author: HALL, Judge. MARVIN, Judge,

text:
    Mrs. Naomi BOYETTE, Roy Dean Boyette and Harvey Lowe, Plaintiffs-Appellants, v. AUGER TIMBER COMPANY, Employers Insurance of Wausau, Melvin Rowland and the Department of Transportation and Development, Defendants-Appellees and Third Party Defendants-Appellees.
    No. 14589.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 25, 1981
    En Banc. Rehearing Denied Oct. 1, 1981.

      Simmons & Nelson by Otha Curtis Nelson, Sr., Baton Rouge, for plaintiffs-appellants, Mrs. Naomi Boyette, Roy Dean Boy-ette and Harvey Lowe.
    Hayes, Harkey, Smith & Cascio by Charles S. Smith, Monroe, for defendants-appellees, Melvin Rowland, Auger, Inc. and Employers Ins. of Wausau.
    Barham, Adkins & Coleman by Charles C. Barham, Ruston, for defendant-appellee, Auger, Inc.
    John W. King, Baton Rouge, for defendant-appellee, The State of Louisiana, through the Dept, of Transp. and Development.
    Davenport, Files, Kelly & Marsh by Thos. W. Davenport, Jr., Monroe, for third party defendants-appellees, Harvey Lowe and The Continental Ins. Co.
   HALL, Judge.

This is an action to recover damages for personal injury and wrongful death resulting from the collision of a tractor-trailer rig and an automobile. Of the five persons occupying the automobile, three sustained severe injuries as a result of the accident: Harvey Lowe, driver of the automobile; Roy Boyette, guest passenger; and Charles Boyette, a minor guest passenger who died as a result of the injuries he sustained. Lowe, Roy Boyette, and Naomi Boyette, mother of the deceased guest passenger, filed suit against the owner of the tractor-trailer rig and its liability insurer, the driver of the rig, and the State of Louisiana, Department of Transportation and Development. The defendants filed a third party demand against Harvey Lowe and his liability insurer, seeking contribution in the event they were cast in judgment. The matter, except as to liability of the state, was tried before a jury and a general verdict was rendered in favor of the defendant-owner of the rig and its employee-driver. In answer to specific interrogatories, the jury specifically found that the driver was not negligent in the operation of the truck and that Auger, Inc., owner of the truck, was not negligent in allowing its employee to drive the truck. The issue of the state’s liability was determined by the trial court which specifically found that there existed no defect in the surface of the road or in maintenance of the road that contributed to the accident. Plaintiffs appeal and we affirm.

The accident in question occurred on January 18, 1979, sometime between the hours of 9:00 and 11:00 a. m. Lowe had been at the home of Naomi Boyette that morning and had offered to drive three of the Boy-ette brothers and their uncle, Oliver Ward, to various places. Lowe left the Boyette home with his four guest passengers and proceeded to Parker’s Grocery, located on the west side of Louisiana Highway 33 in Union Parish about three and one-half miles from the Boyette home. The Lowe vehicle reached Parker’s Grocery in about 10 minutes and one of the guest passengers went inside to make some purchases. The passenger returned to the vehicle and Lowe proceeded to drive through the parking lot of the grocery to the highway. Lowe stopped his vehicle at the edge of the highway and then proceeded to make a left-hand turn onto Louisiana Highway 33. When the Lowe automobile was in a position straddling both lanes of Highway 33, the automobile was struck broadside by a pulpwood tractor-trailer rig which was traveling south on the highway.

On appeal plaintiffs make 29 assignments of error. Sixteen of the assignments concern the trial court’s sustaining of defense counsel objections to questions asked by plaintiffs’ attorney. Most of the objections were sustained on the basis that the answer called for was irrelevant or that the question called for speculation on the part of the witness. After reviewing these alleged errors by the trial court, we find that all of these objections were properly sustained. These assignments of error lack merit.

Plaintiffs complain that the trial court erred in denying plaintiffs’ motion for mistrial sought on the basis that their main witness was arrested in the presence of the jury on the first day of the trial and that one of the jurors, a deputy sheriff, was present in the sheriff’s office when the witness was booked. The trial court found that a mistrial was not warranted because the witness was not arrested in the courtroom but was asked to leave the courtroom by a deputy sheriff who arrested the witness outside. The juror that was present when the witness was booked was dismissed as a juror on the following day thus curing any possible problem of prejudice. There was no error in the trial court’s denial of this motion for a mistrial.

Plaintiffs also contend the trial court erred in denying their motion for mistrial sought on the basis of prejudicial remarks made during the opening statement by counsel for Harvey Lowe, Jr. in his capacity as third party defendant. After plaintiffs filed suit the defendants filed a third party demand against Harvey Lowe, Jr. and his liability insurer seeking contribution in the event the defendants were held liable on the main demand. Counsel for Continental Insurance Company filed an answer on behalf of the insurance company and Lowe, denying any negligence on the part of Lowe. Plaintiffs’ counsel also filed an answer on behalf of Lowe, denying negligence and liability on the third party demand.

During his opening statement to the jury, counsel for Continental and Lowe as third party defendants argued that Lowe had been negligent in the operation of his vehicle and that his negligence was the sole cause of the accident. Counsel believed this to be the best defense against defendants’ third party demand because if the defendants were found free of fault, there could be no claim against Lowe for contribution.

The opening statements were made in the afternoon of the first day of trial. Plaintiffs’ counsel made no objection at the time. One witness was called and testified before the trial was recessed at the end of the day. When the trial resumed the next morning, plaintiffs’ counsel moved for a mistrial, arguing surprise at the position taken by Continental’s counsel, that the position would be prejudicial to plaintiffs, including Lowe, who were asserting the negligence of the defendants as the sole cause of the accident, and that the contrary positions taken by separate counsel for Lowe would be confusing to the jury. The trial court denied the motion, commenting that each attorney would represent Lowe to the best of his ability according to his position in the case and noting that the opening statement was not objected to at the time it was made.

Plaintiffs claim on appeal that counsel’s remarks severely prejudiced plaintiffs’ case. On the one hand, Lowe as plaintiff, through his attorney, contended that the defendants were the only parties at fault and that all damages sustained by the plaintiffs resulted from the sole negligence of the defendants. On the other hand, Lowe as third party defendant, through another attorney, contended that he, Lowe, was solely at fault in causing the accident. Plaintiffs’ claim that counsel’s statements were prejudicial to the plaintiffs’ main demand, particularly that of Lowe, and confusing to the jury is obviously correct.

The fact that objection was not made immediately when counsel for Continental made his opening statement is not important. Plaintiffs’ counsel was obviously taken by surprise, since the position was contrary to that taken by counsel for Continental in his responsive pleadings. That counsel was going to take such a position was not revealed at pre-trial conference or by personal communication between counsel. On oral argument of this case, it was stated that counsel for Continental had not discussed the position to be taken with the insured Lowe or his retained counsel. Considering the surprise element, the fact that the motion for mistrial was made before the trial had progressed very far, and the fact that the objection was not merely to a remark made in the opening statement, but was to a position taken and to be pursued throughout the trial, the failure to make immediate and contemporaneous objection should not be considered as a waiver of the objection.

The position taken by counsel was a judgment call on his part as being the best defense on behalf of both Lowe and his liability insurer against the third party demand for contribution. That counsel’s position prevailed insofar as the defense of the third party demands were concerned does not diminish the highly prejudicial effect that position necessarily had on the plaintiff’s position as plaintiff. The trial should not have been allowed to proceed in this posture.

Because of the confusing posture of the case, which almost necessarily must have influenced the jury to the prejudice of the plaintiffs, we are faced with either reversing the judgment and remanding the case for a new trial or with deciding the case on the record before us. Where an appellate court has a complete record of all necessary evidence before it, it should under its constitutional authority review the facts as well as the law and render a judgment on the merits. When an appellate court believes that errors committed at trial influenced the jury verdict, it should undertake an independent evaluation of the facts and adjudicate the controversy before it. Suhor v. Gusse, 388 So.2d 755 (La.1980); Temple v. Liberty Mutual Ins. Co., 330 So.2d 891 (La.1976); Gonzales v. Xerox Corporation, 320 So.2d 163 (La.1975); Williams v. Sentry Ins. Co., 370 So.2d 901 (La.App. 1st Cir. 1979), writ denied 372 So.2d 1055 (La.1979). However, a case should be remanded where the weight of the evidence is so nearly equal that a firsthand view of the witnesses is essential to a fair resolution of conflicting evidence and issues. The appellate court must itself decide whether the record is such that the court can fairly find a preponderance of the evidence from the cold record. Ragas v. Argonaut Southwest Insurance Co., 388 So.2d 707 (La.1980).

