brakes slowly and pull over to the right shoulder to avoid an accident but he did not recall actually putting on the brakes then.

In the meantime the approaching vehicle pulled halfway into the ditch on his right and the butane truck passed between the pickup and the automobile and continued on Highway 10.

Mr. Sampsel was thought to be in Alaska and did not testify. However, he told Mr. Fuselier after the accident “that he was occupied looking” at the truck trying to pass and was “worried” as he didn’t know what was going to happen. Fuselier said Sampsel had apparently seen the oncoming car also.

The investigating police officer testified the brakes on the trailer had not been hooked up and Sampsel told him that when he put on the brakes of his tractor the “load pushed him down the road” to where he hit the Fuselier truck. Sampsel’s unit traveled approximately 222 feet from the point of impact before stopping.

Security filed this suit against Reed, Inc. and its driver for damages to its truck and lumber. The principal defense is that plaintiff’s driver was contributorily negligent.

After trial on the merits the judge ruled for the plaintiff and opined that a sudden emergency arose when Reed attempted the illegal passing maneuver which excused Sampsel’s failure to react because the dangerous situation diverted his attention. The trial judge stated:

“Under these circumstances a momentary lapse of attention is possible. It is also significant that Fuselier did not apply his brakes or give any signal that he was slowing down suddenly. The court does not believe that the failure to hook up the trailer brakes was the cause of the accident.”

Defendants contend that the trial court was manifestly in error in applying the rule of sudden emergency to the facts of this case and that recovery is barred by the contributory negligence of Sampsel and also Security. We agree.

The doctrine of sudden emergency has been stated by our supreme court in Hickman v. Southern Pacific Transport Company, 262 La. 102, 262 So.2d 385 (La.1972), as follows:

“One who suddenly finds himself in a position of imminent peril, without sufficient time to consider and weigh all the circumstances or best means that may be adopted to avoid an impending danger, is not guilty of negligence if he fails to adopt what subsequently and upon reflection may appear to have been a better method, unless the emergency in which he finds himself is brought about by his own negligence.”

In Dick v. Phillips, 253 La. 366, 218 So.2d 299, 302 (La.1969) the court said:

“Although Phillips invokes the doctrine of sudden emergency to exculpate himself from a charge of negligence, the doctrine is not available to him. The rule of sudden emergency cannot be invoked by one who has brought that emergency on himself by his own wrong or who has not used due care to avoid it. The sudden emergency doctrine is applicable to the standard of conduct of a motorist after an emergency has arisen, it does not apply to lower the standard of care required of motorists before the emergency occurs. 2 Blashfield, Automobile Law and Practice § 102.28 (3rd ed. 1965). See also Noland v. Liberty Mutual Insurance Company, 232 La. 569, 94 So.2d 671 (1957).”

The doctrine is further qualified as follows:

“Parenthetically we note that the defense of sudden emergency is not available if the motorist fails to exercise the degree of care that a prudent person would use to extricate himself from the situation.”

Potts v. Hollier, 344 So.2d 70, 71 (La.App. 4 Cir. 1977).

Thus, while a sudden emergency will excuse the failure to exercise a choice that in light of after events might not have been the best and may otherwise have been negligent, the motorist must still use the care that a prudent person would to extricate himself from the situation. And, of course, the doctrine does not apply to an emergency brought about by the driver pleading same. Nor does it lower the standard of care required of motorists before the emergency occurs.

It is obvious that Mr. Reed was patently negligent in passing the preceding vehicles in a no-passing zone. However, it is equally clear that Mr. Sampsel was contributorily negligent unless a proper sudden emergency existed.

The primary duty imposed on a motorist in the safe operation of a vehicle is to keep a sharp lookout in the direction in which he is proceeding in order to discover the presence of a possible danger. Weber v. Phoenix Assurance Company of New York, 273 So.2d 30 (La.1973). And a motorist is presumed to have seen what he should have seen. Baumgartner v. State Farm Mutual Automobile Insurance Company, 356 So.2d 400 (La.1978). Also, a motorist is presumed to have been negligent if he collides with the rear end of a vehicle preceding his vehicle. Jones v. Meinke, 357 So.2d 838 (La.App. 4 Cir. 1978); Tidwell v. Ocean Systems, Inc., 356 So.2d 466 (La.App. 1 Cir. 1977).

La.R.S. 32:341 requires a truck and trailer, as was driven by Sampsel, to possess working, separate brake systems. A violation thereof not only gives rise to a presumption of negligence, but the owner and operator of the vehicle with faulty brakes are strictly liable to a party whose automobile is rear-ended thereby. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

The Fuselier vehicle was in plain view ahead of Sampsel. It was not stopped suddenly, but instead its speed was simply reduced from about 40 miles per hour to approximately 25 miles per hour at impact without application of brakes by the driver releasing the accelerator. The only excuse appearing in the record for Sampsel’s failure to observe the reduction in speed of the vehicle ahead of him and attempt to avoid the accident was that he was looking at the passing Reed truck and the approaching automobile and paying no attention whatsoever to the truck he was following.

The same explanation was rejected by the Court of Appeal, Fourth Circuit, in regard to a rear-end collision in Seals v. Allstate Ins. Co., 370 So.2d 691 (La.App. 4 Cir. 1979), writ refused, 373 So.2d 531 (La.1979). Said the court:

“Defendant Allstate cites the sudden emergency doctrine as a basis to absolve its insured of liability. However, we do not think that doctrine applies here. Hendrichson saw the phantom car about three or four car lengths before he noticed it pulling out in front of him, at which time he changed lanes because he felt he could not stop before hitting the phantom car. He testified there was no obstruction blocking his view of Seals’ car, but that he did not notice Seals’ brake lights because he was concentrating on the phantom car in the right lane. Under the circumstances, although we sympathize with his plight, we do not feel he exercised the degree of care required of a prudent motorist.” (Emphasis added.)

The emergency did not occur suddenly in this instance. Instead, we are convinced that if Sampsel had been maintaining a proper lookout and his unit was equipped with adequate brakes there was sufficient time for him to have reduced his speed and avoided this accident after he became aware of the dangerous passing movement of the Reed vehicle. His failure to do so falls short of the degree of care that a reasonable and prudent person would exercise to extricate himself from the situation under the circumstances. Consequently, his contributory negligence in these respects is not expunged by the sudden emergency doctrine.

Furthermore, both Sampsel’s negligence and that of Security in failing to equip the trailer with adequate brakes occurred long before any emergency arose and undoubtedly contributed to the accident. It is obvious to us that the speed of a tractor-trailer unit equipped with proper brakes and following another vehicle at a proper distance could be reduced sufficiently by normal operation to avoid a collision with the preceding vehicle when the latter’s speed was merely reduced by its driver releasing the accelerator without applying the brakes. As pointed out above, a sudden emergency does not lower the standard of care required of motorists before it arises. Nor does it relieve them of the consequences of such antecedent negligence.

For the foregoing reasons, the judgment of the district court is reversed and judgment is rendered herein in favor of the defendants and against the plaintiff dismissing the latter’s suit. The costs of court, including this appeal, are taxed to plaintiff-appellee.

REVERSED AND RENDERED.


author: GUIDRY, Judge.

text:
    Doyle SMITH, Husband of Mrs. Doyle Smith, Plaintiff-Appellee, v. Willie WHITE, Defendant-Appellant.
    No. 8176.
    Court of Appeal of Louisiana, Third Circuit.
    April 15, 1981.

