author: LOBRANO, Judge.

text:
    Mrs. Marie BROWN, et al. v. Emile A. SOUPENNE, et al.
    No. 12785.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 11, 1982.
    Rehearing Denied July 16, 1982.

      René A. Curry, Jr., New Orleans, for appellees.
    Kerry E. Shields, Keaty & Keaty, New Orleans, for appellants.
    Milton E. Brener, Garon, Brener & McNeely, New Orleans, for appellee, Emile A. Soupenne.
    Before REDMANN, LOBRANO and AUGUSTINE, JJ.
   LOBRANO, Judge.

On January 28, 1977 Mrs. Marie Brown instituted these proceedings seeking damages for injuries she sustained as a result of an accident that occurred on June 30, 1976 at the premises 1428 Marigny Street. The original suit was filed against Emile A. Soupenne (Soupenne) the owner of the premises. However, on January 15, 1979 plaintiff amended her suit adding J. W. Stroughter, individually and d/b/a J. W. Stroughter and Associates Realty (Stroughter) as parties defendant. Her amended petition alleged that Stroughter was Soupenne’s agent in the management of the subject property, and as such breached his obligations which resulted in her injuries. Soupenne third partied Stroughter, Stroughter third partied Soupenne, and they both third partied Eddie Brown, Jr., the lessee of the premises. During the pen-dancy of the proceedings Mrs. Brown died and her heirs were substituted as parties plaintiff. Additionally, they amended the suit to allege a cause of action on their own behalf for the wrongful death of Mrs. Marie Brown. On March 31,1980 Stroughter filed a peremptory exception of prescription on the grounds that he was made a defendant more than one year from the accident date of June 30, 1976. This exception was denied by the trial court on April 15, 1980.

The matter was tried before a jury in March, 1981. After the close of plaintiff’s case, the trial judge granted defendants’ motion for a directed verdict on the wrongful death cause of action. At the conclusion of the trial the jury found Stroughter responsible for the injuries sustained by plaintiff, and awarded her estate damages in the amount of $35,000.00. All other parties were exonerated from responsibility. Thereafter, Stroughter reurged his peremptory exception of prescription on the basis that since Soupenne was not liable, he (Stroughter) was not a joint tort feasor, nor a solidary obligor with Soupenne, and therefore prescription was not interrupted. The trial court sustained his exceptions, and dismissed appellants’ case.

The heirs of Marie Brown perfected this appeal urging the following errors:

a) The Court failed to instruct the jury that Stroughter was bound in accordance with the pronunciations of Loescher v. Parr, 324 So.2d 441 (La.1975).
b) The Court erred in granting a directed verdict dismissing the wrongful death claim.
c) The peremptory exception of Stroughter was improperly maintained.
d) The Court erred in excluding from evidence the statement of Charity Hospital.

Facts

Emile A. Soupenne purchased the property at 1426-1428 Marigny Street sometime in 1964. When his wife passed away in December of 1971 he engaged the services of J. W. Stroughter to collect the rent from said property and to “manage” same. Being a postal worker he had to work 10 to 12 hours a day and did not have the time to handle it himself. He chose Mr. Stroughter because he (Stroughter) was handling similar rental property for Soupenne on La-harpe Street. The agreement between Soupenne and Stroughter is best characterized as a managerial contract, whereby Stroughter would collect the rent, receive complaints from tenants, notify the owner of same, and make the necessary repairs if agreed to by the owner. His commission was fixed at 10% of the rent collected. There is some dispute as to whether he received a fee for arranging whatever repair work might be needed.

Sometime in 1972, Stroughter leased the premises 1428 Marigny St. to Eddie Brown, Jr. and his wife. The record shows that on June 30, 1976, Mrs. Marie Brown, while visiting her daughter-in-law, either fell through a rotten floor in the washroom area of the building or fell through a preexisting hole that had been covered with a carpet or linoleum. Eddie Brown, Jr. testified that there was no pre-existing hole in the floor, whereas the allegations of Mrs. Brown’s original petition states that she feli through a hole in the floor that was covered with a rug. In either case, the fall caused her injuries which resulted in the instant case.

We are not unmindful of our duties as set forth in Canter v. Koehring, 283 So.2d 716 (La.1973), and Arceneaux v. Domingue, 365 So.2d 1330 (La.1978) but in those situations wherein a jury finding is based on an erroneous or incomplete jury charge, we are bound to set aside the judgment which implemented that jury verdict and determine the issues as a matter of first impression. Gonzales v. Xerox Corporation, 320 So.2d 163 (La.1975). Beck v. Lovell, 361 So.2d 245 (La.App. 1st Cir. 1978). A judge is not required to give the precise instructions submitted by either party, but he must not give instructions that are misleading or confusing, or omit an applicable essential legal principle. Beck v. Lovell, supra. Since the entire record is before us, the interests of judicial economy and efficiency, as well as our Constitutional and statutory law require us to decide the issues rather than remand same. Gonzales v. Xerox Corporation, supra; La.Const. Art. 5, Sec. 10; La.C.C.P. Art. 2164.

Landowner’s Liability

The owner of a building is responsible for the injuries caused by its “ruin”, whether such ruin is due to a vice in the original construction or through his neglect to repair it. La.C.C. Art. 2822. The landowner is “.. . bound to keep his buildings in repair so that neither their fall nor that of any part of their materials may cause damage to a neighbor ..La.C.C. Art. 660. Our jurisprudence is clear that the liability imposed upon the building owner under the above referred to codal articles is a strict liability, and neither ignorance of the building condition, nor an undetectable defect will absolve the owner from that liability. Only the fault of a third person, or the fault of the victim, will absolve the owner from responsibility. In addition, his responsibility is non-delegable. Olsen v. Shell Oil, 365 So.2d 1285, (La.1978), rehearing denied January 26, 1979.

Under Olsen, supra, the following three requirements must be met before liability will be imposed: (1) There must be a building; (2) the defendant must be its owner; and (3) there must be a “ruin” caused by a vice in construction or neglect to repair, which occasions the damage sought to be recognized. For purposes of Article 2322, “ruin” has been defined to mean the actual collapse or fall of a building or one of its components. It also contemplates a situation in which some part of the building collapses, or breaks or gives away. Davis v. Royal Globe Insurance Co., 257 La. 523, 242 So.2d 839 (1970).

Although the testimony is contradictory as to whether Mrs. Brown fell through weak or rotten boards in the building or through a pre-existing hole in the floor, it is clear to this court that either instance is a “ruin” contemplated by Article 2322. It is equally clear that the premises 1428 Marig-ny St. is a building, and that defendant Soupenne was the owner of that building. Despite these facts, the jury found no liability on the part of the landowner. This is clear error, and we must reverse that finding.

As noted above, one of the defenses that may absolve the landowner from strict liability is the fault of a third person, “. .. where the ‘third person’ is a stranger rather than a person acting with the consent of the owner in the performance of the owner’s non-delegable duty to keep his building in repair.” Olsen, supra, at 1293, 1294. The trial court erred in its instructions to the jury relative to third party fault in that it failed to explain that the third party must be a person other than one acting with the consent of the owner or on his behalf. The pertinent instructions given by the court were as follows:

“He can be released only if the thing owned by him causes damage not because of its defect, but rather because of the fault of the victim or some third person or because the harm is caused by an irresistible force.”
* * * * * *
“Another defense which the law permits the owner of the defective premises to raise is that some third person such as the tenant himself, Mr. Brown, for whose conduct the owner is not responsible, was at fault and thereby caused the plaintiff’s injury. If you conclude that a third person such as Mr. Brown did act in such a way and failed to make those reasonable precautions for plaintiff’s safety that we could expect a reasonable person to take under these circumstances and that the plaintiff’s injury resulted from that conduct, then you must also return a verdict for the defendant.”

The court should have further instructed the jury that the third party must not be a party acting with the owner’s consent or on his behalf. By failing to do so, the jury was erroneously informed on the defense of third party fault which prevented a proper determination of the facts and issues. Although they found that Stroughter breached a duty owed to Mrs. Brown which resulted in her injuries, his (Stroughter’s) is not the third party fault contemplated by the law to absolve the landowner’s strict liability. Stroughter was the agent-manager of the landowner and thus was acting with his consent and permission. He was not a “stranger” third party.

We understand that appellant has not complained of this erroneous charge in his specifications of error, nor did he object to same prior to the jury retiring, we are nevertheless compelled to hold as we do in the interest of what is just and proper on the record. La.C.C.P. Art. 2164.

Exception of Prescription

As previously noted in our recitation of the facts, Stroughter was not made a defendant until more than two years after the accident date. Because of the jury finding no liability on Soupenne, the trial court properly upheld the exception of prescription. However, that ruling must necessarily be reversed in view of our holding this date with respect to the liability of Soupenne.

Our Civil Code provides:

“A suit brought against one of the debtors in solido interrupts prescription with regard to all.” La.C.C. Art. 2097.
“There is an obligation in solido on the part of the debtors, when they are all obliged to the same thing, so that each may be compelled for the whole, and when the payment which is made by one of them exonerates the others toward the creditor.” La.C.C. Art. 2091.