In this case, the evidence is complete with very little conflict and is such that this court can fairly find a preponderance of the evidence. After an independent evaluation of the evidence, we conclude that the preponderance of the evidence clearly establishes that the sole legal cause of the accident was Lowe’s negligence and that the defendants were not negligent.

Trooper Larry Averitt of the Louisiana State Police, qualified as an expert in the field of accident investigation, investigated the accident which is the subject of this suit. The trooper testified that weather conditions on the day of the accident created some problem with visibility; it was a cloudy day with intermittent rain and some fog in the area of the accident. It was trooper Averitt’s opinion that there were no visual impairments to motorists in the area due to the fog. After investigating the scene of the accident, the trooper determined, and testified without objection, that the truck driven by the defendant was being driven at approximately 40 miles per hour; the speed limit in the area of the accident is 55 miles per hour. Additionally, the trooper found that the impact occurred in the truck’s lane of travel. After completing his investigation, the trooper issued a citation to Harvey Lowe, Jr. for failure to yield the right of way, to which charge Lowe later pled guilty and paid a fine.

Lowe and two of his guest passengers testified that the fog was so heavy on the morning of the accident that they could not see more than 15 to 20 feet away. All testified as to the difficulty in seeing out of the car and Lowe had wiped off the front and back windows while stopped at the grocery store. Additionally, these witnesses testified that Lowe stopped his vehicle on the edge of the highway and looked in both directions and had his passengers look in both directions before he proceeded out onto the highway. Seeing nothing coming, Lowe pulled out into the highway. One of the passengers saw the headlights of the oncoming truck and shouted out. Lowe saw the lights of the truck just before it hit his car.

The driver of the truck testified that, although it was foggy, the fog was not so bad as to obscure his vision and he was able to see the automobile in the parking lot of Parker’s Grocery when over 100 yards away from the point where the accident occurred. Other witnesses called by the defendant also testified that although it was foggy on the morning of the accident a driver could still see vehicles approaching on the highway. The defendant driver of the truck testified that he saw the Lowe vehicle but did not think it was going to pull out onto the highway. The driver testified that he applied his brakes immediately when he saw that the Lowe vehicle was moving onto the highway but, by that time, he was too close to the vehicle to avoid impact. The truck driver did not have the last clear chance to avoid the accident because he was confronted with a sudden emergency when Lowe pulled out onto the highway in front of him and did not have time to take evasive action.

After reviewing the record in this case we find, as did the jury and the trial judge, that the driver of the truck was not negligent in the operation of his employer’s vehicle. Since the driver was not guilty of negligence which was a legal cause of the accident, plaintiffs’ claim against the driver’s employer based on its alleged negligence in allowing its employee to operate the truck must also fall. Therefore, we affirm the judgment of the trial court dismissing plaintiffs’ suit against these two defendants and their liability insurer.

Plaintiffs also contend on appeal that the trial court erred in finding that plaintiffs failed to prove any actionable negligence or fault on the part of the Louisiana Department of Transportation and Development. Plaintiffs attempted to prove at trial that overhanging limbs near the shoulder of Louisiana Highway 33 obscured Lowe’s vision and that the department’s negligence in failing to remove the overhanging branches was the proximate cause of the accident.

Photographs of the accident scene introduced into evidence, as well as the testimony of several witnesses including the guest passengers in the Lowe vehicle, established that the trees which allegedly obscured Lowe’s vision were located some 250 to 300 yards north of the accident scene. Based on the view of the scene of the accident and the testimony of the witnesses, the trial court concluded that there was no obscurement of vision because of overhanging limbs. Furthermore, the trial court noted that Lowe and one of the guest passengers testified that visibility was very low because of heavy fog and that they could not see more than 15 to 25 feet from the automobile.

The trial court specifically found that there existed no defect in the surface of Louisiana Highway 33 and that the department was not negligent in its maintenance of the highway. The record clearly establishes that these findings by the trial court are correct.

Finally, plaintiffs contend the trial court erred in failing to grant them a new trial. LSA-C.C.P. Art. 1972 sets forth the grounds upon which a new trial must be granted:

“A new trial shall be granted, upon contradictory motion of any party, in the following cases:
“(1) where the judgment appears clearly contrary to the law and the evidence;
“(2) Where the party has discovered, since the trial, evidence important to the cause, which he could not, with due diligence, have obtained before or during the trial; or
“(3) In jury cases, as provided in Article 1814.”

LSA-C.C.P. Art. 1814 pertains to jury trials:

“A new trial shall be granted if it be proved that the jury was bribed or has behaved improperly so that impartial justice has not been done.”

After a hearing on the motion for a new trial, the trial court found no evidence of improper behavior on the part of the jury. The court further found that the jury verdict was in accordance with the law and the evidence. The record of the evidence on the hearing of the motion for a new trial reveals that there was no evidence of newly discovered information, and no evidence of any misconduct on the part of the jury which would require the trial court to grant plaintiff a new trial. The assignments of error relating to the motion for a new trial are without merit.

In summary, we conclude from our independent analysis of the record that the defendant-driver of the truck was not negligent in the operation of his vehicle. Additionally, we find that the trial court was correct in concluding that the Department of Transportation and Development was not negligent in its maintenance of the road and that there was no defect in the surface of the highway. The sole cause of the accident was Lowe’s negligence in entering the highway in front of the oncoming truck.

The judgment of the trial court dismissing plaintiffs’ suit against all defendants is affirmed at the costs of plaintiffs-appellants.

Affirmed.

MARVIN, J., concurs with written reasons.

MARVIN, Judge,

concurring.

I concur in this very excellent opinion and for the purpose of emphasizing that all lawyers and judges should become thoroughly familiar with the ethical responsibilities of particularly those lawyers who undertake to represent multiple clients. See EC 5-14 through EC 5-17, LSBA Lawyer’s Desk-book, Code of Professional Responsibility, Title 37, LSA Vol. 21(A).

The essence of the Code and the express pronouncement of the Opinions on Ethics is that it is not ethically proper for an attorney to represent both the driver of an automobile and that driver’s guest passengers as co-plaintiffs in an action arising out of a two-car collision, and particularly when a third party action later asserts the negligence of that driver as a cause of the accident. Opinion on Ethics No. 102, p. 0-3, LSBA Lawyer’s Deskbook, and authorities therein.

The Code is also clear in providing that while the lawyer, during his representation of a client, is entitled to make some tactical decisions on his own, the lawyer is not entitled to make the decisions which affect the merits of the cause or which substantially prejudice the client’s rights. EC 7-7, LSBA Deskbook, Title 37, supra.

I especially concur in the statement of the majority that the trial of this case should not have been allowed to proceed in the posture where the one attorney was representing Harvey Lowe and Lowe’s guest passenger after the third party action was filed and was asserting that Harvey Lowe was not negligent, and where the second attorney, representing Harvey Lowe and his liability insurer in the third party action, was asserting to the jury Lowe’s negligence as the sole cause of the accident. Canons 5 and 9, EC’s 5-1, 5-14, 5-15, 5-16, 5-17, 7-7, 7-8, and 7-9, and Opn. Nos. 102, 140, 147, 281, and 339 afford guidance to the lawyers who find themselves in the position of Harvey Lowe’s lawyers.

The Code of Professional Responsibility, since Watergate, is a required course in the nation’s law schools. Members of the profession have the duty to maintain competency in all areas of the law, including this area, for the good of the client and of the profession. Canons 1 and 6, CPR.


source: Caselaw Access Project

author: PRICE, Judge.

license: Public Domain

text:
    Laverne TIPTON, Plaintiff-Appellant, v. Dr. Clinton LEWIS, et al, Defendants-Appellees.
    No. 14591.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 25, 1981.

      Glenn F. Armstrong, Bossier City, for plaintiff-appellant.
    Cook, Yancey, King & Galloway by Sidney E. Cook, Shreveport, for defendants-ap-pellees.
    Before PRICE, HALL and MARVIN, JJ.
   PRICE, Judge.