      J. P. Mauffray, Jr., Jena, for defendant-appellant.
    Ford & Nugent, Howard N. Nugent, Jr., Alexandria, for plaintiff-appellee.
    Before GUIDRY, SWIFT and LA-BORDE, JJ.
   GUIDRY, Judge.

Original plaintiffs, Mr. and Mrs. Doyle Smith, instituted this suit against defendant, Willie Allen White, seeking to recover the sum of $6,234.00 plus legal interest thereon from date of judicial demand, until paid, and attorney’s fees of twenty-five per cent (25%) of the total amount due. Defendant filed dilatory and peremptory exceptions to plaintiffs’ suit alleging that Mrs. Smith lacked procedural capacity and/or had no right or no cause of action. The trial court sustained defendant’s exceptions on the basis that the alleged debt sued upon was owed to the community of acquets and gains existing between Mr. and Mrs. Smith and ordered Mrs. Smith dismissed from the suit. Subsequently, defendant answered plaintiffs’ petition, and, in substance, averred that Mr. and Mrs. Smith fraudulently induced him to execute the promissory note at issue and but for their misleading representations, defendant would not have executed the subject note. In addition to his answering plaintiff’s petition, defendant filed a reconventional demand seeking cancellation of a gravel lease entered into by the parties urging that plaintiff, defendant-in-reconvention, failed to operate such lease as a reasonably prudent operator. Further, defendant, plaintiff-in-reconvention, contends that the Smiths entered upon land, not subject to the gravel lease, and destroyed his valuable fruit orchard resulting in damages of $25,000.00

The trial court rendered judgment on the principal demand in favor of the plaintiff, Doyle Smith, in the sum of $6,234.00 with legal interest from November 16, 1978 and twenty-five per cent (25%) attorney’s fees. The trial court also rendered judgment in favor of reconvenor ordering cancellation of the gravel lease, however, refused to rule on defendant’s reconventional demand insofar as it pertained to the destruction of his fruit orchard. From that judgment, defendant, plaintiff-in-reconvention, prosecutes this appeal. Plaintiff, defendant-in-reconvention, neither appealed nor filed an answer to the appeal.

The facts of the instant case are the subject of some dispute. The record discloses that on April 4, 1978, defendant, Willie Allen White, executed a promissory note in the sum of $6,234.00 to the order of LaSalle State Bank which note Mrs. Doyle Smith signed as an accommodation maker. Defendant White defaulted on the loan and thereafter Mrs. Smith, in her capacity as accommodation maker, paid the sum due upon demand by the bank. Upon payment of the note the bank endorsed said note “without recourse” and delivered same to the Smiths.

Defendant White contends that he executed the note.in order to secure the funds necessary to settle community property affairs between himself and his estranged spouse. White testified that the Smiths sought to obtain a gravel lease on his property which he could not grant until such time as the community existing between himself and his former spouse was settled. According to the defendant, Mrs. Smith signed the subject promissory note as an accommodation party to expedite defendant’s community property settlement and thus, obtain the desired gravel lease. Allegedly, Mrs. Smith assured defendant that royalties resulting from the gravel lease would supply the funds to pay the note. The Smiths deny that such assurances were ever made and aver that Mrs. Smith signed the note simply to help a neighbor in need.

As previously noted, defendant in his re-conventional demand contends that the Smiths breached their obligation to operate the gravel lease as reasonably prudent operators. Also, defendant avers that plaintiff destroyed a fruit orchard located on land adjacent to that upon which the subject lease was granted resulting in damages of $25,000.00. The majority of testimony received at trial pertained to these allegations, however, the trial court, although ordering the cancellation of the gravel lease, dismissed defendant’s reconventional demand for damages as of non-suit, concluding that such demand should be addressed in a separate suit.

The following issues are presented on appeal:

(1)Did the trial court err in failing to rule on defendant’s reconventional demand?
(2) Is plaintiff Smith entitled to sue to recover the sum paid in satisfaction of a promissory note executed by his wife as an accommodation maker, which note was paid with community funds?
(3) Was the award of attorney’s fees in the instant suit proper?
(4) Did the trial court err in assessing all costs of these proceedings to the defendant?

THE RECONVENTIONAL DEMAND

Defendant contends that the trial court erred in dismissing his reconventional demand for damages. We agree.

The defendant in his answer reconvened requesting that the gravel lease granted to the plaintiffs be cancelled and that he be awarded $25,000.00 in damages resulting from the destruction by plaintiffs of his fruit orchard located on land adjacent to the lands subject to the gravel lease. The trial court, in its judgment, ordered that the lease be cancelled (assigning no reasons for its decision), however, refused to rule on the remainder of defendant’s demand stating that such demand should be resolved in a separate suit.

Louisiana Code of Civil Procedure Article 1061 provides as follows:

“The defendant in the principal action may assert in a reconventional demand any action which he may have against the plaintiff in the principal action, even if these two parties are domiciled in the same parish and regardless of connexity between the principal and reconventional demands."

The purpose of this statute is to prevent a multiplicity of suits as well as to encourage the settlement of all disputes between the parties. See Official Revision Comments following LSA-C.C.P. Article 1061; Cox v. Cashio, 96 So.2d 872 (La.App. 1st Cir. 1957).

We note that LSA-C.C.P. Article 1038 provides that the trial court may order the principal and incidental actions tried separately and still retain jurisdiction after the first action is adjudicated. However, in the instant suit, the trial court did not order a separate trial on defendant’s reconventional demand as provided for in the Louisiana Code of Civil Procedure. Instead, the trial judge proceeded with the trial of both the principal and incidental actions and ultimately rendered judgment cancelling the gravel lease but dismissing plaintiff-in-re-convention’s demand for damages as of non-suit.

Defendant properly cumulated his two actions in his reconventional demand, specifically, his action for cancellation of the gravel lease and his prayer for damages. Both actions were within the jurisdiction of the trial court, brought in the proper venue, and employed the same form of procedure. LSA-C.C.P. Article 462. Our court in McDonald v. Book, 215 So.2d 394 (La.App. 3rd Cir. 1968) noted that “Louisiana’s traditional procedural policy has disfavored the piecemeal trial of cases except where permitted by statute.” Thus, we conclude that it was error on the part of the trial court to order cancellation of the gravel lease yet refuse to render judgment on defendant’s claim for damages.

After consideration of relevant statutory authority, we discern no reason why defendant’s reconventional demand should not have been resolved in its entirety. To resolve all claims by the parties in one proceeding is both procedurally appropriate and in the interest of judicial efficiency. We note that in McDonald, supra, the court concluded that where an appeal is taken from a judgment which did not dispose of the entire case, merit-determination is not reviewed but the judgment is set aside and proceedings remanded for determination of all issues. For the above reasons, we determine that the judgment of the trial court partially dismissing the reconventional demand must be reversed and such demand, in its entirety, should be remanded to the trial court for decision.

IS PLAINTIFF, DOYLE SMITH, ENTITLED TO SUE TO RECOVER THE SUM PAID IN SATISFACTION OF THE PROMISSORY NOTE?

Defendant asserts that plaintiff, Doyle Smith, has no right of action to recover the sum paid in satisfaction of the promissory note executed by defendant. Defendant contends that the trial court dismissed Mrs. Smith from the instant suit after determining that she had no right of action, therefore, defendant alleges that plaintiff, Mrs. Smith’s husband, as transferee of the note, possesses no right of action.