Whenever the injured party can compel restitution for the whole of his damages from either debtor, those debtors are liable in solido. See Sampay v. Morton Salt Co., 395 So.2d 326 (La.1981). Foster v. Hampton, 381 So.2d 789 (La.1980). Even though the legal basis for Soupenne’s liability is different from that of Stroughter’s, since both are liable for the whole of the debt, suit against one interrupts prescription as to the other. Having overruled the exception of prescription, we must next necessarily consider the arguments of Stroughter with respect to his liability.

Agent’s Liability

In keeping with Gonzales, and Beck, supra, we shall proceed to decide the issues of Stroughter’s liability. Appellants complain that the trial court failed to give a strict liability charge as it pertains to Stroughter’s responsibility. They argue that Loescher v. Parr, 324 So.2d 441 (La.1975), and La.C.C. Art. 2317, both impose strict liability to one entrusted with the custody of a thing. We agree with that interpretation of the law, however we find no facts in the record to substantiate a strict liability charge with respect to Stroughter. He did not have custody of the premises, nor was he the owner, and the trial judge’s negligence charge, rather than a strict liability charge, was proper.

The jury found that Stroughter was negligent in his duty to Mrs. Brown which was a cause of the accident, and further that he breached a duty owed Soupenne, the landowner. In examining the correctness of these findings, we must first determine what duty was owed to Mrs. Brown. Stroughter entered into a verbal contract with Soupenne, which, according to Stroughter’s testimony involved only collecting rent, evicting tenants, if necessary, and reporting all complaints to the owner. However, according to Soupenne’s testimony it involved much more, specifically the actual repair and maintenance of the premises. Both agree that a 10% commission was paid to Stroughter. This Court finds that Stroughter’s obligations to Soupenne are best set forth by the following series of questions posed by the trial judge.

“Q. Let me just ask you a few questions. The services your company performed for Mr. Soupenne included collecting rent, correct?
A. Correct.
Q. Finding new tenants?
A. Correct.
Q. Handling the eviction which the tenants had to be put out?
A. Correct.
Q. If a complaint was made, the complaints were made to your company?
A. Correct.
Q. The owner had nothing to do with the property until the complaints were made?
A. Correct.
Q. And then you all hired — notified the owner explaining the condition and together with the owner decided what repairs were to be made?
A. The owner would tell us what to do.
Q. And you all would handle the repairs through Driscoll, and a choice or option — the owner had the choice to do it, also?
A. He had that choice.
Q. Was it Mr. Soupenne’s custom as to all repairs on the Marigny Street property and Laharpe St. property to let Stroughter Realty make the repairs, to the best of your knowledge?
A. He would tell us what to do, Judge.
Q. He would tell you what to do, but you all actually hired Driscoll or someone else to make the repairs, to the best of your knowledge?
A. Yes.
Q. No outside contractor by Mr. Soup-enne was hired, to your knowledge, to repair either one of the properties?
A. No.”

However, these obligations were undertaken for the benefit of Soupenne, and a breach of any of them by Stroughter does not necessarily indicate a breach of a duty owed to Mrs. Brown. An agent by undertaking contractual obligations with his principal does not increase his responsibilities to third persons, and cannot be liable to those third persons by his failure to perform those obligations.

A review of the record convinces us of the following facts. Stroughter has been in the real estate management business since 1953, manages over 4,000 pieces of real estate and employs 16 persons, one of whom is Mr. McCormick who who handles repairs. Both Stroughter and McCormick testified that at the time of the accident tenant complaints were received by any one of six secretaries in his office. Those complaints were then relayed to McCormick, who would contact the property owners and arrange for the repairs. Of course, Stroughter received a 10% commission on the rents collected. Eddie Brown, Jr., the tenant, testified that he made complaints on several occasions to Stroughter’s employees about various needed repairs, including a squeaking floor of the washroom. He stated that he tried to see Stroughter, personally, on numerous occasions but was unsuccessful. Brown’s testimony is contradicted by Stroughter and McCormick, who stated they never received any complaints. However, it is also apparent that there were no formal procedures for the documentation of complaints and no record keeping system. If a secretary remembered a complaint, she would tell McCormick. If not, the complaint would go unattended.

We hold that Stroughter breached his contractual obligations to Soupenne by failing to report the complaints of Eddie Brown, Jr., thus depriving Soupenne the opportunity to properly repair the premises. Every contract for work or services carries the implied obligation to perform in a good manner. Failure to do so will necessarily require the defaulting party to respond for the losses that are incurred. See Tiger Well Services, Inc. v. Kimball Production Co., 343 So.2d 1153 (La.App. 3rd Cir. 1977). The failure of Stroughter to fulfill his obligations to Soupenne is not a breach of any duty owed to Mrs. Brown, and therefore we reverse the jury verdict in that regard. We do, however, affirm the jury’s finding that Stroughter breached his obligations to Soupenne.

Wrongful Death Claim

Plaintiff’s contend that the trial court erred as a matter of law in granting a motion for directed verdict on appellant’s cause of action for wrongful death. In Louisiana, the procedure for directed verdicts is contained in LSA C.C.P. Art. 1810. In pertinent part, the statute states:

“A party who moves for a directed verdict at the close of the evidence offered by an opponent may offer evidence in the event that the motion is not granted, without having reserved the right so to do and to the same extent as if the motion had not been made. A motion for a directed verdict which is not granted is not a waiver of trial by jury even though all parties to the action have moved for directed verdicts. A motion for a directed verdict shall state the specific grounds therefor. The order of the court granting a motion for a directed verdict is effective without any assent of the jury.” La.C.C.P. Art. 1810.

The standard of proof to be applied by the court in ruling on a motion for a directed verdict is clearly set out in Schieider v. Schwegmann Bros., 411 So.2d 1220 (La.App. 4th Cir. 1982).

In that case we held that since the language of the La. Statute is taken directly from F.R.C.P. 50(a) we would adopt the federal standard as enunciated by the Fifth Circuit Court of Appeals in Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir. 1969), which is as follows:

“On motions for directed verdict and for judgment notwithstanding the verdict the court should consider all of the evidence — not just that evidence which supports the non-mover’s case — but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motions is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fairminded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury.” id. at p. 374.

The La.Sup.Ct. approved this standard in Breithaupt v. Sellers, 390 So.2d 870 (La.1980). See also Campbell v. Mouton, 373 So.2d 237 (La.App. 3rd Cir. 1979); Grimes v. Stander, 394 So.2d 1332 (La.App. 1st Cir. 1981); Gunter v. Plauche, 399 So.2d 727 (La.App. 1st Cir. 1981).

It is quite clear that in Louisiana the test is a “reasonable men” standard. Appellants incorrectly state that the standard is one such that if there exist any material factual disputes, the question must go to a jury. It is apparent from the record, that the facts and inferences of this case point so strongly and overwhelmingly in favor of one party that the Court believed that reasonable men could not arrive at a contrary verdict, and therefore granted the motion for directed verdict.

In granting the directed verdict the trial judge stated:

“This court has never previously ever granted a directed verdict on an issue in a jury trial, firmly believing in the jury system and the jury’s right to decide all the issues of fact submitted to it.” (Tr. vol. 6, page 65-66)

The Judge based his directed verdict, among other things, on the fact that “the plaintiffs witness (Dr. Manale the only witness who treated the deceased), clearly concludes, that the trauma did not, in the clearest of terms, contribute to her death.” Furthermore, the Judge stated:

“So you have no experts from the plaintiffs whatsoever in this record that have connected the fall to her preexisting conditions to her death.” (Trial Tr. Yol. 6, page 69)

Our review of the record convinces us that appellants failed to present sufficient evidence which would indicate that the cause of Marie Brown's death was in any way related to the injuries and trauma which she sustained at the premises of 1428 Marigny Street. We therefore affirm the trial courts granting of defendant’s motion for a directed verdict on the wrongful death claim.

We find no error in the trial judge excluding the Charity Hospital bill from evidence, as same was irrelevant in view of the wrongful death claim having been dismissed.

For the reasons assigned this date, the judgment is affirmed in part, and reversed in part. There is judgment in favor of appellants against Emile A. Soupenne, for the full sum of $35,000.00, plus all costs of the trial court. Further there is judgment in favor of Emile A. Soupenne against J. W. Stroughter, and W. Stroughter and Associates Realty on the third party demand for all sums which Soupenne is liable. All parties are to share the costs of this appeal equally.

AFFIRMED IN PART, REVERSED IN PART.

      .The interrogatories propounded to the jury, and their responses were as follows:
      “1. Did Emile A. Soupenne breach his legal duty owed to Mrs. Marie Brown, which was a cause of the accident? No.
      2.Was J. W. Stroughter doing business as J. W. Stroughter & Associates Realty negligent to Mrs. Marie Brown which was a cause of the accident? Yes.
      3. Did J. W. Stroughter doing business as J. W. Stroughter & Associates Realty breach his legal duty owed to Emile A. Soupenne, which was a cause of the accident? Yes.
      4. Was Eddie Brown, Jr. negligent which was a cause of the accident? No.
      5. Was Mrs. Marie Brown negligent which was a cause of the accident? No.
      6. What amount of damages do you award for Mrs. Brown’s injuries? $35,000.00.”