This medical malpractice action was brought by Laverne Tipton against Dr. Clinton Lewis; his employer, Willis-Knigh-ton Memorial Hospital; and Dr. Russell Rigby for their alleged negligence in the treatment of plaintiff’s husband, Hollis L. Tipton. Plaintiff has appealed from the sustaining of a motion for summary judgment dismissing her demands against defendants. We reverse and remand for the reasons assigned.

In January of 1977, Mr. Tipton consulted Dr. Rigby complaining of stomach trouble, back pain, and pain in his left chest and arm. He had a history of an ulcer several years earlier. Dr. Rigby admitted Tipton into Willis-Knighton Hospital for evaluation and treatment. After extensive testing, including X-rays which were read and interpreted by Dr. Clinton Lewis, a radiologist, a diagnosis of peptic ulcer was made and Dr. Rigby treated the patient for this condition. In May of 1978, Tipton was readmitted into Willis-Knighton Hospital where two urologists, Drs. Yearwood and Kerlin, examined him and reviewed the X-rays made the previous year. Based on the X-rays these two doctors located a growth the size of a golf ball on Tipton’s right kidney. New X-rays were made from which it was found that the growth had increased to the size of an average man’s head. He underwent kidney surgery in June of 1978, but ultimately died in October of that same year.

Plaintiff’s petition alleges that Dr. Rigby and Dr. Lewis collaborated and were negligent in their examination and interpretation of the test results made on her husband in 1977, which she contends resulted in his experiencing further pain and suffering and eventual death. She further alleges that defendants’ procedures and diagnosis deviated from the standard of care and degree of skill ordinarily employed under similar circumstances by medical practitioners in good standing with the Shreveport general community.

Plaintiff’s claim was reviewed by a Medical Review Panel pursuant to the provisions of La.R.S. 40:1299.41 et seq. The panel rendered an opinion on May 5, 1980, which concluded that the evidence did not support plaintiff’s charges that the defendants, Dr. Russell Rigby and Willis-Knighton Hospital failed to meet the applicable standard of care in treating Hollis Tipton, and that the conduct complained of was not a factor of the asserted resultant damages.

On December 4, 1980, plaintiff filed the instant suit against defendants, who subsequently filed a motion for summary judgment on January 7, 1981, alleging that there is no material issue of fact with regard to plaintiff’s allegations of negligence as against defendants. In support of their motion for summary judgment, defendants attached thereto a copy of the Medical Review Panel’s opinion. Plaintiff filed an answer to defendants’ motion denying the allegations thereof. No affidavits or other evidence in rebuttal of defendants’ motion were made.

On appeal, plaintiff contends the trial court erred in failing to recognize a true conflict in the evidence filed in response to the motion for summary judgment and in relying solely on the Medical Review Panel’s finding and ruling, rather than determining if a genuine issue of fact existed.

Appellees contend plaintiff’s response to the motion for summary judgment is inadequate to contradict the proof offered by defendants because plaintiff did not present any affidavits or other evidence to establish the required standard of care, or that defendants negligently failed to follow the required standard of care pursuant to La.R.S. 9:2794.

La.C.C.P. Arts. 966 and 967 contain the statutory provisions for summary judgment.

Art. 966 provides:

The plaintiff or defendant in the principal or any incidental action, with or without supporting affidavits, may move for a summary judgment in his favor for all or part of the relief for which he has prayed. The plaintiff’s motion may be made at any time after the answer has been filed. The defendant’s motion may be made at any time.
The motion for summary judgment shall be served at least ten days before the time specified for the hearing. The adverse party may serve opposing affidavits prior to the day of the hearing. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. Art. 967 provides in part:
Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would, be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or by further affidavits.
When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him.

A party seeking summary judgment has the burden of showing the complete absence of a genuine issue of material fact. All doubts as to the absence will be decided in favor of a trial on the merits and no summary judgment will be granted, even if the trial court has grave doubt regarding a party’s ability to establish disputed facts. City of Baton Rouge v. Cannon, 376 So.2d 994 (La.App. 1st Cir. 1979); Jones v. Ameri can Bank and Trust Company, 387 So.2d 1360 (La.App. 1st Cir. 1980). La.C.C.P. Art. 967.

On a motion for summary judgment, the court must first determine whether the supporting documents presented by the moving party are sufficient to resolve all genuine issues of material fact. If they are not sufficient, summary judgment must be denied. Only if they are sufficient does the burden shift to the opposing party to present evidence showing that material facts are still at issue; only at this point may he no longer rest on the allegations and denials contained in his pleadings. Sanders v. Hercules Sheet Metal, Inc., 385 So.2d 772 (La.1980); Jones v. American Bank and Trust Co., supra.

As provided for in La.R.S. 40:1299.-47(H) any report of the expert opinion reached by the medical review panel shall not be conclusive.

The entire thrust of defendants’ motion for summary judgment is based on the medical review panel’s opinion which by statute is not conclusive evidence. We find that the evidence presented by defendants’ motion is not sufficient to resolve all genuine issues of material fact.

For the foregoing reasons, the trial court judgment is reversed and the matter is remanded to the trial court for further proceedings. Costs of this appeal is assessed to appellees.

      . La.R.S. 9:2794
      A.In a malpractice action based on the negligence of a physician licensed under R.S. 37:1261 et seq., or a dentist licensed under R.S. 37:751 et seq., the plaintiff shall have the burden of proving:
      (1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians or dentists licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians or dentists within the involved medical specialty.
      (2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill, and
      (3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.
      B. Any party to the action will have the right to subpoena any physician or dentist either for a deposition and/or testimony for trial to establish the degree of knowledge or skill possessed or degree of care ordinarily exercised as described above without obtaining the consent of the physician or dentist who is going to be subpoenaed. The fee of the physician or dentist called for deposition and/or testimony under this Section will be set by the court.
      C. In medical malpractice actions the jury shall be instructed that the plaintiff has the burden of proving, by a preponderance of the evidence, the negligence of the physician or dentist. The jury shall be further instructed that injury alone does not raise a presumption of the physician’s or dentist’s negligence. The provisions of the Section shall not apply to situations where the doctrine of res ipsa loqui-tur is found by the court to be applicable.

      . La.R.S. 40:1299.47(H)
      Any report of the expert opinion reached by the medical review panel shall be admissible as evidence in any action subsequently brought by the claimant in a court of law, but such expert opinion shall not be conclusive and either party shall have the right to call, at his cost, any member of the medical review panel as a witness. If called, the witness shall be required to appear and testify. A panelist shall have absolute immunity from civil liability for all communications, findings, opinions and conclusions made in the course and scope of duties prescribed by this Part.


author: MARVIN, Judge.

text:
    Joseph R. LATTIER, Plaintiff-Appellee, v. DEPARTMENT OF PUBLIC SAFETY, Defendant-Appellant.
    No. 14593.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 25, 1981.
    Robert L. Roshto, Baton Rouge, for defendant-appellant.
    James B. Wells, Bossier City, for plaintiff-appellee.
    Before PRICE, HALL and MARVIN, JJ.
   MARVIN, Judge.

Lattier was adjudged an habitual offender under LRS 32:1472 before Act 347 of 1979, amending LRS 32:1479, became effective. This amendment requires an habitual offender to complete the 5-year suspension before becoming eligible for driving privileges.

The trial court ruled that the amendment would not be applied retroactively and allowed Lattier restricted driving privileges. Since that ruling, three of the four Louisiana appellate courts have held that the amendment will be given retroactive application. Hazley v. State through Dept. of Public Safety, 388 So.2d 115 (La.App. 1st Cir. 1980); Barron v. State, Dept. of Public Safety, 397 So.2d 29 (La.App.2d Cir. 1981); Wheeler v. State, Dept. of Pub. Safety, etc., 377 So.2d 539 (La.App.3d Cir. 1979).

The judgment appealed is reversed and plaintiff’s demands are rejected at his cost.


text:
    Maurice Joseph REDMOND and Mary Jean Parker Redmond, Plaintiffs-Appellants, v. NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURG, Pennsylvania, Defendant-Appellee.
    No. 14594.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 25, 1981.

      Blackwell, Chambliss, Hobbs & Henry by Larry Arbour, West Monroe, for plaintiffs-appellants.
    Hayes, Harkey, Smith & Cascio by Joseph D. Cascio, Jr., Monroe, for defendant-appel-lee.
    Before PRICE, HALL and MARVIN, JJ.
   PRICE, Judge.