The record reflects that Mrs. Smith paid the sum due on defendant’s promissory note with community funds. Subsequently, the LaSalle State Bank endorsed the subject note over to Mrs. Smith without recourse. The record discloses that defendant filed dilatory and peremptory exceptions of lack of procedural capacity and/or no right or no cause of action. The trial court sustained defendant’s exceptions without assigning reasons. Under the circumstances of the instant case, we assume that the trial court concluded that Mrs. Smith lacked procedural capacity to sue upon a debt due the community existing between she and her husband. The fact that the promissory note at issue was paid with community funds was uncontested at trial. Louisiana C.C.P. Article 686, prior to its amendment effective January 1, 1980, provided in pertinent part:

“The husband is the proper plaintiff, during the existence of the marital community, to sue to enforce a right of the community. .. ”

Thus, the trial court correctly dismissed Mrs. Smith from the instant case and permitted Mr. Smith, in his capacity as head and master of the community, to prosecute the suit on behalf of the community.

The right of the Smith community to sue to recover the amount paid in satisfaction of defendant’s debt emanates from Mrs. Smith’s status as an accommodation maker. La.R.S. 10:3-415 provides in pertinent part:

“(5) An accommodation party is not liable to the party accommodated, and if he pays the instrument has a right of recourse on the instrument against such party.”

The comments which follow Uniform Commercial Code Article 3-601, the source for La.R.S. 10:3-601, states:

"Under Section 3-415 (La.R.S. 10:3-415) on accommodation parties, an accommodation maker or acceptor, although he is primarily liable on the instrument in the sense that he is obligated to pay it without recourse upon another, has himself a right of recourse against the accommodated payee; and his reacquisition or discharge leaves the accommodation party liable to him.”

Therefore, it is clear that when Mrs. Smith, pursuant to her status as an accommodation maker, paid the note with community funds, the Smith community, under the cited authority, acquired a “right of recourse on the instrument” against the principal maker. As previously stated, Louisiana law at the time of suit provided that the husband was the proper party plaintiff to enforce debts owed to the community existing between he and his wife. The fact that the defendant’s debt was paid by the Smiths with community funds is uncontested. Thus, we discern no error on the part of the trial court in its judgment in favor of plaintiff and against defendant in the amount of $6,234.00.

ATTORNEY’S FEES

Appellant contends that the trial court erred in awarding attorney’s fees to the plaintiff.

It is well settled that attorney’s fees are assessable only when provided for by law or contract. Knox v. Brown, 325 So.2d 295 (La.App. 3rd Cir. 1976). Mrs. Smith signed the promissory note at issue as an accommodation maker. An examination of the note reveals no provision stipulating that the accommodation maker may collect attorney’s fees in connection with payment of the note. In McCardle v. Nagim, 61 So.2d 267 (La.App. Orleans 1952) the court determined that an action by an accommodation maker on a note against the maker is based upon an implied contract of reimbursement, therefore, the accommodation party is not entitled to recover attorney’s fees as if the action had been on the note. See also 24 Loyola Law Review 271. In addition, Louisiana jurisprudence has recognized that an accommodation party has the right only to collect that amount which has been paid. See Gleason v. Barrilleaux, 292 So.2d 804 (La.App. 1st Cir. 1974); Cook v. Crow, 194 So. 455 (La.App.2d Cir. 1939). Thus, we conclude that under the instant facts plaintiff Smith is not entitled to an award of attorney’s fees, but rather should receive only that amount paid in satisfaction of defendant’s debt with legal interest from November 16, 1978 until the note is paid.

COSTS

Finally, defendant contends that the trial court erred in taxing to him the cost of proceedings pertaining to defendant’s exceptions which resulted in the judgment dismissing Mrs. Smith as a party plaintiff. Defendant avers that the trial court specifically provided in its judgment on defendant’s exceptions that all costs relating to that portion of the proceedings should be taxed to plaintiff. A review of the record reveals that the trial judge in his signed judgment sustaining defendant’s dilatory and peremptory exceptions ordered that the costs of those proceedings be assessed to the plaintiff. However, the final judgment relating to the trial on the merits of the instant case decrees that all costs of the proceedings be assessed against the defendant. We are cognizant of the inconsistency of the two judgments, however, we conclude that the provisions of the final judgment must supercede the provisions of the judgment pertaining only to the exceptions. It is well settled that the trial court has great discretion in assessing costs and the reviewing court will not interfere absent a showing of abuse. Town of Kinder v. Beauregard Electric Co-op, Inc., 339 So.2d 891 (La.App. 3rd Cir. 1976); Bernstine v. City of Natchitoches, 335 So.2d 51 (La.App. 3rd Cir. 1976); LSA-C.C.P. Article 1920. We find no error on the part of the trial court in its assessment of costs against the defendant in the instant suit.

For the reasons assigned the judgment of the trial court dismissing defendant’s recon-ventional demand for damages, as of non-suit, is reversed and it is now ordered, adjudged and decreed that defendant’s recon-ventional demand, in its entirety, is remanded to the trial court for further proceedings consistent with the views herein expressed. Further, that portion of the trial court judgment awarding to plaintiff twenty-five per cent (25%) attorney’s fees is reversed and set aside and plaintiff’s demands for attorney’s fees are dismissed with prejudice. In all other respects the judgment appealed from is affirmed. Defendant Willie Allen White, is cast for all costs of this appeal.

REVERSED IN PART; AFFIRMED IN PART; AND, IN PART REMANDED.

      . The trial judge in his written reasons for judgment specifically found that the evidence did not support defendant’s claim of fraud, duress or error. Appellant does not contest this holding on appeal.

      . In connection with his reconventional demand for damages, defendant White contended, at the trial level, that the amount awardable to him on his reconventional demand for damages could be pleaded in extinguishment of his obligation to plaintiff on the note sued upon. The trial court decided otherwise holding, in effect, that the defense of compensation was inapplicable because plaintiffs claim and defendant-in-reconvention’s claim for damages were not equally liquidated and demandable debts as required by LSA C.C. Article 2209. We do not address this issue since no judgment has yet been rendered on White’s reconventional demand for damages.


author: LABORDE, Judge.

text:
    Sylvia C. BORDELON et al., Plaintiffs-Appellees, v. SAFEWAY INSURANCE COMPANY et al., Defendants-Appellants.
    No. 8173.
    Court of Appeal of Louisiana, Third Circuit.
    April 15, 1981.
    Rehearing Denied May 28, 1981.

      G. Frederick Seemann, of Dean, Lomen-ick & Seemann, Lafayette, for defendants-appellants.
    Gaharan & Wilson, Donald R. Wilson, Jena, for plaintiff-appellee.
    John R. Contois, Marksville, for defendant-appellee.
    Before GUIDRY, SWIFT and LA-BORDE, JJ.
   LABORDE, Judge.

The trial court allowed appellees, Sylvia C. Bordelon and her daughter DeWanda Lachney Bollingham, to satisfy their judgment against Kenneth Jouglard out of sus-pensive appeal bond funds posted by Joug-lard’s insurer, Safeway Insurance Company. The issue on appeal is whether the suspen-sive appeal bond was intended to furnish security for both Kenneth Jouglard and Safeway. The trial court found that it was. Our review of the record reveals no manifest error in the trial court’s decision. Hence, we affirm.