      . La. Civil Code Article 2322 provides:
      “The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice in its original construction.”


source: Caselaw Access Project

author: WILLIAMS, Judge. BARRY, Judge,

license: Public Domain

text:
    John and Frances BURKE, et al. v. OCCIDENTAL LIFE INSURANCE COMPANY OF CALIFORNIA, et al.
    No. 12890.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 11, 1982.
    Rehearing Denied July 16, 1982.
    W. Marvin Hall, Andrew L. Hamlin, Me-tairie, for plaintiffs-appellants.
    Wood Brown, III, Montgomery, Barnett, Brown & Read, New Orleans, for defendant-appellee.
    Before BARRY, WARD and WILLIAMS, JJ.
   WILLIAMS, Judge.

This is an appeal from an order of the trial court granting a motion for summary judgment brought by the defendant Occidental Life Insurance Co. of California [“Occidental”].

Plaintiff Frances Burke was an employee of the Jefferson Public School System [“School System”] to which Occidental had issued a group accident and health insurance policy. Plaintiff’s minor son, Christopher Wimsatt, also a plaintiff in this action, was a beneficiary of the policy. Wimsatt was hospitalized in January, 1979, in Coliseum Medical Center. In October, 1979, Occidental informed the School System that the plaintiffs had reached the limit of their coverage, and terminated benefits. The School System subsequently notified the plaintiffs. The plaintiffs claim that from the time the School System received notice of discontinuance of benefits until the time that they received such notice, additional costs of $17,849.01 had been incurred. The plaintiffs then filed suit against Occidental and the School System to recover additional medical costs of $22,970.50 and $175,000.00 for embarrassment, mental anguish, humiliation and aggravation of Wimsatt’s emotional problems as a result of Occidental’s actions.

Occidental moved for summary judgment based on the deposition of Mrs. Burke and the terms of the policy itself. The policy places a $25,000.00 limitation on coverage for mental illness or functional nervous disorders. Occidental introduced Mrs. Burke’s deposition in which she stated that her son’s difficulties were a result of mental and emotional illness. Occidental argued that the $25,000.00 limit therefore, was applicable, and because this limit had been reached, benefits were terminated. In response, the plaintiffs filed an opposition to the motion for summary judgment. The opposition took the position that the policy language is in conflict with the “certificate,” and that the higher general limit contained in the certificate, rather than the $25,000.00 limit, should be applied. This “certificate” upon which the plaintiffs rely is actually nothing more than the insurance claim form. The plaintiffs offered no further opposition to the motion, and it was granted.

The plaintiffs have appealed to this court on the ground that the ruling below was in error. The plaintiffs assert that the trial court committed four errors: (1) Wimsatt actually was suffering from a physical ailment; (2) the certificate of insurance provides for sufficient coverage; (3) Occidental failed to inform the plaintiffs that benefits were being terminated; and (4) Occidental was in violation of La.R.S. 22:213.2, which required insurers to offer policyholders an option to have mental and nervous disorders receive the same type of coverage as illnesses, accidents, or all other diagnoses.

After the decision was rendered below, the attorney for the plaintiffs introduced a voluminous amount of information into the record, including records from Coliseum House and excerpts from medical journals, all of which support the position that Wim-satt was suffering from Klinefelter’s Syndrome. Klinefelter’s Syndrome is a genetic disorder, that has certain mental manifestations, including severe anxiety, tension, severe psychoneurosis, and paranoid schizophrenia. This subsequently introduced evidence and the allegations in brief to this court indicate that Wimsatt suffered from this illness at the time of his admittance to Coliseum House. Notwithstanding the availability of this evidence of the physical nature of Wimsatt’s illness, the plaintiffs’ attorney did not introduce any of it in opposition to summary judgment. None of the information about the physical nature of the plaintiff’s infirmity was made available to the district court, nor were any allegations contained in the petition which would indicate that Wimsatt was physically, not mentally, ill.

Summary judgment is granted when the pleadings and affidavits show that there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. La.C.Civ.Pr. art. 966. Summary judgment is improper if there is any reasonable doubt that it should be granted. E.g., Chaisson v. Dominque, 372 So.2d 1225 (La.1979).

In the instant case, the only evidence before the trial court on this issue was the deposition testimony of Mrs. Burke and the plaintiff’s petition that characterized Wimsatt as suffering from “emotional problems.” Based upon the evidence before him, the trial judge properly granted the motion for summary judgment. Furthermore, we cannot consider any evidence presented de novo on appeal. If the plaintiffs’ attorney had presented any of the evidence upon which he relies on appeal, at trial, summary judgment clearly would have been improper. See La.C.Civ.P. art. 967. The law is clear, however, that we are unable to consider an issue not raised in the pleadings or the motion for summary judgment. Lusk v. Aetna Casualty & Sur. Co., 295 So.2d 238 (La.App. 3d Cir. 1974). See also Blount v. Exxon Corp., 395 So.2d 355 (La.App. 1st Cir. 1981). The attorney’s apparent failure to plead properly and to respond properly to the motion for summary judgment precludes us from ruling in the plaintiffs’ favor.

Two other arguments presented by the plaintiffs are also without merit because no evidence in support of them is contained in the record below. Even assuming merit in the plaintiff’s argument that the plaintiffs were damaged because they were not notified that benefits were being terminated and that the defendant is liable for these damages, there is no evidence to show whether this failure to notify actually occurred. Once again, the plaintiffs’ attorney failed to raise this issue at trial.

Furthermore, the plaintiffs have argued that Occidental has violated La.R.S. 22:213.-2. La.R.S. 22:213.2 provided in pertinent part

“Every insurer authorized to issue policies of health and accident insurance in this state shall offer to all prospective group, blanket, and franchise policyholders at their option a provision in the insurer’s health and accident insurance policies which shall state that benefits shall be payable for services rendered for the treatment of mental and/or nervous disorders, under the same circumstances, conditions, limitations and exclusions as benefits are paid under those policies for all other diagnoses, illnesses, or accidents;

See Rudloff v. Louisiana Health Serv. & Indem. Co., 385 So.2d 767 (La.1979) (on rehearing).

It is not unlawful for an insurance company to provide different coverage for physical and mental illnesses within the same policy, as long as the insured is given the opportunity to obtain similar coverage for mental and/or nervous disorders on the same terms as coverage for other diagnoses, illnesses, or accidents. If the insurance company fails to offer similar mental coverage then the policy holder is presumed to have opted for the equal coverage. Rudloff v. Louisiana Health Serv. & Indem. Co., supra. Once more, this issue was not raised by the plaintiffs in opposition to the summary judgment and was not before the trial judge. Because the plaintiffs’ attorney failed to raise this issue below we are precluded from overruling the trial court’s decision. Lusk v. Aetna Casualty & Sur. Co., supra.

Finally, the plaintiffs assert that there exists a discrepancy between the policy issued to them and their certificate of insurance, and that because the certificate provides for coverage up to an amount sufficient to cover Wimsatt’s medical expenses, its terms are applicable. A deposition of a personnel assistant for Jefferson Parish has been introduced into the record by the plaintiffs to support the plaintiffs’ position on this issue. This deposition was taken after the Motion for Summary Judgment and, therefore, we are unable to consider it. See discussion, supra. The “certificate” to which the plaintiffs refer is clearly no more than a claim form. The trial judge properly concluded that this was not a genuine issue of fact. See City of Baton Rouge v. Cannon, 376 So.2d 994 (La.App. 1st Cir. 1979).

Although the plaintiffs’ attorney has attempted to present issues of fact on this appeal, he did not present any in the trial court. Based on the record before us, we cannot say that the trial court erred in granting summary judgment in favor of Occidental. Were we to reverse the trial court’s ruling, we would severely undermine, perhaps fatally, the summary judgment procedure. A losing party should not be able to create issues of fact on appeal when he failed to raise them in the trial court.

The decision of the trial court is affirmed, all costs to appellant.

AFFIRMED.

BARRY, Judge,

concurs.

I agree that summary judgment is appropriate. Without additional information I cannot join the majority’s apparent conclusion that plaintiff’s counsel is responsible for the result.

      . The certificate of insurance was filed into the record by the plaintiffs as an appendix to a Memorandum in Support a Motion for Summary Judgment. The Motion for Summary Judgment filed by the plaintiffs was never presented to the court below.

      . This provision was repealed effective January 1, 1982. It has been superceded by La.R.S. 22:669.


author: BARRY, Judge. WILLIAMS, Judge,

text:
    Gail A. Cucurullo, Wife of/and Michael J. DUCOTE v. Arthur H. ARNOLD, Sr. & Cecil A. McConnell a/k/a A. J. McConnell, Jr., d/b/a Arnold Construction Co.
    No. 12786.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 12, 1982.
    Dissenting Opinion May 25, 1982.
    Rehearing Denied July 16, 1982.

      Fiasconaro & Fiasconaro, Paul S. Fiasco-naro, New Orleans, for plaintiffs-appellees.
    Gary J. Dragon, Chalmette, for defendants-appellants.
    Before BARRY, AUGUSTINE and WILLIAMS, JJ.
   BARRY, Judge.

The defendant construction company appeals a judgment which held that it breached a building contract.

Plaintiffs, Mr. & Mrs. Michael Ducote, entered into a written contract on March 15, 1978 with Arnold Construction Company to build an addition to their residence for $40,650.00 to be paid in five stage installments. Work began March 20, 1978 after which plaintiffs made four payments totaling $33,862.50. Ten months later, January 18, 1979, the work was incomplete which prompted plaintiffs to dismiss Arnold and hire another contractor to correct faulty work and finish the job.