Plaintiffs, Maurice Joseph Redmond and his wife Mary, appeal a district court judgment dismissing their suit against the National Union Fire Insurance Company, the “errors and omissions” insurer for the insurance agency of McKenzie & Mouk, Inc. After deciding that plaintiffs had failed to prove a negligent omission on the part of McKenzie & Mouk in failing to renew plaintiffs’ fire insurance policy, the district court granted defendant’s motion for a directed verdict. For the reasons hereinafter assigned, the judgment appealed is affirmed.

Redmond’s relationship with McKenzie & Mouk began in 1972 when he first obtained a policy covering his home through the agency. Redmond also obtained insurance through McKenzie & Mouk covering his vehicles and various rental properties owned by him. One of the properties so insured was a house located at 408 Washington Street in West Monroe, Louisiana.

On September 19, 1979, Redmond received the following letter dated September 17 from McKenzie & Mouk:

Dear Mr. Redmond:
This is to advise you that the insurance we now write on your dwelling at 408 Washington, West Monroe, Louisiana expires on October 26, 1979. The premium to renew this policy for $19,000 will be $181.00 for another year.
Please come by our office before October 26, 1979 to make full payment. Also, our accounting department shows a balance of $14.00 which must be cleared up before October 26, 1979.
Please come by and take care of this before the expiration date so we can renew without lapse in coverage.
Yours truly,
MCKENZIE & MOUK, INC.

Redmond testified that his business associate, Mrs. Evelyn Lee called his attention to the letter immediately upon opening it. Redmond telephoned the agency to inquire as to why his policy limits were being increased from $16,000 to $19,000. Redmond testified that he was transferred to three different ladies at the agency who he could not name. He was informed by the last unnamed lady that his increased policy limits were due to the rising price of building materials. After hearing this explanation, Redmond “told them to go ahead with the increase on the policy.”

Redmond made no payment to McKenzie & Mouk and had no further communication with them before November 12, 1979. On that day the house at 408 Washington was damaged by fire. When plaintiff called McKenzie & Mouk to report the loss, he was informed that his insurance policy on that property had expired by its own terms on October 26, 1979. This suit followed in March 1980.

Plaintiffs contend the trial court improperly granted the motion for directed verdict in that they had made out a prima facie case of negligence on the part of McKenzie & Mouk. Plaintiffs contend that through the years of doing business with McKenzie & Mouk a method of paying premiums only upon receipt of an invoice had been established. In view of this fact, plaintiffs contend they were reasonable in assuming after the telephone conversation of September 19 that their insurance would be renewed and they would be billed later. Plaintiffs further contend that the letter from McKenzie & Mouk dated September 17, 1979, was merely a solicitation to continue handling plaintiffs’ insurance needs.

The applicable law was stated in Porter v. Mutual Insurance Company, 357 So.2d 1234 (La.App.2d Cir. 1978), wherein this court cited the obligation of an insurance agent to use reasonable diligence in attempting to procure or renew insurance requested by a client:

In order to recover for loss arising out of the failure of an insurance agent to obtain insurance coverage, the plaintiff must prove: (1) an undertaking or agreement by the insurance agent to procure insurance; (2) failure of the agent to use reasonable diligence in attempting to place the insurance and failure to notify the client promptly if he has failed to obtain the insurance; and (3) the actions of the agent warranted an assumption by the client that he was properly insured.

Plaintiff testified that he began doing business with McKenzie & Mouk by making monthly premium payments of $40.00. He would occasionally receive an invoice for past due amounts but continued payments of $40.00 per month “would catch up with it over a period of time.” Although plaintiff increased his payments to $50.00 per month at one time in an effort to keep his payments current, he often received invoices for past due balances. Plaintiff’s method of paying a fixed monthly amount was apparently gradually abandoned. He testified that his business associate, Mrs. Lee, began paying solely upon receipt of the invoices over the several years preceding the expiration of the policy at issue in this case. Therefore, after receipt of the September 17,1979, letter and phone conversation with someone at McKenzie & Mouk, plaintiff testified that he “felt sure he would be invoiced.”

The facts of this case do not warrant a conclusion that plaintiff had reached an agreement with McKenzie & Mouk to renew his insurance policy covering the Washington Street house or that his reliance on this telephone conversation was a reasonable assumption that such was the case. Plaintiff admitted that no mention was made whatsoever about the payment of premiums during his conversation with the McKenzie & Mouk employee on September 19. This was despite the fact that the letter he had received clearly stated that the policy coverage would lapse unless the premium of $181.00 was received before October 26, 1979.

The record shows that plaintiff had, in fact, rarely concerned himself with insurance matters the last several years preceding this incident and was not personally familiar with the method of payment. It is clear that the payments that were made were frequently delinquent. This was not, in fact, the first time plaintiff had been warned of cancellation. Mrs. Lee had once before paid upon receipt of a 10-day cancellation notice. Plaintiff’s contention that the September letter was merely a solicitation for continued business is not consistent with the clear and unambiguous wording of the letter. The letter clearly requires full payment by October 26, 1979, of the next year’s premium, as well as the unpaid balance to insure renewal. It is not a reasonable assumption that this directive was modified in any manner after the telephone conversation with McKenzie & Mouk. Plaintiff could not identify the person he talked to, did not discuss premium payments, and did not know for a fact that the person with whom he was talking had any knowledge whatsoever of the letter.

Regardless of any prior method of payment plaintiff may have had with McKenzie & Mouk, the letter notifying him of a lapse in coverage unless he paid by October 26 served as a termination of any prior credit practices and put him on notice that the policy would not be renewed unless he took affirmative steps by October 26. His failure to comply with the request contained in the letter was tantamount to a waiver of any right he may have had to assume that practices of the past would be maintained.

It is our opinion that the record clearly shows by a preponderance of the evidence that, upon the facts and law, plaintiff has failed to show a right to relief and the motion for directed verdict was properly granted. See Gleason v. City of Shreve port, 393 So.2d 827 (La.App.2d Cir. 1981), writ denied 397 So.2d 806 (La.1981).

For the reasons assigned, the judgment appealed is affirmed at appellants’ costs,


author: MARVIN, Judge. HALL, Judge,

text:
    Dianne BROWN, Plaintiff-Appellee, v. SAMBO’S OF LOUISIANA, INC., Defendant-Appellant.
    No. 14595.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 25, 1981.
    Luffey, Price, Dunn & Sadler by Walter C. Dunn, Jr., Monroe, for defendant-appellant.
    Pipes & Pipes by Richard H. Pipes, Monroe, for plaintiff-appellee.
    Before PRICE, HALL and MARVIN, JJ.
   MARVIN, Judge.

In this action under the penalty wage statute, LRS 23:631, the defendant-employer, Sambo’s, appeals a judgment in favor of the plaintiff employee for 90 days wages, interest, and attorney fees. We agree with the defendant’s contention that the trial court erred in not allowing the defendant to introduce evidence and amend its pleadings about plaintiff’s taking tips that belonged to other employees after plaintiff was cross examined without objection and was re-examined by her own counsel on this point. CCP 1154.

After plaintiff worked one eight-hour shift as a waitress at defendant’s restaurant, the restaurant manager terminated plaintiff’s employment because he was displeased with plaintiff’s performance and apparently because plaintiff was alleged to have taken tips which belonged to other employees. Defendant’s answer generally denied that plaintiff had made demands for wages which were owed her and did not set forth any affirmative or equitable defense. CCP 1005.

During the trial of the case plaintiff testified that she had not received payment for working the one shift. On cross examination, plaintiff was questioned at length about the taking of tips which belonged to other employees and instructions given to her by supervisory employees against the taking of such tips. Plaintiff denied taking any tips and was re-examined by her own counsel about the taking of tips and the effect of the tip taking on plaintiff’s termination. When plaintiff concluded her case defendant indicated that other witnesses would be called to show that plaintiff took tips belonging to other employees. Plaintiff’s counsel then objected for the first time that defendant was attempting to raise an affirmative defense which had not been pleaded. The trial court denied defendant’s request to amend its answer under CCP 1154.