The chronology of events leading up to the present appeal began when Sylvia C. Bordelon, individually and for her minor daughter, DeWanda, sued to recover damages for the personal injuries DeWanda received when she fell out of an automobile. The defendants in the personal injury suit were the driver of the automobile, Kenneth Jouglard and Jouglard’s insurer, Safeway. The trial court rendered judgment in favor of Mrs. Bordelon and DeWanda and against Jouglard and Safeway, finding them soli-darily liable for DeWanda’s damages.

Both Jouglard and Safeway suspensively appealed by filing a single petition and order for appeal and by furnishing a single cash bond of $27,000 as security. This cash bond was deposited in the registry of the court in Avoyelles Parish and forms the fund which is at issue here on appeal.

On appeal, the judgment was affirmed as to Jouglard and was reversed as to Safeway. Sylvia C. Bordelon v. Safeway Insurance Company and Kenneth P. Jouglard, 380 So.2d 1379 (La.App. 3rd Cir. 1980), writs denied.

It was while this matter was in the Court of Appeal that DeWanda married and was permitted to substitute herself as DeWanda Lachney Bollingham.

After the judgment against Jouglard became final, Mrs. Bordelon and DeWanda filed a petition for garnishment followed by a garnishment rule. Named as garnishee was Samuel G. Couvillion, Clerk of Court in Avoyelles Parish. Through their petition and rule, Mrs. Bordelon and DeWanda requested that the funds, deposited with the clerk on Jouglard’s account in order to perfect his suspensive appeal, be delivered to them in satisfaction of their judgment against Jouglard. At this point, Safeway intervened asking that the garnishment not take place; that the Court find that the cash bond was posted to secure Safeway’s suspensive appeal only and not that of its insured Jouglard; and that after finding such, the court ordered a return of the proceeds of the appeal bond to Safeway as owner.

After a hearing on the rule, the trial court rendered judgment in favor of Mrs. Bordelon and DeWanda and ordered that the funds held by the Clerk be paid over to the Sheriff for satisfaction of their judgment against Jouglard. Safeway appeals. It is the trial court’s judgment on the garnishment rule that we are concerned with in this appeal.

The primary issue is whether the suspen-sive appeal bond was posted to furnish security for the appeals of both Safeway and Jouglard in the personal injury action or, as Safeway contends, whether it was posted with intent to secure Safeway’s appeal only.

Article 2124 of the Louisiana Code of Civil Procedure concerns the security which must be furnished for a suspensive appeal. More importantly, that article also provides that the surety on the appeal bond, upon default of the appellant, shall be liable for the amount of any judgment rendered against the appellant on appeal.

In the instant case, Jouglard and Safeway chose to utilize a cash bond deposited into the registry of the court instead of the usual surety bond. This procedure was approved in Marie v. Police Jury of the Parish of Terrebonne, 157 So.2d 919 (La. App. 1st Cir. 1963). The result is that if this court finds that the cash deposit was intended to secure Jouglard’s appeal, then any judgment against him may be paid or satisfied from the cash bond proceeds. LSA-C.C.P. 2124.

Safeway’s argument that the money posted was not for the use and benefit of Joug-lard, but was only for the use and benefit of Safeway is simply not borne out by the record in this action.

Safeway and Jouglard were co-defendants in the personal injury suit brought by appellees. There was one judgment rendered and it held Safeway and Jouglard solidarily liable. From this single judgment, Safeway and Jouglard filed a joint petition and order for a suspensive appeal. Only one bond was posted to secure the appeal.

The law is clear that only one order of appeal and one appeal bond is necessary for multiple appellants from a single judgment. Borne v. Bourg, 327 So.2d 607 (La.App. 4th Cir. 1976). Further, that Safeway intended to secure Jouglard as well as itself may also be found from Safeway’s relation to Jouglard as his insurer. At trial, Safeway’s adjuster, Mr. Bur-kehalter, when cross-examined on the case, testified as follows:

“BY MR. WILSON:
Mr. Burkehalter, do you know whether or not at the time the suspensive appeal was filed, there was a judgment against Kenneth Jouglard and Safeway Insurance?
BY MR. BURKEHALTER:
Do I ... do I ...
BY THE COURT:
Did you ... did you or did you not know that, that’s the question.
BY MR. BURKEHALTER:
Oh, absolutely. But no reason to file the appeal.
BY MR. WILSON:
Did, at the time you filed the appeal, was Kenneth Jouglard your insured and were you complying with your contractual obligation to provide him with a defense?
BY MR. BURKEHALTER:
At the time that the appeal was filed, he was no longer insured by Safeway.
BY MR. WILSON:
The ... let me ... let me ... Let me rephrase this. At the time of the accident which underlays the suit, was Mr. Jouglard your insured?
BY MR. BURKEHALTER:
Yes, sir.
BY MR. WILSON:
Did you not have a contractual obligation at that time to provide him with a defense?
BY MR. BURKEHALTER:
I believe that’s what . .. yes, sir.
BY MR. WILSON:
And is ... at the time you filed this suspensive appeal bond, were you not in compliance with that obligation?
BY MR. BURKEHALTER:
I believe if memory serves me right, of course the contract was not introduced into the original record, but I believe it says to defend on behalf of the insured all suits (inaudible) or otherwise or whatever the terminology is.
BY MR. WILSON:
So that when a suspensive appeal was petitioned for and granted, and when the bond was posted, it was for Safeway Insurance and Kenneth P. Joug-lard? Is that not true?
BY MR. BURKEHALTER:
Now counselor ...
BY THE COURT:
Just answer yes or no, or I don’t know. BY MR. BURKEHALTER:
I don’t know.”

(Tr. 119-120)

Mr. Burkehalter was further questioned by the court as follows:

“BY THE COURT:
Mr. Burkehalter, let me ask you this. At the time this accident happened, there was a contract of insurance, right?
BY MR. BURKEHALTER:
Yes, Sir.
BY THE COURT:
(Inaudible) .... you were to protect this young man, Jouglard, in the event he was sued. You owed him a defense and you owed him indemnification and all this under the policy, is that true?
BY MR. BURKEHALTER:
That’s true.
BY THE COURT:
Now, does the policy also .. . the provisions of this policy, does that carry on to protect them into appellate courts?
BY MR. BURKEHALTER:
Judge, it simply states that to defend, and I would assume this is purely an assumption on my part, that. ...
BY THE COURT:
Well, you know, you do. But you would owe it to him?
BY MR. BURKEHALTER:
Well, that’s part of the judicial process.
BY THE COURT:
Part of the defense. Now, let me ask you another question. Under the terms of similar policies, have you provided appellate defenses for your insured?
BY MR. BURKEHALTER:
I would imagine so, your Honor. I’ve done this for 45 years and it would be hard to . ..
BY THE COURT:
You’d know whether to do it or not?
BY MR. BURKEHALTER:
Oh, yes sir.
BY THE COURT:
Alright. Thank you.”

(Tr. 120-121)

In addition, at the time the suspensive appeal was filed, Safeway and Jouglard had the same attorney of record who, at the rule hearing, stated that if he were called he would testify that the appeal was filed for both parties. (Tr. 112) We also note the lack of any distinction made or limiting language used by Safeway at the time the petition for appeal was lodged or at the time the funds were deposited with the court even though it would have been very simple for Safeway to do so, and even though such limiting language has been upheld in the jurisprudence. Corkern v. Main Insurance Company, Chicago, Illinois, 289 So.2d 334 (La.App. 1st Cir. 1973) writ refused, 293 So.2d 168 (La.1974).