Plaintiffs sued Arnold for damages alleging breach of contract due to faulty workmanship and failure to complete the work within a reasonable time. Arnold reconvened for the balance of the contract and sought damages for humiliation. The lower court awarded plaintiffs $14,600.50, consisting of $6,100.50 to complete the work, $5,000.00 for mental anguish and inconvenience, plus $3,500.00 attorney’s fees. Defendant appeals saying there was no breach of contract because of its failure to perform, and alternatively, urges the trial court erred in computing the damages, in allowing recovery for mental anguish, and awarding legal fees. Plaintiffs answer the appeal seeking an increase in all items of quantum.

BREACH OF CONTRACT

The contract does not have a completion date, rather it provides the work should be completed within a “reasonable time.” George Pope, a building expert, testified for the defendant on the problems incurred in matching the existing residence to the new addition. Mr. Pope noted because of roots in the ground where the chain walls were placed, it was reasonable for the excavation work to take four to five weeks. Mr. Pope stated, after listening to the testimony of others, it was his opinion the amount of time defendants worked on this job was not unreasonable. A carpenter subcontractor said he could normally frame, sub-floor, and roof new construction in seven work days, whereas this job took four weeks because of the unique problems encountered in connecting the old and new roofs. Mr. Arnold, one of the defendant partners, testified the roots were a major unanticipated problem that required extra time. He also stated the original house had sunk approximately IV2 inches which caused the addition to be out of plumb. Another problem was the necessity to redesign the new roof because the plans were not compatible with the existing roof. Mr. Arnold acknowledged that painting, plumbing and electrical work was not completed.

Plaintiffs relied upon the testimony of Mr. Troendle, the contractor who completed the job. He said the addition was “roughed in” when he started work and there were numerous defects in the defendant’s work. He stated the defendant had completed approximately two-thirds of the job, but the addition at that stage could not be lived in. Mr. Troendle said his contract to complete the job was for $9,350.00 which did not include plumbing, electrical, exterior painting, and flooring. It took slightly more than two months to complete the job, partly because of corrections that had to be made.

In a lawsuit of this sort conflicting testimony is the rule and conclusions of the Trial Judge must of necessity be given great weight. We feel it is reasonable to assume the lower court discounted the testimony of defendant’s expert, Mr. Pope, because he never visited the work site and his familiarity with this dispute stems only from the testimony he heard during trial.

Under Louisiana law, a contractor who undertakes a construction project must perform the work in a skillful and workmanlike manner. LSA-C.C. Art. 2769. In a suit to impose liability on a contractor for poor workmanship or noncompliance with the contract, a plaintiff must prove his case by a preponderance of the evidence, either direct or circumstantial. A & M Pest Control Service, Inc. v. Fejta Construction Company, Inc., 338 So.2d 946 (La.App. 4th Cir. 1976).

In written reasons the Trial Judge concluded “... there is no doubt from the evidence that the job dragged and lagged on without fault on behalf of plaintiffs.” Our review of the testimony, particularly the on-site experiences and unbiased statements of Mr. Troendle, leads us to conclude plaintiffs carried their burden of proof. We agree with the lower court’s conclusion that the defendant failed to perform within a reasonable time and therefore is liable for appropriate damages. We are also satisfied defendant’s efforts included faulty workmanship which required corrections that added to the completion cost.

BASIS TO COMPUTE DAMAGES

Whether or not the contract was substantially performed governs how the damages are to be calculated. If there was substantial performance, the contractor is entitled to recover the contract price reduced by the amount necessary to complete the work; if there has not been substantial performance the contractor’s recovery is limited to quantum meruit with the owner entitled to costs incurred in completing the work in excess of the contract price.

Substantial performance exists when the construction may be used for the purpose intended regardless of defects or omissions. It is a question of fact which considers “the extent of the defect or nonperformance, the degree to which the purpose of the contract is defeated, the ease of correction, and the use or benefit to the owner of the work performed ... Once substantial performance has been shown the burden of proof then shifts to the owner who must prove the existence and nature of the alleged defects, that they are due to faulty material and/or workmanship, and the cost of repairing the defects.” Neel v. O’Quinn, 313 So.2d 286 at p. 290 (La.App. 3rd Cir.) writ denied, 319 So.2d 440 (La.1975). (Citations omitted.)

The reasons for judgment do not mention whether the contract was substantially performed, but did provide: “Plaintiffs were required to make these payments in order to have the work completed at some time during the year 1978 but the work was not actually completed until the first quarter of 1979 and then primarily by others.” (Emphasis added.) By this statement and from the manner in which the damages were calculated, i.e., reimbursement for costs incurred to complete the work in excess of the contract price, we can only deduce the Trial Judge found there was not substantial performance. We agree that conclusion is appropriate.

COMPUTATION OF DAMAGES

In addition to the $33,862.50 paid to the defendant, the Trial Judge found plaintiffs paid $12,888.00 to complete the addition to their home, for: exterior paint—$900.00; flooring—$1,638.00; electrical—$300.00; plumbing—$700.00; Troendle, contractor— $9,350.00. He concluded: “Thus the plaintiffs had paid $46,750.50 to erect improvements for their convenience, that if property [sic] and timely performed, would not have cost them more than $40,650.00. Therefore, the Court feels that a fair figure of recovery for plaintiffs for the loss of funds (Profits) to be $6,100.50.”

Defendant claims the Trial Judge erred by not adding five change orders totaling $2,453.07 to the original contract of $40,650.00, thus raising the value of defendant’s work to $43,103.07 as the proper basis to deduct from completion cost in order to assess damages. Plaintiffs respond, and we agree, that the change orders were distinct from the original contract, were paid for separately, and therefore should not be considered in determining damages.

Defendant properly argues the damages for breach of contract should be limited to the cost of completing the contract, under the same specifications, over the original contract price. Keating v. Miller, 339 So.2d 955 (La.App. 4th Cir. 1976) writ denied, 341 So.2d 904 (La.1977).

Both parties, claim, for different reasons, the general damages of $6,100.50 to complete the job is wrong because the lower court erred by not considering the following:

Defendant contends the $9,350 paid to Troendle included payment for the work which was not part of the original contract, therefore these costs should be deducted from the award:
1. Labor and material to stain kitchen cabinets.
2. Additional beams of better quality wood.
3. The original contract provided a $150.00 allowance for hardware, whereas the Troendle contract charged for all hardware.
4. A shower for the master bath.
5. More expensive oak floors instead of pine.
Plaintiffs contend they paid for but were not given credit for incidentals costing $784.14 (exhibits P-14-A through P-14M, except P-14-D) that were to be provided by defendant and this amount should be added to the award.

From the record it appears the Trial Judge did not consider these claims and there is insufficient detail to permit us to make a determination if, and how much, they would alter the award. Accordingly, we remand to ascertain if, after considering these specific items, the $6,100.50 was proper to complete the contract, representing only work and materials included in the specifications.

NON-PECUNIARY DAMAGES

The lower court awarded $5,000.00 for inconvenience and mental anguish and in support the reasons for judgment provide:

“This addition was of course for the convenience of plaintiffs and not for the hope of profit but for the betterment of their family life.... The court finds that the plaintiffs were greatly inconvenienced by being required to live in a residence in which no attempts were made by the contractor to reduce the inconvenience of not having hot and cold water, restoration of the kitchen and washing facilities or any temporary measures to prevent insects from invading the home, plus the inconvenience and deprivation that results when a child is required to sleep in the same bedroom as the parents.”

Defendant asserts it was error to award non-pecuniary damages, citing Meador v. Toyota of Jefferson, Inc., 332 So.2d 433 (La.1976), where damages were denied because of undue delay to repair a ear. In Meador the Supreme Court reviewed the history of Art. 1934(3) and cited non-pecuniary awards where the object of the contract included elements of both intellectual and physical gratification. The court noted cases wherein non-pecuniary damages were allowed where the object of the contract was exclusively intellectual enjoyment as opposed to partialy intellectual — partially physical, and as opposed to exclusively physical enjoyment. The court stated it had never adopted a strict view but reached results favoring a broader interpretation of Art. 1934(3) and concluded that intellectual enjoyment must be a principal object of the contract and non-pecuniary damages are limited to nonfulfillment of the intellectual object.

Prior to Meador, we granted damages for mental anguish arising from breach of contract to construct a concrete block, walk-in cooler. Co-operative C. Stor. Bldrs. Inc. v. Arcadia Foods, Inc., 291 So.2d 403 (La.App. 4th Cir. 1974). After Meador, this court unqualifiedly denied recovery from a breach of a building contract (for a home) because the object of the contract did not include “some intellectual enjoyment.” Catalanot-to v. Hebert, 347 So.2d 301 (La.App. 4th Cir. 1977).

However, the Second Circuit differed with Catalanotto and distinguished Meador by allowing recovery for mental anguish where the contract was for a “distinctively planned residence.” Whitener v. Clark, 356 So.2d 1094 (La.App. 2nd Cir.) writs denied 358 So.2d 638 and 641 (La.1978).

In Ostrowe v. Darensbourg, 377 So.2d 1201 (La.1979) plaintiff’s contract was for construction of an expensive residence. The contractor did not complete the work timely and plaintiffs sued for “past [and future] mental suffering, anguish and anxiety.” The Supreme Court denied recovery and noted that the contract did not state its object was the gratification of some intellectual enjoyment, and even though plaintiff urged the home was “distinctively designed” (as in Whitener) the court found from the limited facts “... that the principal object of the contract, as with most contracts to construct dwellings, was to build a structure to be used as a residence by the plaintiffs.”