When evidence is introduced without objection on an issue not pleaded, the pleadings are deemed to have been enlarged or automatically amended by the implied consent of the parties. See DLJ of Louisiana No. 1 v. Green Thumb, Inc., 376 So.2d 121 (La.1979). In such circumstances, a formal amendment of the pleadings should be allowed under CCP 1154 because the amendment serves only a housekeeping purpose. Wexler v. Martin, 367 So.2d 111 (La.App. 4th Cir.1979). The effect of CCP 1154 is applicable even to affirmative defenses which must be specially pleaded. CCP 1005. Crump v. Crump, 393 So.2d 337 (La.App. 1st Cir.1980). Such an amendment can be allowed even after judgment. Wex-ler, supra.

Plaintiff did not object to the interjection of this defense and will not be prejudiced by an amendment to the pleadings or further evidence concerning the issue. The ultimate merits of this defense need not be anticipated. CCP 1154 allows plaintiff a continuance if plaintiff shows that she may be prejudiced by this procedure.

Accordingly, judgment below is reversed and the cause is remanded for further proceedings consistent with this opinion. Costs shall be assessed by the trial court when a judgment on the merits is rendered.

REVERSED and remanded.

HALL, J., concurs with written reasons.

HALL, Judge,

concurring.

On direct examination plaintiff testified her pay was to be the minimum wage of $3.10 per hour, offset by uniform cost, meals, and tips. She testified she received no tips on the day she worked. She was cross-examined, without objection, on the amount of tips she received, both on tables she worked and other tables.

Defendant was entitled to offer evidence as to the terms of plaintiff’s employment, the manner in which tips were to be handled, and the amount of tips received by plaintiff, as a matter of determining whether any wages were due to the plaintiff under the terms of employment. When plaintiff offered evidence concerning the manner in which she was to be paid, which varied from the terms of employment pleaded by both parties, the pleadings were automatically enlarged under LSA—C.C.P. Art. 1154 and the trial court erred in prohibiting the defendant from offering evidence as to the amount of tips collected by plaintiff.

I concur in the remand.


author: JASPER E. JONES, Judge.

text:
    Robert R. GARNER, Plaintiff-Appellee, v. Howard Dale PERRIN, Defendant-Appellant.
    No. 14596.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 25, 1981.

      S. V. Prunty, Jr., John A. Files, Shreveport, for plaintiff-appellee.
    Love, Rigby, Dehan, Love & McDaniel, Shreveport, for defendant-appellant.
    Before PRICE, JASPER E. JONES and FRED W. JONES, JJ.
   JASPER E. JONES, Judge.

Defendant, Howard Dale Perrin, appeals a judgment against him in the amount of $8,100 in favor of plaintiff, Robert R. Garner, for rent in the amount of $300 per month for 27 months on Scooter’s Bar and Lounge. Plaintiff, in a written lease, leased the bar to defendant for a period commencing March 13, 1973 through March 12, 1974 for a monthly rental of $300. Defendant paid the monthly rental provided in the lease, but paid no rent for his occupancy of the bar subsequent to March 12,1974, the date upon which the written lease expired. Defendant continued to occupy the leased premises following the expiration of the written lease until May 23, 1976, when he vacated the premises pursuant to an eviction judgment rendered in an eviction suit filed November 3,1975. Plaintiff alleged in his eviction suit that he had given defendant written notice to vacate the premises and attached to said eviction suit the following copy of the eviction notice:

“October 9, 1975
Mr. Howard Dale Perrin
Frierson Road
Stonewall, La. 71078
Scooter’s Bar & Lounge
Highway 171 on the Mansfield Road
At Caddo/DeSoto Parish Line
Keithville, La. 71047
RE: Notice to vacate premises
Dear Mr. Perrin:
As you know, your March 13,1973 lease of the premises situated on the Mansfield Road, near Keithville, Louisiana, known as “Scooter’s Bar & Lounge” has expired. You have paid no rent since March, 1974. You have no right to occupancy. I desire to obtain possession of my premises.
I allow you five (5) days from the delivery of this formal notice for you to vacate the leased premises.
Sincerely,
Robert R. Garner/s
Robert R. Garner
RRG”

Plaintiff filed this suit styled “Petition For Past Due Rent” on September 26, 1977. Defendant filed exceptions of no cause of action and prescription, both of which were overruled by the trial judge. Defendant contends the petition does not state a cause of action because there was no contract of lease between plaintiff and defendant during the period for which the rent is sought, and he alternatively contends that if there was rent owed that all rent which became due more than three years before the suit for collection of the past due rent was filed on September 26,1977, has prescribed under the provisions of LSA-C.C. art. 3538.

The trial judge found plaintiff was entitled to recover under “quasi contract or quantum meruit.”

Defendant assigns as error the trial court’s overruling of his exception of no cause of action contending that the petition and evidence presented did not establish a lessor-lessee relationship covering the period for which the rent award was made. Appellant contends in the alternative that his exception of prescription should have been sustained insofar as it applied to all rent due prior to September 26, 1974.

The law applicable to the issue of whether a lease continued subsequent to the expiration of the written lease between the litigants is contained in the following articles of the Civil Code:

1. LSA-C.C. art. 2689 — If the tenant either of a house or of a room should continue in possession for a week after his lease has expired, without any opposition being made thereto by the lessor, the lease shall be presumed to have been continued, and he can not be compelled to deliver up the house or room without having received the legal notice or warning directed by article 2686.
2. LSA-C.C. art. 2686 — The parties must abide by the agreement as fixed at the time of the lease. If no time for its duration has been agreed on, the party desiring to put an end to it must give notice in writing to the other, at least ten days before the expiration of the month, which has begun to run.
3. LSA-C.C. art. 2685 — If the renting of a house or other edifice, or of an apartment, has been made without fixing its duration, the lease shall be considered to have been made by the month.

In Governor Claiborne Apartments, Inc. v. Attaldo, 256 La. 218, 235 So.2d 574 (1970), the court made the following statement regarding the application of these articles to an expired written lease:

“Under our Civil Code provisions based on these articles of the Code Napoleon, legal reconduction takes place when a fixed-term lease expires and the lessee without opposition continues to occupy the premises for more than a week. The reconducted lease is actually a continuation of the lease under the same terms and conditions except that the fixed term or period of duration in the old lease is voided and the reconducted lease is considered to be by the month.” Id. 235 So.2d at 576.

In the case of Becker & Assoc., Inc. v. Lou-Ark Equip. Rent. Co., Inc., 331 So.2d 474 (La.1976), the court recognized that the lease reconducted continues until put to an end in the manner provided for by LSA-C.C. art. 2686, unless otherwise provided for by the terms of the lease contract. The court there stated:

“Under La.C.C. art. 2686, the presumed continuance of a lease by operation of law from month to month, resulting from holding over without notice, is called ‘tacit reconduction.’ The effect of such a continuance is not to constitute a new lease each month or even to renew the old one, but rather to continue the original lease. Weaks Supply Co. v. Werdin, 147 So. 838 (La.App.2d Cir. 1933). Cf. Governor Claiborne Apartments, Inc. v. Attaldo, 256 La. 218, 235 So.2d 574 (1970). Accordingly, the month to month lease in the instant case did not terminate each month but endured continuously until put to an end in the manner provided by La.C.C. art. 2686 or by the lease contract.” Id. at 477.

There is no evidence in the record which tends to establish that plaintiff opposed possession of the leased premises by defendant during the first week that defendant continued to possess the leased premises following expiration of the lease.

The only evidence in the record of any contact between plaintiff and defendant during the time frame of one week following the expiration of the written lease is contained in the following testimony:

“Q. Did he come by and offer to make any payment?
A. The best I remember the only mention of the rent was the last day of the lease, i went by there and asked him if he was going to be able to get out on that date. Well when I walked in the door he nodded and said ‘what did you do, come by to get the rent.’ ” Id. tr. 78.

The statement of plaintiff to defendant “I asked him if he was going to be able to get out on that date” does not amount to opposition to defendant retaining possession for one week after the lease expired. There is no evidence that plaintiff made any other statement to defendant or wrote him any letter or took any other positive action to establish his opposition to defendant maintaining possession of the leased premises during the week immediately following the expiration of the lease. There is testimony in the record which alludes to an eviction suit which was filed at some time prior to the eviction suit of November 3, 1975, but the evidence indicates that this first filed eviction suit was dismissed. There are no details as to when the first eviction suit was filed, nor what the circumstances were surrounding the filing or dismissal of this eviction suit.