The trial court, apparently impressed with the above evidence, found as a matter of fact:

“If the $27,000.00 bond had not been intended for Jouglard, it would have been very simple for Safeway to appeal sus-pensively and Jouglard to appeal devolu-tively.
The Jouglard judgment is final and the purpose of the $27,000.00 bond was to insure payment of the judgment.” (Tr. 87)

Upon our review of the record, we find no manifest error in the trial court’s decision. We are thus not at liberty to disturb the decision on appeal. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to appellant, Safeway Insurance Company.

AFFIRMED.


text:
    Robert C. HOLLAND, Jr., Plaintiff-Appellee, v. FIRST NATIONAL BANK OF CROWLEY, Defendant-Appellant.
    No. 8181.
    Court of Appeal of Louisiana, Third Circuit.
    April 15, 1981.

      Edwards, Stefanski & Barousse, Homer Ed Barousse, Jr., Crowley, for defendant-appellant.

      Privat & Regan, Thomas K. Regan, Crowley, for plaintiff-appellee.
    Before GUIDRY, SWIFT and LA-BORDE, JJ.
   SWIFT, Judge.

On December 5, 1973, Robert C. Holland, Jr., plaintiff, brought to the First National Bank of Crowley, defendant, a bag of pre-1965 silver quarters with a face value of $495.25. The bag was labeled “Robert Holland, Jr.” and placed in the bank’s vault. An entry of $495.25 was recorded in Holland’s Gold Key Savings Account passbook and he received a deposit slip for this amount which also said:

“SILVER QUARTERS PRE 1965 TO BE HELD IN VAULT”.

The credit to Holland’s account brought his balance to $1,154.456. On December 31, 1975, he withdrew $500.00 from the account. However, the balance remaining then and thereafter was in excess of $495.25.

In February 1979 the bank sold the silver quarters for a price of $1,955.60. This amount was not credited to Holland’s account. Plaintiff discovered the sale in March, 1979, whereupon, according to a stipulation, he became “angry and upset.” Holland demanded that the bank return a like amount of pre-1965 silver quarters. Upon its refusal, Holland instituted this suit for “tortious conversion” and return of the property and also for damages for embarrassment, humiliation and inconvenience.

The bank denied liability, contending that upon the credit to Holland’s savings account of $495.25 the quarters were the property of the bank, became comingled with its other funds, and they were sold in the regular course of business.

The trial judge concluded the defendant had wrongfully converted the silver quarters. She recognized that the traditional remedies in cases of conversion have been recovery of the property or recovery of its value, interest and damages if the property had been sold to a third person. Pisciotta v. Du Saules, 125 So.2d 181 (La.App. 4 Cir. 1960), LaFleur v. Sylvester, 135 So.2d 91 (La.App. 3 Cir. 1961). But she decided that under these circumstances Article 2944 of our civil code provides the best possible remedy. It reads:

“The depositary ought to restore the precise object which he received.
“Thus a deposit of coined money must be restored in the same specie in which it was made, whether it has sustained an increase or diminution of value.”

Therefore, the judgment ordered the defendant bank to return to plaintiff a like amount of pre-1965 silver quarters. In addition, the plaintiff was awarded $1,500.00 as general damages with legal interest thereon from judicial demand and like interest from the date of conversion on $1955.60, the amount the bank received from the sale of the silver quarters.

From this judgment the defendant has appealed.

We agree with the trial judge that Holland and the bank were respectively depositor and depositary of the bag of silver quarters and the bank is obliged to restore the deposit in kind.

A deposit is an act by which a person receives movable property of another binding himself to preserve it and return it in kind. Civil Code Articles 2926 and 2928. It is perfected by real or ficticious delivery of the thing deposited. Civil Code Article 2930. If it is a voluntary deposit it takes place by the mutual consent of the person making the deposit and the person receiving it. Civil Code Article 2932.

In this case the money was placed in a bag marked with Holland’s name and the deposit slip stated that it was to remain in the vault. Nothing indicated the coins were to be comingled with the bank’s funds. Thus, the bank agreed to and did receive the movable property from Holland, expressly obligating itself by the terms of the deposit slip to preserve the bag of quarters in the vault and impliedly to return the bag and its contents to the owner on demand. Certainly Holland was not just an ordinary creditor of the bank who had deposited money to be mixed with the general funds of the bank and used by it in the regular course of its business, subject to ordinary withdrawal by the depositor. In re Louisiana Savings Bank and Safe Deposit Company, 40 La.Ann. 514, 4 So. 301 (La.1888).

We attach no significance to the fact that the bank credited Holland’s passbook with $495.25. Like the trial judge, we view this as an error on the part of the bank. That entry did not vitiate the express condition of the deposit, evidenced by the deposit slip and bag label, that the silver coins remain in the vault in the name of Robert Holland, Jr.

We also attach no significance to the fact that Holland subsequently withdrew funds from the savings account. The balance never fell below $495.25, so the withdrawals cannot be construed as any indication that the plaintiff intended to draw against the deposit.

Article 2937 of our civil code requires the depositary to use the same diligence in preserving the deposit as he does in preserving his own property. Civil Code Article 2940 forbids the depositary to make use of the thing deposited unless it has express or implied permission of the depositor. Thus, a depositary must show that he did not use the property on deposit and that he acted as diligently in preserving deposited property as he would in preserving his own.

Our jurisprudence has approved the common law notion of conversion in the interpretation of Article 2940. Conversion is a distinct act of diminution over another’s property in denial of or inconsistent with the owner’s rights therein. Edwards v. Max Thieme Chevrolet Co., 191 So. 569 (La. App. 2 Cir. 1939); Importsales, Inc. v. Lindeman, 231 La. 663, 92 So.2d 574 (La. 1957); Hamilton v. Travelers Indemnity Company, 248 So.2d 617 (La.App. 3 Cir. 1971).

In Short v. Lapeyreuse, 24 La.Ann. 45 (1872), the depositary sold sugar deposited with it by the plaintiff’s depositor and converted the money to his own use. The court held the depositary liable for the value of the sugar, saying:

“It was bad faith in the defendant to ship and sell for his own account the sugar of the plaintiff left in his keeping as depositary.”

The bank’s unauthorized sale of the deposited quarters not only violated the express prohibition of Article 2940, but in our opinion constituted a tortious conversion of the deposited property.

In regard to the plaintiff’s remedy, as previously mentioned the general rule is that the measure of damages for tortious conversion is the value of property converted with interest and damages if the property has been sold to a third person, and if not the plaintiff can recover the property itself. However, we believe the trial court properly applied Civil Code Article 2944 under the unique facts of this case.

The first paragraph of Article 2944 states that the depositary ought to return the precise object deposited. This, of course, is based on the assumption that the precise object is still within reach of the depositary. Such is not the case here. However, the second paragraph of the article is applicable, requiring that a deposit of coined money be restored in the same specie.

Black’s Dictionary defines “specie” as “coin of the precious metals, of a certain weight and fineness, and bearing the stamp of government, denoting its value of currency.” It is obvious from the amount of the proceeds of the sale of Holland’s quarters that quarters minted after 1965 do not possess the same precious metal composition as their pre-1965 silver counterparts. Thus, pre-1965 silver quarters are different specie than post-1965 quarters and to comply with the codal article the bank must restore 1,981 pre-1965 silver quarters.

The defendant contends that there is no proof in the record to substantiate the award of $1,500.00 to plaintiff, presumably for mental anguish caused by the tortious conversion. However, the record discloses the parties stipulated that plaintiff was “angry and upset” over the loss of his quarters.