In Coddington v. Stephens Imports, Inc., 383 So.2d 416 (La.App. 4th Cir. 1980) this court side tracked Meador by allowing damages to a motorist who was stranded three times on highways and who lost additional time and effort in having repairs completed to his vehicle. Conversely, the Third Circuit denied damages because of the faulty installation of a fireplace in a home, saying that the object of the contract was for the improvement of an immovable without intellectual enjoyment as a principal or exclusive object. Martin v. AAA Brick Co., Inc., 386 So.2d 987 (La.App. 3rd Cir. 1980).

In Gele v. Markey, 387 So.2d 1162 (La.1980) the trial court awarded damages for emotional distress to lessees because a defective ceiling collapsed. This court cited Meador and set aside the award saying the lease did not have intellectual enjoyment as its principal purpose. On appeal to our higher court, Justice Dennis said: “Although the court of appeal’s reasoning may be questioned insofar as it would withhold emotional distress damages as a matter of law from a tenant whose property is damaged by a premises defect, we conclude that its result is correct because the plaintiffs failed to prove they actually suffered emotional distress.” Id. pp. 1162, 1163. Most importantly, the Supreme Court said application of Meador’s interpretation of Art. 1934(3) in Gele worked an injustice if the plaintiffs suffered “real, substantial emotional distress” or loss of intellectual enjoyment. The court noted the Court of Appeal did not consider whether the record would support an award of emotional distress damages as a result of a delict or quasi-del-iet, saying that contract and tort actions are sometimes intertwined, but concluded that the record did not support an award of non-pecuniary damages. Gele acknowledged judicial and scholarly criticism which resulted from Meador, but pointed out before and after Meador courts have awarded non-pecuniary damages when mental stress was adequately proven.

Finally, defendant argues plaintiffs knew inconvenience would result during construction and compares Seymore v. Louisiana Soil Stabilization Co., Inc., 381 So.2d 571 (La.App. 2nd Cir. 1980) where damages were denied for mental anguish over soil instability under a house. In Seymore the soil condition pre-existed defendant’s attempt to correct the problem, whereas here the defendant caused plaintiffs’ problems.

Plaintiffs admit they were aware some inconvenience would occur during construction. However, the record abounds with examples of mental and physical torment caused by defendant’s inattention and failure to complete the contract within a reasonable time, such as: lack of air conditioning during the summer and heat during the winter; inability to do laundry because of no electricity for the washer and dryer; having the home open to vandalism; mosquito and roach problems due to removal of outside walls; lack of kitchen facilities; washing dishes in the bathtub; groceries stored in boxes; the necessity of their twelve year old son to sleep in their bedroom.

It now appears from Gele that the narrow interpretation of Art. 1934(3) in Mea-dor has broadened to permit recovery for real and substantial mental anguish if clearly proven. We enumerated above examples of the sloppy work performed by this defendant and also particularized the circumstances which caused plaintiffs to suffer hardships, severe aggravation, distress and inconvenience. As a result of the breach of contract by defendants quasi tor-tious acts or omissions, we feel real and substantial emotional distress was clearly proven and damages are not only reasonable but clearly warranted. As noted by Chief Justice Dixon in his dissent in Mea-dor, courts have consistently awarded damages for mental anguish and inconvenience in tort suits where property damage is sustained and there is no logical reason to deny recovery simply because the cause of action is delineated as “contract.”

In this case plaintiffs proved their claim to the satisfaction of the Trial Judge and we do not find manifest error in that conclusion.

ATTORNEYS FEES

Even though the contract provides for reasonable attorney’s fees, defendant urges there is no evidence to support an award of $3,500.00. Plaintiffs answer the volume of work as seen in the record suggests a proper fee for the lower court to be $6,000.00, plus an additional $2,000.00 for services rendered on appeal.

We have previously said a court does not have to hear evidence concerning time spent or hourly rates charged in order to make an award since the record will reflect much of services rendered. The attorney may present additional evidence but he is not required to do so. In the matter of Robert A. Andras, 410 So.2d 328 (La.App. 4th Cir. 1982). The trial court is in the best position to assess a reasonable fee. Mouton v. Mouton, 383 So.2d 447 (La.App. 4th Cir. 1980). We feel the award of $3,500.00 is adequate for this trial and sufficient to also include preparation and presentation of the appeal.

DECREE

This matter is remanded solely for the reason specified above, and in all other respects is affirmed. Costs to be assessed upon final rendition.

REMANDED IN PART; AFFIRMED IN PART.

WILLIAMS, J., affirms in part and dissents in part with reasons to follow.

WILLIAMS, Judge,

dissenting in part.

I respectfully dissent from the decision of the court to award damages for emotional distress. Meador v. Toyota of Jefferson, Inc., 332 So.2d 433 (La.1976) prohibits non-pecuniary damages in an action for breach of contract if the contract does not have gratification of intellectual enjoyment as its principal object. Although the efficacy of Meador was questioned in Gele v. Markey, 387 So.2d 1162 (La.1980), we are compelled to follow it until it is expressly overruled. Meador clearly prohibits us from awarding the plaintiff damages for inconvenience and mental suffering. See Ostrowe v. Darens-bourg, 377 So.2d 1201 (La.1979).

      . The lower court found Arnold Construction Company to be an ordinary partnership consisting of Arthur H. Arnold, Sr. and Cecil A. McConnell.

      . The addition included a master bedroom and bath, solarium, den, kitchen, dining room, laundry room.

      . The window jambs were too large; threshold to the outside doors was too high; the furring in the kitchen was wrong; the cathedral ceiling was out of plumb; an arch was improperly installed; the floor was out of plumb; sheet-rock seams were not floated properly; different ceiling heights in the den; broken and cracked sheetrock; remove and rehang all wall cabinets; center beam sag in the den; base cabinets improperly assembled; and others.

      . LSA-C.C. Art. 1934(3) provides:
      “3. Although the general rule is, that damages are the amount of the loss the creditor has sustained, or of the gain of which he has been deprived, yet there are cases in which damages may be assessed without calculating altogether on the pecuniary loss, or the privation of pecuniary gain to the party. Where the contract has for its object the gratification of some intellectual enjoyment, whether in religion, morality or taste, or some convenience or other legal gratification, although these are not appreciated in money by the parties, yet damages are due for their breach; a contract for a religious or charitable foundation, a promise of marriage, or an engagement for a work of some of the fine arts, are objects and examples of this rule. In the assessment of damages under this rule, as well as in cases of offenses, quasi offenses, and quasi contracts, much discretion must be left to the judge or jury, while in other cases they have none, but are bound to give such damages under the above rules as will fully indemnify the creditor, whenever the contract has been broken by the fault, negligence, fraud or bad faith of the debtor.


author: WATKINS, Judge.

text:
    Bobby J. GAUTHIER v. Sara Renee Crifasi LOSAVIO and Sheriff J. Al Amiss, Sheriff of East Baton Rouge Parish, Louisiana.
    No. 14492.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.
    Rehearing Denied July 13, 1982.
    A. L. Carbonette, Baton Rouge, for plaintiff-appellee Bobby J. Gauthier.
    Peter J. Losavio, Jr., Baton Rouge, for defendant-appellant Sara Renee Crifasi Lo-savio.
    Before COVINGTON, COLE and WATKINS, JJ.
   WATKINS, Judge.

This present action was filed by a petition styled “Petition of Intervention” filed by Bobby J. Gauthier to obtain a portion of the proceeds of a sheriff’s sale of property owned by him and located on Bateman Circle, Baton Rouge, Louisiana. Out of the proceeds of sale the trial court ordered paid to Gauthier the sum of $1,766.03. From that judgment, Sara Rene Crifasi Losavio appealed. Although in brief Gauthier states he was entitled to a larger portion of the proceeds of sale, he neither appealed nor answered the appeal. We affirm the judgment of the trial court.

Gauthier was a judgment debtor in a judgment rendered against him in favor of Ms. Losavio on September 3, 1976, which was duly inscribed on the mortgage records of East Baton Rouge Parish. Gauthier filed in bankruptcy on August 25,1977. At the time of the filing in bankruptcy, the Bateman Circle property was subject to a first mortgage. The bankruptcy referee disclaimed the Bateman Circle property and subsequently Gauthier received a discharge in bankruptcy on February 2, 1978.

Pursuant to a writ of fi. fa. obtained by Ms. Losavio, the Bateman Circle property was sold at sheriff’s sale in October of 1980 for a price of $15,333.34. The trial court awarded out of the proceeds of the sale the sum of $1,054.25 to the sheriff for costs, $6,934.67 to the holder of the first mortgage, $1,766.03 to Gauthier as reimbursement for sums expended in partial payment on the first mortgage following bankruptcy, and the balance of $5,578.39 to Ms. Losavio as holder of the judicial mortgage referred to above.

Ms. Losavio contends that Gauthier is not entitled to any portion of the proceeds of the sheriff’s sale. Gauthier contends on appeal he is also entitled to sums expended by him in making improvements on the property, which the trial court denied. However, as Gauthier neither appealed nor answered Ms. Losavio’s appeal, this contention cannot be considered by this court on appeal. LSA-C.C.P. 2133. Thus, the sole question is whether or not Gauthier is entitled to the sum of $1,766.03 which was expended by him in partial payment of his first mortgage subsequent to his adjudication in bankruptcy.