Because defendant retained possession of the leased premises for more than one week following the expiration of the written lease without any opposition during this period by plaintiff, under the provisions of LSA-C.C. arts. 2685, 2686, and 2689, a month by month lease commenced on March 13, 1974 which continued until terminated by the written notice of October 9, 1975.

The notice to cancel the lease was not given under the provisions of LSA-C.C. art. 2686. The provisions of Art. 2686 require the notice to be at least ten days before the expiration of the month which has begun to run, and the notice given on October 9th would not have been ten days before October 12th, and the notice given would normally have terminated the lease on the end of the following month, or on November 12. Plaintiff was not required to continue the lease until November 12 because defendant had violated the terms of the lease by failing to pay the rent. The notice of eviction was given for nonpayment of rent since March 1974, and demanded that possession be surrendered five days from receipt of the notice.

LSA-C.C. art. 2712 provides that the lessee may be expelled for nonpayment of rent. LSA-C.C. art. 2729 provides that the lease may be dissolved if the lessee fails to comply with the terms of the lease. The month by month lease requires the payment of the rent each month as was required by the written lease. Plaintiff effectively can-celled the lease for nonpayment of rent effective October 14th, the date upon which he demanded possession by his letter of October 9th.

In Cameron v. Krantz, 299 So.2d 919 (La.App.3d Cir. 1974), the court stated:

“Our conclusion is that Cameron’s failure to pay rental payments as provided in the lease contract constituted a breach of that contract, and that in view of that breach the lessor has the right to terminate the lease and to evict the lessee from the premises. Cameron did not have the right to retain possession of the premises after the lease was terminated. We think the lease was terminated as of February 20, 1973, that being the date on which Cameron received formal notice that the lessor had exercised his right to terminate the lease.” Id. at 922.

Defendant owes rent under the terms of the month by month lease that continued by reconduction from March 13, 1974 until the last month’s lease was terminated for nonpayment of rent on October 14, 1975.

Defendant continued to occupy plaintiff’s premises following termination of the lease until October 23, 1976, and he owes plaintiff $300 per month for each month of his occupancy subsequent to the termination of the lease. Verneuil v. Harper, 28 La.Ann. 893 (1876); Harvey v. Pflug, 37 La.Ann. 904 (1885); Jackson Brewing Co. v. Wagner, 123 La. 798, 49 So. 529 (1909); Meyer v. Succession of McClellan, 30 So.2d 788 (Orl.La.App. 1947); Faroldi v. Nungesser, 144 So.2d 568 (La.App. 4th Cir. 1962); Groghan v. Billingsley, 313 So.2d 255 (La.App. 4th Cir. 1975); and Becker, supra.

In Becker, supra, the court annulled a lease because of error and held that the lessor was entitled to rent for the leased equipment based upon unjust enrichment. The court there stated:

“However, the principle of unjust enrichment, embodied in our Civil Code art. 1965 requires that Lou-Ark be compensated in the amount of the fair rental value of the equipment for the period it was in Becker’s possession. Accordingly, it is necessary that we remand the case to the trial court to determine precisely this value.” Id. at 477, 478.

The theory of recovery by the lessor for rent for the lessee’s possession of the premises following the termination of the lease is the doctrine of unjust enrichment, though some of the earlier cases cited do not articulate the legal theory upon which the lessor was granted recovery for the value of the occupancy by the tenant of the leased premises following the expiration of the lease. The fair rental value of Scooter’s Bar is established by the written lease at $300 per month.

The rent which had become due on the 13th day of March, April, May, June, July, August, and September of 1974, was all past due for a period of more than three years at the time plaintiff filed his suit for past due rent on September 26, 1977. LSA-C.C. art. 3538 provides:

“The following actions are prescribed by three years:
That for arrearages of rent charge, $ $ $11

Plaintiff contends that prescription was interrupted by the filing of his suit for eviction on November 3, 1975. Plaintiff relies upon the provisions of LSA-R.S. 9:5801, which provides:

“All prescriptions affecting the cause of action therein sued upon are interrupted as to all defendants, including minors or interdicts, by the commencement of a civil action in a court of competent jurisdiction and in the proper venue. When the pleading presenting the judicial demand is filed in an incompetent court, or in an improper venue, prescription is interrupted as to the defendant served by the service of process.”

The eviction suit did not contain a demand for the past due rent which was the cause of action sued upon in this suit, and for this reason the eviction suit did not interrupt prescription on the rent which had been due for more than three years at the time this suit was filed on September 26, 1977.

The case of Alfred Hiller Co. v. Hotel Grunewald Co., 138 La. 305, 70 So. 234 (1914), relied upon by plaintiff, is totally distinguishable from the instant case because there the court held that an earlier suit against a contractor on the same cause of action interrupted prescription on the suit against the defendant on the same cause of action because the contractor and the defendant were obligated in solido on the obligation sued upon.

The defendant has not paid for the occupancy of the leased premises for the period from March 13, 1974 until May 23, 1976, which is a period of 26V3 months, which calculated on the basis of $300 per month results in defendant having failed to pay $7,900. The rent which became due on the 13th of March, April, May, June, July, August, and September of 1974, or the sum of $2,100 has prescribed. Plaintiff is entitled to a judgment against defendant for $5,800.

We amend the judgment to recast the second paragraph to read:

“IT IS ORDERED, ADJUDGED and DECREED that there be judgment herein in favor of Robert R. Garner, the plaintiff, and against Howard Dale Perrin, the defendant, in the full sum of Five Thousand Eight Hundred and No/100 ($5,800.00) Dollars, with legal interest from date of judicial demand until paid, and for all costs of these proceedings.”

As AMENDED, the judgment is AFFIRMED at appellant’s cost.


author: FRED W. JONES, Jr, Judge.

text:
    SPRINGHILL BANK & TRUST COMPANY, Plaintiff-Appellant, v. Denvil L. GISH, Defendant-Appellee.
    No. 14597.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 25, 1981.
    Fish, Montgomery & Robinson by Roy M. Fish, Springhill, for plaintiff-appellant.

      Rice & McWilliams by John Ford McWil-liams, Jr., Shreveport, for defendant-appel-lee.
    Before PRICE, JASPER E. JONES and FRED W. JONES, Jr, JJ.
   FRED W. JONES, Jr, Judge.

Plaintiff bank sued the defendant merchant for recovery of the amounts of two checks, allegedly credited to defendant’s store account, on which payment was stopped by the maker. From a judgment in favor of defendant, plaintiff appeals. We affirm.

According to the record, for some eight years the defendant Gish operated a retail business under the name of “Gish’s General Store” in the rural community of Sarepta. In May 1980 Gish agreed to sell his store business to Kenneth Smith and Barry Gill. Consideration for the transfer was to be the construction by Smith and Gill of two houses for Gish. The transaction was to be consummated upon completion of the houses. It was understood that, in the interim, Smith and Gill would familiarize themselves with the store business by assisting in its operation, with Gish continuing in control. Receipts from sales were to be used primarily to increase the inventory level, which Gish had allowed to decline.

On May 19, 1980, Smith’s wife, Debbie, and Gill (using the name “Barry Hill”) opened a checking account with plaintiff bank in Springhill in the name of “Gish’s General Store”, describing themselves as the owners of the business. They deposited the sum of $912.71, taken from Gish’s store receipts without his knowledge or consent. Gish did not have an account with plaintiff bank and, of course, did not authorize the opening of this account. His name did not appear on the account card.

The account in question remained active for several weeks, with numerous deposits and withdrawals, all without the knowledge of Gish. Among the checks stolen from Gish and deposited in the account were the two which are the subject of this litigation. Both were made by Mrs. James E. Watters and were drawn on the First State Bank & Trust Company, Carthage, Texas. The first was dated June 24, 1980, for $200, payable to “cash”. The second was dated June 26, 1980, for $266.23, payable to “Gish Building”. Each was stamped on the back “for deposit only, Gish General Store.” They were subsequently returned to plaintiff by the Texas drawee bank stamped “payment stopped.” By that time, however, the account had been closed out. Consequently, plaintiff could not charge back against the account the credit previously given for these dishonored checks. Both Smith and Gill had disappeared. This suit was then brought by the plaintiff bank against Gish to recover the amounts represented by the dishonored checks.