Despite the specific remedy prescribed by our code for conversion of this type of property, we see no reason why Holland should not recover general damages which are allowed in cases involving wrongful taking. LaFleur v. Sylvester, supra; Vercher v. Toda Enterprises, Inc., 216 So.2d 318 (La.App. 3 Cir. 1968). We must admit that the amount of the general damage award is quite generous, but we cannot say that the trial judge abused her “much discretion” in this respect. Civil Code Article 1934(3). Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976); Reck v. Stevens, 373 So.2d 498 (La.1979). The award of legal interest from judicial demand on this sum was proper. We also affirm the award of such interest on the value of the quarters from the date of their conversion. LaFleur v. Sylvester, supra.

We are convinced, however, that the trial court erred in not crediting the defendant with the sum of $495.25 upon return of the deposit. As pointed out heretofore, this amount was erroneously credited to plaintiff’s savings account when the quarters were placed in the vault because the defendant never had the use of such money.

For the foregoing reasons, the judgment of the district court is amended to allow defendant a credit of $495.25 on the award for general damages, but otherwise it is affirmed. The costs of appeal are assessed to defendant-appellee.

AMENDED AND AFFIRMED.


text:
    G. P. SMITH et al., Plaintiffs-Appellees, v. Sam DUCOTE, Defendant-Appellant.
    No. 8184.
    Court of Appeal of Louisiana, Third Circuit.
    April 15, 1981.
    Rehearing Denied May 28, 1981.

      Gaharan & Wilson, Donald R. Wilson, Jena, for defendant-appellant.
    Michael Johnson, Cottonport, for plaintiffs-appellees.
    Before GUIDRY, SWIFT and LA-BORDE, JJ.
   SWIFT, Judge.

The Small Business Administration (SBA) acquired a tract of land of over 100 acres with improvements in Avoyelles Parish in the bankruptcy proceeding of defendant, Sam Ducote, and sold it to the plaintiffs, G. P. Smith and wife, for $62,500.00 at an auction on March 15, 1979. Prior to the auction Ducote, desiring to get his property back, had approached Smith and his father and discussed obtaining a loan for such purpose. The record does not disclose just what their agreement was or who was to buy the land at the SBA sale (both Smith and Ducote appear to have bid at the auction), but it is clear that Ducote deposited in escrow with the Smiths’ attorney $15,000.00 to be used in this connection and also paid them some $3,024.48 which G. P. Smith classified as “interest” on money Smith had in escrow before he acquired the property from the SBA and as “rent” thereafter as Ducote was occupying same. On the day of the auction Ducote gave Smith $7,500.00 more.

The testimony reflects that plaintiffs’ attorney prepared a set of papers that apparently conveyed the property to Ducote by a credit transaction wherein the latter was to execute a note to plaintiffs for $40,000.00 which their counsel contends provided for interest from date at 22.75% per annum payable in installments over a period of seven years. However, these documents are not in the record. Be that as it may, before they were executed the parties were advised by another lawyer that such transaction was usurious and illegal. He then prepared a credit sale with a note secured by a vendors’ lien and mortgage which are the subject of this controversy.

The deed from the plaintiffs to defendant is dated April 18,1979, and recites a price of $102,765.36 of which $22,500.00 had been paid in cash and for the balance of $80,-265.36 the purchaser executed a note payable in 84 monthly installments of $955.54 commencing May 25, 1979. It provided interest at 10% per annum from maturity and attorney’s fees of 15% for collection in the event of default.

There was considerable disagreement between the Smiths and Ducote about this matter prior to and at the time of the auction and also thereafter. Ducote testified that he tried to get out of the arrangement, but was told by the Smiths several times that if he did he would lose all of the money he had put up. On the other hand, G. P. Smith denied this and testified he offered Ducote his money back before and after he purchased the property because he wanted to keep it as an investment. He said he told Ducote he would sell it to him only if the latter put up at least $22,500.00 as the down payment and Smith could make a $40,000.00 profit over a seven year period; whereupon Ducote got the additional $7,500.00 and gave it to him.

Their disagreement continued until the documents were finally executed by the parties on April 18, 1979. Mr. Ducote contended he did so only because he was going to forfeit his $22,500.00 and also he and his children needed a place to live. He admitted, however, that before the documents were signed he discussed the matter with his own attorney, who advised him that they could not keep his money and he should not complete the transaction. Du-cote said he understood though that this would cost “a good portion of the money” for litigation.

The plaintiffs filed this suit on the note and mortgage on February 27, 1980, alleging that defendant failed to pay the installment due on February 25, 1980. The defendant denied the alleged default and further contended that the note charged a usurious interest rate which caused forfeiture of all interest, including that capitalized in a face amount of the note, that the note was given for an inadequate consideration and the transaction was also invalid for lack of defendant’s free and willing consent resulting from adhesion and duress. He reconvened for recission of the transaction, for return of all payments made by him as a part of the purchase price and the cost of improvements allegedly made by him since acquisition of the property on April 18, 1979.

After trial on the merits the trial judge rendered judgment in favor of the plaintiffs in the sum of $71,665.50 with interest of 10% per annum from February 27, 1980, and $10,749.83 as an attorney fee and ordered that the mortgage be ranked according to law. From this judgment the defendant has appealed.

The first issue to be resolved is whether the contract of sale is invalid for want of Ducote’s free and knowledgeable consent.

Upon consideration of the conflicting testimony as to forfeiture of defendant’s advances the trial judge believed either that Smith did not make the statements which Ducote related or if he had they did not constitute sufficient duress to force the latter to consummate the sale. We agree with this determination of these factual issues. Despite his characterization of the contract as “harsh”, the judge stated in his oral reasons that Ducote was a businessman and not a novice that had signed the contract. Nothing in the record indicates that the defendant was not fully apprised of all of the facts involved and he discussed the entire matter with his attorney prior to consenting to the sale. We conclude that Ducote’s consent to the contract of sale was not vitiated by any misrepresentation or threat on the part of Smith.

Next, we will consider defendant’s contention that he was not in default when plaintiffs filed the suit on February 27, 1980. There is also a conflict in the evidence as to when Smith received the check for the February 25th installment. Again the trial judge apparently believed Mr. Smith’s version of this factual dispute. We certainly cannot say that he was clearly wrong in his determination that this installment was not paid timely. Therefore we must conclude that Mr. Ducote was in default when this suit was instituted.

Now we turn to the issue of whether the transaction involved usurious interest. Mr. Ducote claims that the agreed price of the sale was $62,500.00 instead of $102,765.36 and that the difference of $40,265.26 was capitalized interest at the rate of 22.75%. He also contends that the prior payments of $3,024.48 heretofore mentioned constituted usurious interest.

Defendant concedes that capitalization of interest in the face amount of a note at more than 8% per annum is permitted by LSA — C.C. Article 2924, provided the obligation does not bear more than 8% per annum interest after maturity. General Securities Company v. Jumonville, 216 La. 681, 44 So.2d 702 (1950); Karmgard v. Southland Mortgage and Title Company, 341 So.2d 1109 (La.1977). However, he argues that such provision of the codal article is inapplicable in this instance, because Du-cote’s note provides for 10% interest after maturity. We would be inclined to agree with defendant’s position if it had been established that the involved parties had agreed that the price of the sale from the Smiths to Ducote was $62,500.00. However, from our review of the record we are unable to find that the parties ever agreed on a price for such a sale until it was finally consummated by the execution of the note and deed on April 18, 1979.