Under the holding of the Louisiana Supreme Court in a companion case to the present action, which involved the cancellation of the inscription of the same judicial mortgage on a separate piece of property, which opinion is expressive of prior jurisprudence, a discharge in bankruptcy discharges the bankrupt’s personal liability for a debt existing prior to bankruptcy, but it does not extinguish any lien existing prior to filing in bankruptcy. See Losavio v. Gauthier, 412 So.2d 1306 (La.1982), affirming our holding in this case at 400 So.2d 921 (La.App. 1st Cir. 1981), writ granted 406 So.2d 624 (La.1981). Further, according to Losavio, the enforceability of liens after discharge in bankruptcy is a matter of state law, which prevails unless the purposes of the bankruptcy act are frustrated.

Thus, under Losavio, Ms. Losavio continued to hold a judicial mortgage after Gau-thier’s discharge in bankruptcy. However, Gauthier contends that he is entitled to the sum of $1,766.03 spent in partial payment on the first mortgage after bankruptcy.

We held that an equity arising by virtue of payment of a secured obligation subsequent to bankruptcy, against property owned prior to adjudication in bankruptcy, is considered to be after acquired property and, as such, exempt from the claim of a judicial mortgage. Jaubert Bros., Inc. v. Landry, 15 So.2d 158 (La.App. 1st Cir. 1943); Kayda v. Johnson, 262 So.2d 171 (La.App. 1st Cir. 1972), writ refused, 263 So.2d 728 (1972).

The holdings in Jaubert Bros, and in Kay-da are in accord with the broad policy behind LSA-R.S. 9:5166 enacted by Act No. 588 of 1970 (hence after the former decision but before the latter), which reads as follows:

“Upon rule to show cause by an interested party against the clerk of court and ex officio recorder of mortgages of the several parishes and the recorder of mortgages for the parish of Orleans, the judgment creditor and a judgment debtor discharged in bankruptcy, the court shall order the cancellation of the inscription of any dischargeable judgment rendered twelve months previously unless the judgment creditor can prove that he continues to possess a secured interest in the property affected by such judgment, or any judgment rendered in a tort proceeding wherein the judgment debtor’s liability arose out of his wilful negligence, or any judgment for taxes due or any other judgment otherwise not discharged in bankruptcy.”

In Losavio, supra, the Louisiana Supreme Court held that a bankrupt was entitled to cancellation of a judicial mortgage in which the bankrupt no longer held an equity after bankruptcy, the words “secured interest” in the statute being equated with “equity” at the time of the adjudication in bankruptcy. The Louisiana Supreme Court further stated that if the bankrupt acquired equity by payment on a preexisting first mortgage after filing in bankruptcy, the judgment lien cannot be enforced against the acquired equity.

Here, the sum of $1,766.03 was paid by Gauthier against the first mortgage after bankruptcy. Ms. Losavio loses nothing by virtue of this application of Losavio, as had Gauthier not partially discharged the first mortgage by this sum the holder of the first mortgage would have been entitled to a correspondingly larger sum from the proceeds of the sheriffs sale. Here, the jurisprudence dictates that Gauthier is entitled to the sum of $1,766.03 from the proceeds, as was awarded by the trial court.

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

AFFIRMED.


author: LEAR, Judge.

text:
    Nabil SAAD and Gertrude Prince Saad v. Jan David ANDERSON and Jane Barrett Anderson.
    No. 14711.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.

      Donna W. Lee, Baton Rouge, for plaintiffs-appellees Nabil Saad and Gertrude Prince Saad.
    Robert W. Stratton, Baker, for defendants-appellants Jan David Anderson and Jane Barrett Anderson.
    Before LEAR, CARTER and CHIAS-SON, JJ.
   LEAR, Judge.

Plaintiffs, Nabil Saad and his wife, Gertrude Prince Saad, filed this suit seeking damages for breach of contract and a reduction in the purchase price of a house which they bought from defendants, Jan David Anderson and his wife, Jane Barrett Anderson. Defendants answered, generally denying the allegations of plaintiffs’ petition and further averring that the defects were apparent. At the close of trial, the district court rendered judgment in favor of plaintiffs in the sum of $60.00 on the demand for breach of contract and granted a $4,960.00 reduction in the purchase price of the home. The trial court also assessed expert witnesses’ fees in the sum of $750.00 and awarded plaintiffs $1,500.00 attorneys fees. Defendants then moved for a new trial, which was subsequently denied. Defendants have suspensively appealed to this court; and plaintiffs have answered the appeal, seeking increases in the reduction of the purchase price and attorneys fees.

The act of sale of the house in question was passed on July 24, 1978. The purchase price was $83,400.00. Prior to the sale, plaintiffs had inspected the home on two occasions. On these two occasions, plaintiffs had noticed various minor defects. In the purchase agreement, defendants agreed to correct these defects. The trial court concluded, and the record supports, the fact that the only defect included in that list not to be repaired were some gaps in the wall alongside the fireplace.

Shortly after moving in, plaintiffs began to experience more substantial problems with the house. These problems allegedly involved (1) an exterior wood deck which connects to the rear of the house, (2) a water leak in the chimney, (3) voids in the exterior mortar joints, (4) a large crack in the driveway and defects in the garage, (5) an odor emanating from the dining room floor, (6) an unlevel floor in the breakfast room, (7) lack of sufficient support rafters in the attic, (8) water-damaged carpet in the living room, and (9) lack of drainage in the back yard. After failing in their efforts to have defendants repair the alleged defects, plaintiffs filed the instant suit for a reduction in the purchase price, as well as for breach of contract for the defendants’ alleged failure to repair the items included in the purchase agreement.

At the close of trial, the trial court ruled that defendants had breached the purchase agreement by failing to repair the gaps at the side of the fireplace. The trial court determined that the cost to repair these gaps would be $60.00 and awarded that amount as damages. The trial court also awarded plaintiffs a reduction of $4,960.00 in the purchase price of the house based upon the following redhibitory defects and costs of repairing same:

(1) Exterior wood deck.$1,000.00
(2) Drainage problem under deck . 400.00
(3) Water leak in chimney. 200.00
(4) Voids in mortar joints. 350.00
(5) Crack in driveway and miscellaneous defects in garage. 1,950.00
(6) Unlevel floor in breakfast room. 700.00
(7) Added rafter support in attic. 100.00
(8) Water-damaged carpet in living room 360.00
TOTAL .$5,060.00

The trial court also concluded that Mr. Anderson was the builder of the home and, thus, was liable for attorneys fees of $1,500.00 under Article 2545 of the Louisiana Civil Code. The trial court expressly found that plaintiffs had not proven that the problem with the dining room floor and the back yard drainage were redhibitory defects. Hence, he disallowed a reduction based upon these items.

The issues before this court on appeal are:

(1) Did the alleged redhibitory defects exist at the time of the sale of the house?

(2) Did the trial court err in finding that the defects were not discoverable by “simple inspection” within the meaning of Louisiana Civil Code Article 2521?

(3) Did the trial court err in finding that Mr. Anderson was the builder of the house and, as such, liable for attorneys fees under Article 2545?

(4) Did the trial court err in not allowing a greater reduction based upon the defect in the wooden deck and in disallowing any reduction based upon the back yard drainage problem?

(5) Are plaintiffs entitled to an increase in attorneys fees for services rendered on appeal?

On appeal, defendants contend that plaintiffs failed to prove that the alleged defects existed at the time of the sale of the house. It is well established that a successful plaintiff in a redhibitory action must prove, inter alia, that the alleged defect or defects existed at the time of the sale. La.Civ.Code art. 2530; Moreno’s, Inc. v. Lake Charles Catholic High Schools, Inc., 315 So.2d 660 (La.1975); Ball v. Ford Motor Company, 407 So.2d 777 (La.App. 1st Cir. 1981). The trial court’s conclusion on this factual issue should not be disturbed unless a review of the entire record reveals that it is clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Ball v. Ford Motor Company, supra.

In the instant case, the record supports the trial court’s finding that the defects existed at the time of the sale. The testimony of Mr. W. J. Evans, an architect, stipulated by the parties to be an expert in the field of home construction and repairs, indicated that all of the defects resulted from poor construction. Mrs. Saad also testified with respect to certain defects, that Mr. Anderson had told her about them and promised to repair them. The testimony of Marge B. Mackey, the real estate agent who brought the parties together, corroborated Mrs. Saad’s testimony in this latter respect. Under these circumstances, the record reveals a reasonable factual basis for the trial court’s conclusion and that conclusion is not clearly wrong. See Arcene aux v. Domingue, supra.

In addition to proving that the defect or defects existed at the time of the sale, plaintiff in a redhibitory action also has the burden of establishing that the defects were not apparent, i.e. they were not discoverable by “simple inspection”. La. Civ.Code art. 2521. In the instant case, the trial court found that the defects were not apparent. The testimony of Mrs. Saad that she and her husband inspected the house on two occasions and did not notice defects, other than those included in the list in the purchase agreement, supports the trial court’s conclusion. Mrs. Saad further testified that the defects did not appear until after plaintiffs had already moved into the house. Ms. Mackey also testified that she did not notice the defects prior to the sale, except for those which defendants promised to repair. Hence, the trial court’s conclusion is not clearly wrong. See Arceneaux v. Domingue, supra.