Plaintiff contends that the trial judge erred in not allowing it recovery from Gish under La.R.S. 10:3-507(2), which provides:

“Subject to any necessary notice of dishonor and protest, the holder has upon dishonor an immediate right of recourse against the drawers and indorsers.”
We reject this argument.

La.R.S. 10:3-401 stipulates that:

“(1) No person is liable on an instrument unless his signature appears thereon.
“(2) A signature is made by use of any name, including any trade or assumed name, upon an instrument, or by any word or mark used in lieu of a written signature.”

An unauthorized signature or endorsement is defined in La.R.S. 10:1-201 as “one made without actual, implied or apparent authority.”

La.R.S. 10:3-404(1) provides that “an unauthorized signature is wholly inoperative as that of the person whose name is signed unless he ratified it or is precluded from denying it.”

In this case it was Gish’s unrefut-ed testimony that he had not authorized anyone to remove checks which had been received in his personal or business transactions, nor to endorse his checks, nor to open a store checking account in plaintiff bank. Gish’s signature does not appear on the back of the dishonored checks. Clearly, the endorsements thereupon were without his knowledge or consent. Gish is not precluded from denying the unauthorized endorsements since his actions did not substantially contribute to their making, i. e., Gish was not negligent simply because he gave Smith and Gill access to his cash register since he believed in good faith that they were going to acquire his business. Since Gish never knowingly assented to the endorsements by express words or conduct, he did not ratify those endorsements. Consequently, we find that the trial court correctly held the defendant not liable for the face amounts of the dishonored checks.

For the reasons set forth, the judgment of the trial court is affirmed, at appellant’s cost.


author: FRED W. JONES, Judge.

text:
    SUCCESSION OF Mattie Stewart JEFFRESS.
    No. 14606.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 25, 1981.
    Robert W. Levy, Ruston, for appellants, Tommie Dean Hearne, Edward M. Calloway and Dorothy Jo Allen.

      Hudson, Potts & Bernstein by Paul K. Kirkpatrick, Jr., Monroe, for appellee, Testamentary Executrix Lucille Stewart Harrison.
    Before PRICE, MARVIN and FRED W. JONES, JR., JJ.
   FRED W. JONES, Judge.

Tommy Dean Hearne, Edwin M. Callo-way and Dorothy Jo Allen, legatees under the last will and testament of the decedent, Mattie Stewart Jeffress, appeal a judgment sustaining an exception of lack of jurisdiction over the subject matter and dismissing their suit insofar as it related to the ownership of immovable property located in Texas. We affirm.

Mattie Stewart Jeffress died testate on September 7, 1979 while domiciled in Jackson Parish, Louisiana. Her will was probated in the district court for that parish on October 11,1979. Lucille Stewart Harrison, decedent’s niece, was appointed testamentary executrix.

The will in question contained a legacy to appellants of the decedent’s “interest in the W.D. Jeffress Estate, both real, personal, and otherwise.” Included in this legacy was immovable property located both in Louisiana and in Texas.

On June 6, 1980 appellants filed in the succession proceedings a pleading styled “petition for possession and declaratory relief,” alleging that they were bequeathed decedent’s “interest in the W.D. Jeffress Estate”; that the described estate consisted of immovable property situated in Jackson Parish, Louisiana and Hidalgo County, Texas; and that petitioners were entitled to a judgment recognizing them as owners of the specifically described immovable property, including that in Texas.

The testamentary executrix filed an exception to the subject matter jurisdiction of the court insofar as the petitioners sought to be declared owners of the property located in Texas. The trial judge sustained the declinatory exception and dismissed the suit to the extent requested.

Appellants concede that the district court was without power to place them in possession of immovable property located in Texas. They argue, however, that the trial judge erred in holding that his court was without jurisdiction to interpret the term “W.D. Jeffress Estate.”

Jurisdiction is defined in Louisiana as “the legal power and authority of a court to hear and determine an action or proceeding involving the legal relations of the parties, and to grant the relief to which they are entitled.” La.C.C.P. Art. 1.

Subject matter jurisdiction is “the legal po'.ver and authority of a court to hear and determine a particular class of actions or proceedings, based upon the object of the demand, the amount in dispute, or the value of the right asserted.” La.C.C.P. Art. 2. This is the counterpart of the French concept of “competence ratione materiae.”

The allegations of a petition must be deemed true for the purpose of disposing of an exception of this nature. State v. Noe, 186 La. 102, 171 So. 708 (1936).

After carefully examining appellants’ petition, we agree with the trial judge that the object of the demand or the subject matter of the suit was, among other things, a request to be recognized as owners of and to be placed in possession of immovable property located in Texas. The trial judge correctly ruled that his court had no power to grant this request because it had no jurisdiction over the subject matter.

Contrary to appellants’ assignment of error, the lower court did not hold that it was without jurisdiction to interpret a will provision. In his written opinion the trial judge noted that under the pleadings filed by petitioners this issue was not before him, i. e., this was not the subject matter of the suit. He was correct in this ruling. We are also unable to discover in the petition filed by appellants in the trial court any allegations of fact asserting that the term “W.D. Jeffress Estate” was ambiguous or required interpretation.

For these reasons, we affirm the judgment of the trial court at appellants’ cost.


text:
    Troy CULP d/b/a Arkansas Stone Company, Plaintiff-Appellant, v. James E. BEARDEN, Defendant-Appellee.
    No. 14607.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 25, 1981.
    Ford & Avants by Percy A. Ford, Jr., West Monroe, for plaintiff-appellant.
    Truet West, Farmerville, for defendant-appellee.
    Before PRICE, MARVIN and FRED W. JONES, Jr., JJ.
   PRICE, Judge.

Plaintiff, Troy Culp d/b/a Arkansas Stone Company, sued defendant, James E. Bearden, for recovery of the purchase price of a fireplace. Defendant answered that the fireplace was defective and unfit for the use for which it was intended and prayed for rescission of the sale. From a judgment rejecting his demand and rescinding the sale, plaintiff appeals, we reverse upon a finding that the trial court’s conclusion that the fireplace was defective is clearly wrong and not supported by substantial evidence in the record.

Plaintiff is the owner of a business in West Monroe specializing in the sale of masonry supplies, stone, and fireplace equipment. On November 14, 1979, he sold a fireplace marketed under the brand name “Preway Provider” to defendant for the sum of $669.50. The fireplace is sold disassembled with instructions for installation provided by the manufacturer. Plaintiff asked defendant if he wished to have the fireplace installed and was informed that defendant had already made other arrangements for installation. The fireplace was picked up at plaintiff’s place of business by defendant’s son and after plaintiff checked to insure that the installation instructions were in the box, Delane Bearden took the fireplace to his father’s house in his pickup.

Defendant had directed one of his employees, Raymond McMurty, to install the fireplace. Defendant’s house was originally constructed with a flat roof covered with tar and “pea gravel.” Subsequently, the original roof was covered with a more conventional sloped or gable roof. This new roof line created an “attic” space between the old tar roof and the new exterior sloped roof. McMurty installed the fireplace against an outside wall with the stack from the fireplace extending through the ceiling and old roof line into a fire “support box” which was installed in the attic space. At this point another pipe joined the stack from the fireplace and extended on through the exterior roof line.

McMurty encountered difficulties with the installation from the outset. Apparently because of the proximity of the fireplace to the outside wall, McMurty discovered that he had an insufficient area between the old and new roof lines for installation of the stovepipe. He was supplied with a fire support box by plaintiff which was described by McMurty as a small square box approximately 10 to 12 inches high which apparently was to receive the stovepipe from the ceiling. Since the area in the “attic” directly above the stovepipe was only 6 to 8 inches high, McMurty altered the support box by trimming it two inches.

When McMurty first attempted to cut a hole in the ceiling for the stovepipe, he struck a ceiling joist or support and had to remove the ceiling opening over several inches. Although the testimony is somewhat less than clear, this apparently resulted in the two stovepipes joining at an angle. McMurty testified that he was not satisfied with the fireplace as assembled “mainly on account of the way the two pipes went together.”

Plaintiff testified that he was aware of McMurty’s problems with the installation and had reassured him that the fireplace would work in defendant’s house. Plaintiff testified that he had furnished defendant with one support box for the installation but nevertheless took a second one to defendant’s house after McMurty had stated that he had not received the first box. Plaintiff testified that he saw the fireplace after it had been installed at defendant’s house and noticed that the fireplace was installed improperly in his opinion. Plaintiff stated that the fireplace was sitting on a stack of loose, unmortared bricks and the stovepipe appeared to be slanted from the top of the fireplace to the ceiling.