As mentioned above, it is not clear just what the parties agreed to at first, but from the testimony of both G. P. Smith and Ducote it appears the original understanding had fallen through when Mr. Smith made the high bid and purchased the property at the auction. Thereafter, Smith agreed to sell the property to defendant if he would give him an additional $7,500.00 for the down payment and a profit of some $40,000.00. While the papers were being drafted and redrafted Ducote considered and finally agreed to purchase at the price set forth in the deed and according to its terms. Under the circumstances we are unable to conclude that the face amount of the note included a capitalization of interest and the purchase price rather than simply the purchase price agreed upon by the parties which included the Smiths’ profit. The party who pleads the affirmative defenses of usury or mistake and error has the burden of proving such defenses. All State Credit Plan Jefferson, Inc. v. Daniels, 239 So.2d 470 (La.App. 4 Cir. 1970), writ refused 256 La. 1159, 241 So.2d 256 (La.1970).

The proof offered also falls short of establishing that the prior payments by Du-cote to Smith of “interest” or “rent” constituted usurious interest with respect to the sale finally consummated.

We do agree with defendant’s contention that the 10% interest rate from maturity provided in the note is usurious.

Civil Code Article 2924 provides that conventional interest cannot exceed 8%. An exception to this article is LSA-R.S. 9:3503 which at the time of the sale provided as follows:

“Notwithstanding any other law to the contrary, particularly but not exclusively Louisiana Civil Code Article 2924, the amount of simple conventional interest on obligations bearing interest from date and secured in whole or in part, directly or indirectly, by a mortgage on immovable property, shall not exceed ten percent per annum. The same must be fixed in writing; testimonial proof of it is not admitted in any case.” (Emphasis added.)

Since the statute specifically limits its application to obligations bearing interest from date and the note in this case bears interest at 10% from maturity, we conclude that the interest rate violates Article 2924 and is therefore usurious.

LSA — R.S. 9:3501 provides:

“Any contract for the payment of interest in excess of that authorized by law shall result in the forfeiture of the entire interest so contracted.” (Emphasis added.)

Thus, the Smiths must forfeit the 10% interest after maturity of the note which they contracted. However, they are entitled to legal interest on the unpaid principal from maturity of the debt. LSA— C.C. Article 1938; Green v. Johnson, 14 La.App. 110, 129 So. 384 (2 Cir. 1930); Meadow Brooks National Bank v. Recile, 302 F.Supp. 62, 85 (U.S.D.C., E.D.La.1969).

For the foregoing reasons, the judgment of the district court is amended so as to award interest at 7% per annum from February 25, 1980, on the principal indebtedness. Otherwise, it is affirmed. The costs of this appeal are assessed to defendant-appellant.

AFFIRMED AS AMENDED.

      . Legislative Act 205 of 1979, effective July 6, 1979, increased the interest rate from 10% to 12%.


text:
    Ted D. LeBLANC, Plaintiff-Appellant, v. REED-JOSEPH COMPANY et al., Defendants-Appellees.
    No. 8193.
    Court of Appeal of Louisiana, Third Circuit.
    April 15, 1981.
    Shelton & Legendre, Aubrey Denton, Lafayette, for plaintiff-appellant.
    Voorhies & Labbe, John N. Chappuis, Lafayette, Plauche, Smith, Hebert & Nieset, Allen L. Smith, Jr., Lake Charles, for defendant-appellee.
    Before DOMENGEAUX, CUTRER and SWIFT, JJ.
   MOTION TO REMAND

CUTRER, Judge.

Plaintiff appeals from a judgment of the trial court which dismissed plaintiff’s suit as against Dupont Manufacturers, Inc. Du-pont had filed an exception of prescription which was sustained by the trial court after a hearing held on August 6, 1979. The tapes of the testimony were misplaced and thus were not transcribed for this appeal. The minutes reflect that the only testimony taken at the hearing was that of plaintiff, Ted D. LeBlanc.

Plaintiff-appellant filed a motion to remand the suit for the purpose of retaking such testimony.

Under such circumstances, this court will remand the suit for the limited purpose of retaking the testimony of Ted D. LeBlanc only insofar as such testimony may relate to the exception of prescription filed herein. Guillory v. Nelson Dodge, Inc., 386 So.2d 188 (La.App. 3rd Cir. 1980).

For the reasons assigned, it is ordered that this suit be remanded for the purpose of again taking the testimony of Ted D. LeBlanc only insofar as such testimony may relate to the exception of prescription.

APPEAL REMANDED.


author: DOUCET, Judge.

text:
    Ruby Mae CELESTINE, Plaintiff-Appellant, v. GREAT SOUTHERN OIL & GAS COMPANY and Lawrence Vincent, Jr. and United States Fidelity & Guaranty Company, Defendants-Appellees, Ed Rubin, Intervenor.
    No. 8195.
    Court of Appeal of Louisiana, Third Circuit.
    April 15, 1981.
    Rehearing Denied May 28, 1981.
    Donald J. Richard, Opelousas, for plaintiff-appellant.
    Cachassin & Capretz, Tom Jones, Lafayette, for defendants-appellees.
    Edward Rubin, in pro. per.
    Before DOMENGEAUX, CUTRER and DOUCET, JJ.
   DOUCET, Judge.

Plaintiff, Ruby Mae Celestine, brought this suit against Great Southern Oil & Gas Company and Lawrence Vincent, Jr. to recover damages for personal injuries that she sustained in an automobile collision on January 31, 1978. At the trial, the defendants stipulated that they were liable for any damages sustained by plaintiff as a result of the accident, and that plaintiff had incurred medical expenses in the sum of $876.00. The issue of damages was tried before a jury, which returned a verdict in favor of plaintiff in the sum of $2,000.00. From a judgment rendered in accordance with that verdict, plaintiff appealed.

Plaintiff’s assignments of error are as follows:

(1) The jury’s award of $2,000.00 was so inadequate as to constitute an abuse of its discretion.
(2) The trial court erred in failing to grant a new trial because of the inadequacy of the verdict.
(3) The trial court erred in refusing to grant a new trial because of jury misconduct.

The evidence concerning plaintiff’s injuries consisted primarily of the testimony of plaintiff and two physicians, Dr. Louis Weinstein and Dr. James McDaniel. Plaintiff testified that shortly after the accident her head began to ache and that in the following days and months she has experienced generalized pain and swelling throughout most of her body, as well as gastrointestinal complaints. She also testified that her pain was increased upon exertion, and that she found it necessary to restrict her activities and take analgesics to achieve any degree of comfort.

Dr. Louis Weinstein, a general practitioner, testified that he examined plaintiff five days after the accident. He concluded at that time that she has suffered a whiplash, or hyperextension, injury of her neck. He attributed her subsequent complaints of pain, swelling and gastrointestinal distress to nerve irritation, which was secondary to the whiplash injury. For ten months following the accident, Dr. Weinstein treated plaintiff with diathermy treatments, analgesics, and other medications.

Dr. James McDaniel, an orthopedic surgeon, testified that he examined plaintiff on one occasion approximately one year pri- or to the trial. X-rays and a complete orthopedic examination revealed no objective signs of an injury at that time. During the course of the examination, plaintiff complained of pain numerous times. Dr. McDaniel found her responses to be vague and inappropriate from a physiological standpoint. He concluded that she was being untruthful when she claimed that she was experiencing pain.