Defendants also contend that the trial court erred in finding Mr. Anderson to be the builder of the home and, as such, liable for attorneys fees under Louisiana Civil Code Article 2545. The builder of a home is presumed to know its vices and thus is liable for attorneys fees under Article 2545. Tuminello v. Mawby, 220 La. 733, 57 So.2d 666 (1952); Brown v. Dauzat, 157 So.2d 570 (La.App. 3rd Cir. 1963).

In the instant case, the trial court found that the pleadings had been enlarged by evidence at trial which established that Mr. Anderson was the builder of the house in question. On appeal, defendants argue that, in fact, J. D. Anderson, Ltd., a corporation, was the builder of the house. However, there is no evidence in the record which would suggest that the corporation rather than Mr. Anderson personally was the builder. In fact, Mr. Anderson’s own testimony indicated that he was the builder of the house. Mr. Anderson testified on direct examination as follows:

“Q. How many homes have you built in the last five years to your knowledge?
A. Approximately twenty.
Q. In all those constructions, have you ever had any problems such as this?
A. No.
Q. Mr. Anderson, the home in question here, was that built by you to reside in or on speculation?
A. It was supposed to be to reside in.
Q. And what was the reason for you to sell the home?
A. To move to another home I’d built.
Q. Was the new home — was it more expensive, larger?
A. Yes.
Q. The home in question, was it designed by an architect?
A. Yes.”

Our review of the record indicates that the trial court’s finding that Mr. Anderson is the builder of the house is not clearly wrong. Accordingly, we affirm its ruling that plaintiffs are entitled to attorneys fees under Article 2545.

In their answer to defendants’ appeal, plaintiffs contend that they are enti-tied to an increase in the sum awarded by the trial court as a reduction in the house’s purchase price. Specifically, plaintiffs argue that they are entitled to $3,200.00 rather than the $1,000.00 awarded for repair of the wooden deck, and that they are entitled to $2,000.00 to rectify the back yard drainage problem.

Mr. Evans estimated that the services and materials necessary to repair the defects in the wooden deck would be $3,200.00. However, in its oral reasons, the trial court stated that it did not believe that all the work suggested by Mr. Evans would be necessary to repair the deck. Instead the court concluded that the less extensive repairs mentioned by Mr. Evans under cross-examination would be sufficient. The court accepted Mr. Evans’ estimate of $1,000.00 for these more limited repairs. In so doing, the trial court did not abuse the broad discretion with which it is vested in assessing the amount of a reduction in the purchase price of the thing sold. See Lemoine v. Hebert, 395 So.2d 353 (La.App. 1st Cir. 1980); Cassey v. Arnaudville Industries, Inc., 393 So.2d 215 (La.App. 1st Cir. 1980).

The trial court also concluded that the drainage problem caused by a low spot in the back yard was not a defect. The trial court obviously believed that the low spot did not serve to “diminish the value” of the thing purchased by plaintiffs. See La. Civ.Code art. 2541. We do not believe the trial court was clearly wrong in so finding.

Plaintiffs also request an increase in attorneys fees for services rendered on appeal. However, because plaintiffs sought additional relief on appeal, i.e. an increase in quantum, which was denied at the trial level and is denied on appeal, they are not entitled to an increase in attorneys fees for services rendered on appeal. Kleas v. Mayfield, 404 So.2d 500 (La.App. 3rd Cir. 1981); Hebert v. Aetna Casualty and Surety Company, 400 So.2d 695 (La.App. 1st Cir. 1981).

As we noted earlier, the amount of the reduction awarded by the trial court does not agree with the amount specified in the signed judgment. This difference of $100.00 is obviously a clerical error made by the party who prepared the judgment. We are vested- with the authority to correct clerical errors in the trial court’s judgment on appeal. See La.Code of Civ.Proc. art. 2164; Jackson v. East Baton Rouge Parish, 331 So.2d 64 (La.App. 1st Cir. 1976). Accordingly, we will amend the trial court’s judgment to increase the amount awarded for reduction in the purchase price from $4,960.00 to $5,060.00.

For the foregoing reasons, the judgment of the trial court is amended to increase the award to plaintiffs for reduction in the purchase price from $4,960.00 to $5,060.00. In all other respects, the judgment of the trial court is affirmed. Costs of appeal are to be borne by defendants.

AMENDED IN PART AND, AS AMENDED, AFFIRMED.

      . As can be seen from our total of the trial court’s award, the signed judgment awarding $4,960.00 is $100.00 less than the amount actually awarded by the trial court in its oral reasons.

      . Article 2545 provides:
      “The seller, who knows the vice of the thing he sells and omits to declare it, besides the restitution of price and repayment of the expenses, including reasonable attorneys’ fees, is answerable to the buyer in damages.”


author: PONDER, Judge.

text:
    Pete PENNINGTON v. F. G. SULLIVAN, JR., CONTRACTORS, INC., et al.
    No. 14757.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.
    Rehearing Denied July 13, 1982.

      Arthur Cobb, Baton Rouge, for plaintiff-appellant Pete Pennington.
    Gerard E. Kiefer, and Paul Marks, Jr., Baton Rouge, for defendant-appellee F. G. Sullivan, Jr., Contractors, Inc.
    Before ELLIS, PONDER and SAVOIE, JJ.
   PONDER, Judge.

Plaintiff appealed from a summary judgment dismissing F. G. Sullivan, Jr., Contractors, Inc., one of five defendants.

The issue is whether summary judgment was appropriate.

We reverse and remand.

Plaintiff was injured when a dump truck pulled out in front of him, causing him to lose control of his motorcycle. In a suit for his damages, he alleged that the dump truck causing the accident was owned or operated by the defendants, F. G. Sullivan, Jr., Contractors, Inc. and/or J. H. Jenkins Contractors, Inc. Motions for summary judgment were granted in favor of defendants, Sullivan, Jenkins and a third defendant. Plaintiff has appealed only from the judgment in favor of Sullivan.

The record, designated by the plaintiff, contains: the petition, the motion by Sullivan and a supporting affidavit, opposition by plaintiff and a supporting affidavit, a job report evidently issued by the City-Parish and the judgment of dismissal. The briefs of both counsel, the motion for summary judgment and the opposition to the motion indicate that other affidavits and depositions were utilized. However, plaintiff has designated only the above for inclusion in the appellate record and defendant has not requested that the record be supplemented. La.C.C.P. Art. 2128. References to other sources and the attachment to defendant’s brief of excerpts from the depositions are therefore unavailing.

The affidavit of F. G. Sullivan avers that he is the owner of the defendant corporation and that it had no dump trucks dispatched into the vicinity of the accident on the day plaintiff was injured.

The plaintiff’s opposition had attached an affidavit of an investigator, who said that Gary Sullivan, an employee of Sullivan, reported that he checked the company’s daily reports for the date of the accident and found that although the records reflected no work was performed that day, some materials might have been hauled and that information obtained from the City-Parish indicated that Sullivan did work at the job on the day of the accident. He further stated that an inspector with the Louisiana Department of Transportation and Development said that Sullivan might have had dump trucks operating in the area on the date in question.

In the final paragraph of his affidavit, the investigator refers to a copy of the City-Parish records attached to a deposition. While this deposition is not in the appellate record, a copy of a job report showing that Sullivan, a contractor on the job, performed work on the date of the accident follows the affidavit. Since the job report has not been sworn and certified, it is not properly in the appellate record and cannot be considered.

Although much of the affiant’s statement is inadmissible into evidence and cannot be considered, the conversation with Gary Sullivan serves as an exception to the hearsay rule. Material statements of an agent who is acting for a principal are admissible when offered by a party opponent. Myers v. Sudo, 377 So.2d 482 (4th Cir. 1979), writ denied 380 So.2d 100 (La.1980).

Any doubt concerning a dispute as to a material fact must be resolved against granting the motion for summary judgment. Gulf-Wandes Corporation, et al. v. Vinson Guard Service, Inc., et al., 393 So.2d 207 (1st Cir. 1980), writ denied 397 So.2d 1359 (La.1981). The record on appeal does not dissipate the factual issue of whether defendant’s trucks were in the area on the day of the accident.

For these reasons, the decision of the trial court is reversed at Sullivan’s cost for the appeal. All other costs are to await the final outcome. The case is remanded for additional proceedings.

REVERSED AND REMANDED.

      . La.C.C.P. Art. 2128:
      “The form and content of the record on appeal shall be in accordance with the rules of the appellate court, except as provided in the constitution. However, within three days, exclusive of holidays, after taking the appeal the appellant may designate in a writing filed with the trial court such portions of the record which he desires to constitute the record on appeal. Within five days, exclusive of holidays, after service of a copy of this designation on the other party, that party may also designate in a writing filed with the trial court such other portions of the record as he considers necessary. In such cases the clerk shall prepare the record on appeal as so directed, but a party or the trial court may cause to be filed thereafter any omitted portion of the record as a supplemental record. When no designation is made, the record shall be a transcript of all the proceedings as well as all documents filed in the trial court.”