One night, in late November 1979, shortly after the fireplace was installed, a fire ignited in the attic space directly above the stovepipe of the fireplace. Delane Bearden, defendant’s son, and his brother-in-law picked up the fireplace and carried it into the yard while defendant extinguished the fire in the attic with a water hose. Christine Bearden, defendant’s wife, testified that the fire in the fireplace that evening was not of unusual size. She did admit however that defendant had noticed the fire was not heating the house like it should so some additional pine wood was added to the point where the fire was “burning good.” Mrs. Bearden stated that the piping from the fireplace to the ceiling was “glowing hot” immediately prior to the discovery of the flames in the attic. Defendant did not testify at the trial.

The trial court denied plaintiff’s demand for recovery of the sales price and ordered the sale rescinded upon finding that the fireplace was not fit for the use intended. Although the fireplace was suitable “so far as the court knows for a normal installation,” the trial court held that plaintiff was aware of the particular characteristics of defendant’s house and the type fireplace required to suit those needs and, therefore, breached his warranty obligation when the fireplace proved unsuitable for defendant’s house.

The applicable codal provisions are the following:

Art. 2520. Redhibition, definition. Red-hibition is the avoidance of a sale on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice.
Art. 2529. Seller’s mistaken declaration as to quality of thing. A declaration made in good faith by the seller, that the thing sold has some quality which it is found not to have, gives rise to a redhibition, if this quality was the principal motive for making the purchase.

The issue on appeal is whether defendant, in his defense against plaintiff’s action for the price of the fireplace, carried his burden of proving that the fireplace was unfit or unsuitable for installation in defendant’s house despite plaintiff’s representations to the contrary. Plaintiff contends that the fireplace was installed improperly and not in accordance with the manufacturer’s instructions. Defendant on the other hand, through his employee, McMurty, insists that the instructions were properly followed. Implicit in the trial court’s conclusion is a finding that McMurty did install the fireplace according to the instructions. We find this to be clearly wrong or manifestly erroneous and therefore reverse.

Defendant declined plaintiff’s offer to install the fireplace choosing instead to rely on the services of Raymond McMurty, a full-time employee of defendant who had never before installed a “Preway Provider” fireplace. McMurty testified that he followed the instructions “as he went along” although he admitted that he did not check the parts list before beginning to determine if all necessary parts were included. McMurty stated that he “followed the pamphlet” and Christine Bearden testified that McMurty installed the fireplace according to an instruction manual with color photographs. Plaintiff’s testimony indicates that the instruction manual referred to by McMurty and Mrs. Bearden was not the factory instructions which were included, but rather a brochure that plaintiff regularly gave to his customers.

McMurty testified that the fireplace was installed in a corner of defendant’s house. There was a discrepancy in the testimony as to the distance that was allowed between the fireplace and the walls. The trial court noted that McMurty mentioned three feet as the proper distance between the fireplace and the walls, whereas Mrs. Bearden indicated the distance was somewhere between one foot and 18 inches. Jeff Lowe, sales representative for Preway fireplaces, testified that although he was not sure as to the exact distance, he did state that the fireplace was a “free standing” fireplace and was not meant to be “flush to the wall.”

McMurty admits he was concerned about the installation in part because the stovepipe from the fireplace entered the ceiling at an angle instead of vertically. This could cause an improper seating with the vertical pipe running from the support box out of the roof line. The fact that the fire which forms the basis of this complaint broke out in the attic could be explained by sparks or heat escaping at the joint of these two pipes.

As already stated, this suit turns on a determination of whether the instructions were complied with and both parties make frequent reference to them. Reference to the instructions in relation to the witnesses’ testimony would have been particularly illuminating to the trial court. However, the instructions were never introduced in evidence and form no part of the record on appeal. Without more than the conflicting testimony presented, it is abundantly clear that defendant has failed to prove by a preponderance that the fireplace was properly installed in accordance with the instructions. We therefore must conclude that the trial court’s finding to the contrary is clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

For the reasons assigned, the judgment appealed is reversed. There being sufficient evidence in the record to support plaintiff’s main demand, there is now judgment in favor of plaintiff and against defendant for the unpaid purchase price of Six Hundred Sixty-Nine and 50/100 ($669.50) Dollars, together with legal interest thereon from date of judicial demand until paid and all costs of these proceedings including cost of this appeal.


text:
    Rosena C. BOWMAN, Plaintiff-Appellee, v. STATE of Louisiana, OFFICE OF EMPLOYMENT SECURITY and Grambling State University, Defendants-Appellants.
    No. 14608.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 25, 1981.

      James D. Caldwell, Baton Rouge, for defendant-appellant, Grambling State University.
    Charles E. Grey, Jr., Asst. Atty. Gen., for defendant-appellant, Grambling State University.
    James A. McGraw, Baton Rouge, for defendant-appellant, Office of Employment Sec.
    Law Offices of Bobby L. Culpepper by Jimmy C. Teat, Jonesboro, for plaintiff-ap-pellee.
    Before PRICE, MARVIN and FRED W. JONES, Jr., JJ.
   PRICE, Judge.

A discharged employee of Grambling State University was held disqualified for unemployment compensation benefits because of misconduct connected with the employment. La.R.S. 23:1601(2). This decision was upheld by both the appeals referee and the Board of Review. Claimant then appealed to the district court which reversed the Board of Review on finding that as a matter of law the claimant’s conduct did not constitute misconduct. The state appeals the decision, contending the district court did not apply the proper standard of judicial review, and that the Board of Review was correct in finding sufficient evidence of misconduct. La.R.S. 23:1634, 1601(2). We reverse.

Before her discharge claimant was employed as the personnel director for Gram-bling State University. She was assigned the task of designing plans for organizing and more efficiently operating the personnel office. Despite repeated admonitions from her supervisor to complete this task, claimant failed to make any significant progress with the plans. In addition, claimant closed her office without authorization for one and one-half days in January 1980. These facts formed the basis of the appeals referee’s decision that claimant was guilty of misconduct so as to disqualify her from receiving unemployment compensation benefits.

The trial court held that the additional duties and responsibilities necessary for the organization of the personnel office were not part of claimant’s customary scope of employment. The failure to accomplish her task was due to either lack of time, manpower, or incompetence, rather than a deliberate disregard of her duties. It further held that claimant was justified in closing the office in January 1980 because of paint and glue fumes which presented health hazards.

The record shows that on January 17, 1980, at 11:00 a. m. claimant was given permission by her supervisor to close her office until 1:00 p. m. that day because of paint and glue fumes occasioned by fresh paint and newly installed carpet in the building where she worked. Claimant closed the office, allowed her employees to leave, and did not return at 1:00 p. m. as instructed. The office remained closed the next day. Claimant did come in for a couple of hours on the afternoon of the following day to conduct some business. She testified she had permission from the supervisor to leave the office closed for this period. The supervisor denies claimant’s testimony in this regard. The agency interpreted this contradictory testimony in favor of the employer. Where more than one reasonable interpretation or construction can be drawn from the evidence, the courts should accept the construction or interpretation made by the agency. Heard v. Doyal, 259 So.2d 412 (La.App.2d Cir. 1972).

Misconduct under the law is a deliberate violation of the employer’s policies and rules or a substantial disregard of the employer’s interest or of the employee’s duties. Heard v. Doyal, supra. It is determined by the nature of the violation with due consideration of the factors which enter into the proper conduct of the employee’s business. Jackson v. Doyal, 198 So.2d 469 (La.App.2d Cir. 1967). The scope of judicial review by the courts is limited to questions of law and to the question of whether the decision is supported by “sufficient evidence” (La.R.S. 23:1634).

Claimant’s closing of her office for one and one-half days was a direct violation of her supervisor’s orders. This act of disobedience is sufficient to constitute misconduct under the law.

The trial court erred in overruling the Board of Review’s decision that there was sufficient evidence of misconduct to disqualify claimant from receiving unemployment compensation benefits.

For the foregoing reasons, the judgment of the trial court is reversed and the decision of the Board of Review and appeals referee affirming the disqualification of claimant for benefits under the Louisiana Employment Security Law is reinstated.