Plaintiff argues that in view of her testimony and the testimony of Dr. Wein-stein, the jury’s award was clearly inadequate. We find no merit in that argument. Dr. Weinstein readily admitted that his conclusions were based largely on plaintiff’s subjective complaints. He did not take X-rays or perform other similar diagnostic tests during the time that he was treating her, and his physical examinations revealed few objective symptoms to support her complaints. Dr. McDaniel’s testimony raises considerable doubt about plaintiff’s credibility and about the soundness of Dr. Wein-stein’s conclusion that her complaints stemmed from a hyperextension injury. Under those circumstances, we find that the jury could reasonably have rejected their testimony and concluded that plaintiff’s injuries were simply not as bad as she claimed.

In connection with her first two assignments of error, plaintiff also alleged that defendant’s attorney had stated in his summation to the jury that a fair and just award would be the sum of $5,000.00. Plaintiff argues that that statement was a judicial admission, which was binding on the defendants, citing the recent case of Johnson v. Harry Jarred, Inc., 391 So.2d 898 (La.App. 2nd Cir. 1980). We need not determine the applicability of the holding in that case to the circumstances alleged by plaintiff, however, since we find that she has failed to prove her allegations. The record before us does not contained a transcription of counsel’s opening and closing statements. Thus, there is no evidence in the record to support plaintiff’s argument.

It is well established that trial courts are vested with considerable discretion in fixing awards of general damages and that such awards may not be disturbed on appeal unless the record clearly reveals an abuse of that discretion. Coco v. Winston Industries, Inc., 341 So.2d 332 (La. 1977); Reck v. Stevens, 373 So.2d 498 (La. 1979). After reviewing all of the evidence, we do not find that the award is so inadequate as to constitute an abuse of the jury’s discretion. Accordingly, we find no error in the trial court’s refusal to grant a new trial on that basis.

Plaintiff’s third assignment of error deals with the trial judge’s refusal to grant a new trial because of jury misconduct. In her motion for a new trial, plaintiff alleged that because of some confusion about the trial judge’s instructions, the jury erroneously arrived at a quotient verdict. At the hearing on the motion, plaintiff attempted to prove that allegation by means of an affidavit sworn to by the jury foreman, John Rachal.

Defendants correctly argue that such evidence is inadmissible. The prevailing rule in the jurisprudence of this state is that the affidavits or testimony of jurors to impeach their own verdicts are inadmissible. Lachney v. Jones, 373 So.2d 595 (La. App. 3rd Cir. 1979), writ denied 376 So.2d 959 (La.1979). Accordingly, we find that the trial judge correctly refused to find that there was jury misconduct on the basis of the foreman’s affidavit. Since we find nothing in the trial judge’s instructions to the jury which could reasonably be construed as an inference that a quotient verdict should be reached, we agree that plaintiff has failed to prove that she is entitled to a new trial because of jury misconduct.

For these reasons, the judgment appealed by plaintiff is affirmed. All costs of this appeal are taxed to plaintiff.

AFFIRMED.


text:
    Donald K. BUTCHER, D. C., Plaintiff-Appellant, v. SOUTH CENTRAL BELL TELEPHONE COMPANY, Defendant-Appellee.
    No. 8196.
    Court of Appeal of Louisiana, Third Circuit.
    April 15, 1981.
    Pugh & Boudreaux, Nicholls Pugh, Jr., Lafayette, for plaintiff-appellant.
    Onebane and Associates, Edward C. Abell, Jr. and Jim Pate, Lafayette, for defendant-appellee.
    Before GUIDRY, SWIFT and LA-BORDE, JJ.
   LABORDE, Judge.

Plaintiff, Donald K. Butcher, D. C. brought this suit for breach of contract against South Central Bell Telephone Company alleging an omission of one of ten listings of his name in the 1978 South Central Bell Telephone directory. The trial judge found that defendant had in fact breached its contract and awarded plaintiff damages in the amount of $1,500. Plaintiff appeals seeking an increase in damages. Defendant answered the appeal, urging that the award be reduced. We find no manifest error in the findings of fact by the trial judge, nor do we find an abuse of discretion by the trial court in the damages awarded to plaintiff.

Donald K. Butcher is a chiropractor. When contacted by a representative of defendant, Dr. Butcher contracted for his name to be placed in the yellow pages of the 1978 telephone book under “CHIROPRACTORS D C” exactly as it appeared in the 1977 directory, viz:

“BUTCHER DONALD K DC Chiropractic Physician Evangeline Chiropractic Clinic Hours 8AM-6PM Mon-Fri Saturday 9AM-2PM Fiesta Village Shopping Center 4416 Johnston_981-2937”

The 1978 telephone book was in use in the Lafayette area for a period of eleven (11) months; from October, 1978, through August, 1979. Contrary to Dr. Butcher’s agreement with defendant, his name did not appear in the 1978 directory as contracted for.

At the trial and again on appeal, Dr. Butcher attempted to prove that the omission of one of his ten requested listings in the 1978 telephone directory cost him approximately $26,000. He reasons that since he had 136 new patients directly attributable to referrals from the phone book in the eleven month period that the 1977 phone book was in use in the Lafayette area and only 33 new patients during the comparable period when his name was omitted from the 1978 phone book (a loss of 103 patients) and since the established average fee for each new patient is $192.25 less $1.50 for costs of X-ray film, Dr. Butcher sustained a net loss of $19,647.25.

Dr. Butcher further argued that 36% of his new patients were referred by old patients. Therefore, in addition to the 103 patients that he could reasonably anticipate from telephone referrals during 1978, he lost 36% of 103 or 37 patients, resulting in an additional loss of $7,113.25 less the $1.50 per patient costs for X-ray, amounting to a net loss of $7,057.75. The combined losses sustained by Dr. Butcher during 1978, according to his projections, totaled $26,705.

Defendant presented no evidence and at the end of plaintiff’s presentation, the distinguished trial judge ruled that Dr. Butcher did contract with South Central Bell for the omitted listing but that due to the multiple listings requested by Dr. Butcher, it would be speculative to predicate a quantum award in the amounts computed by the doctor under his patient card referral theory. Nonetheless, the trial judge went on to find that defendant did breach the contract by failing to list the doctor as he wanted to be listed and that for this, he was entitled to some damages. Accordingly, plaintiff was awarded $1,500.

It is a well-recognized fact that the income of professional practitioners fluctuates from year to year. In fact the practice of Dr. Butcher showed an increase during the years concerned in this trial. We agree with the trial judge that it is difficult to fix damages with any degree of certainty and it is of course improper for us to indulge in speculation.

However, Dr. Butcher’s contractual rights were clearly violated and he is entitled to be compensated for his losses. We find no abuse of the “much discretion” afforded the trial judge in awarding damages. LSA-C.C. art. 1934(3). See Levy v. Southern Bell Telephone and Telegraph Co., 172 So.2d 371 (La.App. 4th Cir. 1965) and Weinberg v. Southern Bell Telephone & Tel. Co., 174 So.2d 178 (La.App. 4th Cir. 1965), writ refused, 247 La. 1031, 175 So.2d 645 (1965).

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

AFFIRMED.

      . Dr. Butcher follows a practice of having his new patients fill our introductory cards. As part of this procedure, the new patient is asked to indicate a referral source. Dr. Butcher utilized this information in arriving at his damage computations. However, we note that the referral cards did not require of the new patient that he designate which of the ten listings led him to Dr. Butcher.