      . La.C.C.P. Art. 967:
      “Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or by further affidavits.
      When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him.
      If it appears from the affidavits of a party opposing the motion that for reasons stated he cannot present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
      If it appears to the satisfaction of the court at any time that any of the affidavits presented pursuant to this article are presented in bad faith or solely for the purposes of delay, the court immediately shall order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused him to incur, including reasonable attorney’s fees. Any offending party or attorney may be adjudged guilty of contempt.”


author: SAVOIE, Judge.

text:
    MARYLAND CASUALTY COMPANY & SOUTHERN EQUIPMENT, INC. v. WATSON MARINE REPAIR & CLEANING SERVICE, INC.
    No. 14761.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.
    Rehearing Denied July 13, 1982.

      John W. Perry, Jr., Baton Rouge, for plaintiff-appellee Maryland Cas. Co. & Southern Equipment, Inc.
    E. Wade Shows, Baton Rouge, for defendant-appellant Watson Marine Repair & Cleaning Service, Inc.
    Before ELLIS, PONDER and SAVOIE, JJ.
   SAVOIE, Judge.

FACTS IN GENERAL:

On November 28, 1978, a large air compressor was leased by Watson Marine from Southern Equipment. Due to mechanical problems, the compressor was several times removed by the lessor and replaced with another. On May 15th, 1979, a mechanic sent by Southern Equipment to try to remedy the latest problem, reported to his superior that the machine was leaking and could not be safely used. This man, Mr. Robert Bruns, Vice-President and General Manager of Southern, immediately called Mr. Gerald Schilling, General Superintendent of Watson Marine:

“I called out there to talk to Captain Watson, Billy, and he was out on the river. So I asked to talk to whoever was in charge, and it was Schilling. So we got on the phone and we was talking, and I said, look, the mechanic just informed me of a problem we have out there with the compressor, and it’s a pretty dangerous situation. I said, we need to shut that piece of equipment down and get it swapped out immediately. He said, well, we can’t do that. The river is up. The work barge, we can’t get it close enough to the levee. I said, well, under that circumstance, I said, we are going to have to shut that unit down and take full responsibility because we have to swap it out. It can’t continue to run like that. He said, I’ll do that. I’ll call you when I can swap it out, get the barge to the levee.” (Tr. page 145) (Emphasis Ours)

On June 13, 1979, while still on the Watson barge, the compressor caught fire and was destroyed. Watson employees all affirm that the machine had not been used since Mr. Bruns’ call and that it was not in use when it caught fire. Evidence showed that Watson had run pipes ashore to make use of a shorebased compressor of its own. Investigation failed to reveal anything about the cause of the fire.

A written lease agreement produced by Southern provides that the lease is only terminated by the return of the equipment to Southern and that the risk of loss of the equipment rests with the lessee during the term of the lease.

Watson Marine denied that any authorized person ever signed the lease form in question and refused to pay. Thereupon, Southern recovered its loss (minus a $5,000.00 deductible amount) from its insurer, Maryland Casualty. Southern then sued Watson for the deductible and Maryland Casualty sued on its subrogation. Watson reconvened against Southern for damage caused to certain hoses on its barge by the fire in the compressor.

The District Court enforced the written lease according to its terms, giving judgment in favor of Southern for $6,912.00 and in favor of Maryland Casualty for $14,-519.00, and dismissing Watson’s reconven-tional demand. From that judgment, Watson has taken this appeal.

FACTS SURROUNDING CONFECTION OF THE LEASE:

On November 28, 1978, a need arose at Watson Marine for the use of an air compressor. Mr. Gerald Schilling, who did not himself have authority to enter into contracts for the corporation, telephoned Mr. Douglas Mayeaux, Vice-President and part-owner of Watson Marine, to inform him of the need and get permission to lease the needed machine. Obtaining this, he looked in the yellow pages for an equipment rental business (Tr. 105); called Southern and spoke with Mr. Ken Sides, inside salesman at Southern Equipment. He testified that he ordered a compressor of the needed type to be delivered and gave the address of Watson, but did not discuss the terms of the lease — not even bothering to ask the monthly rent. Ken Sides confirms Schilling’s account of their conversation, though adding that he knew Mr. Schilling because Schilling had rented equipment from him once before. Sides, immediately after his conversation with Schilling, prepared a standard form lease agreement used by Southern Equipment and gave it to the truck driver with instructions to deliver the leased equipment and have the form signed. The truck driver was unable to testify at the trial because he had had a stroke.

Q. Did you tell the truck driver to contact Gerry [Gerald Schilling] when he got to the site?
A.No, sir. I didn’t.
Q. Did you tell him to have the rental agreement executed by someone in authority at Watson Marine?
A. No, sir. I didn’t.
Q. The normal procedure is to just have anybody sign it who accepts delivery of the equipment?
A. Right, yes, sir.
Q. Whether it’s a laborer or the president of the company?
A. True.

(Tr. 134-5)

The compressor was received at the Watson site by Larry Mayeaux, the yard mechanic (son of Douglas Mayeaux) who testified that he signed the rental agreement, believing it to be a mere drayage receipt, and then (probably) gave the form to Gerald Schilling, who (again probably) passed it on to the accounting department.

Monthly rent charges were paid without comment by Watson Marine until the time of the fire.

LEGAL ISSUES ON APPEAL:

A. Whether the written lease ever entered into force.
B. Whether it remained in force at the time of the fire, after the conversation of May 15, 1979, wherein Southern assumed full responsibility.
C. The reconventional demand of Watson.

A. THE SIGNING OF THE LEASE; ITS SUBSEQUENT RATIFICATION.

In Southern States Equipment v. Jack Legett Co., 379 So.2d 881 (La.App. 4th Cir. 1980), where the plaintiff sued to enforce this same form of lease and was met with the same defense — that the form was signed by a construction foreman not authorized to bind his company — the Court of Appeal said that by paying invoices submitted by the lessor, the lessee ratified the act of its foreman in signing the lease. In that case, the foreman, Bridges, had signed identical leases with Southern on behalf of his company on thirty-one previous occasions. In our case, there was evidence of only one instance of prior dealings between the parties. Further, even though the form lease, by its terms, obligated the lessee to maintain the equipment, return it in the same condition in which it was received, and to continue to pay rent even if the equipment did not function, the parties never actually observed these terms. Instead, whenever trouble arose with the equipment, the lessee promptly complained to the lessor, who, just as promptly, sent someone to repair or replace it. Of course, this may just show forbearance on the part of the lessor, but we think, in this instance, it is evidence that the parties never intended, as a practical matter, to be bound by the terms set out in the form lease. A resolution of this question, however, is not necessary to our decision. Assuming that the terms of the form lease never came into force, use of the equipment and regular payment of rent, coupled with the evidence of the phone conversations between the principals, is certainly enough to show existence of a simple contract of lease, the terms of which are governed by Title IX of the Civil Code. Article 2697 lays the risk of loss of the thing leased during the term of the lease, where there is no showing of fault of the lessee, on the lessor. This would effectively dispose of the plaintiff’s claim.

B. WAS THE LEASE IN FORCE AT THE TIME OF THE FIRE?

On the alternative theory, that the form lease was consented to by the parties and came into force, the result we reach is no different, since we find it to have been conclusively proven that the lease was can-celled by mutual consent of the parties pri- or to the fire. This conclusion is based on the conversation between Mr. Bruns and Mr. Schilling in May, 1979, the testimony concerning which has been quoted earlier.

There is no obstacle in law to the subsequent oral modification of a written instrument. Tholl Oil Co. v. Miller, 197 La. 976, 3 So.2d 97 (1941); Salley v. Louviere, 183 La. 92, 162 So. 811 (1935); Comment, Louisiana’s Parol Evidence Rule: Civil Code Article 2276, 35 La.L.R. 779, 790 (1975). When Mr. Bruns told Mr. Schilling that the rented machine was dangerous to operate, he also told him, to use his own words given under oath in the trial court, “... we are going to have to shut that unit down and take full responsibility”. What can the taking of full responsibility by the lessor mean except that the obligations of the lessee under the lease are cancelled? Mr. Bruns was then telling Mr. Schilling that, since his (the lessor’s) machine had broken down and since through the fault of neither party, it could not then be exchanged, Watson (the lessee) would not have to pay further rent on it or bear any other obligations under the lease so long as he discontinued using it, took reasonable care of it, and notified the lessor when the river receded sufficiently that it could be removed. When the machine was subsequently destroyed through no provable fault of the lessee, the loss fell upon its owner.

The judgment of the trial court in favor of Southern Equipment Co. and Maryland Casualty Co. is reversed.

C. WATSON’S RECONVENTIONAL DEMAND

Watson claims $9,021.21 lost property and $4,530.00 lost profits caused by the fire in Southern’s compressor and the consequent brief interruption of Watson’s operations. They bring their claim under Civil Code Article 2960 which imposes on a depositor the obligation to reimburse the depositary “for the losses which the thing deposited may have occasioned him”. As noted in Watson’s brief, Michael Rubin, writing in 35 La.L.Rev. 839 cites Coker v. Continental Ins. Companies, 265 So.2d 327 (La.App. 3rd Cir. 1972) and Fredieu v. City of Winnfieid, 180 So.2d 48 (La.App. 2d Cir. 1965) for the proposition that depositors will not be held liable under this article unless they knew or should have known of the dangerous nature of the deposited article and failed to warn the depositary. These cases correctly state the law. Here the depositor did warn the depositary of the danger of operating the compressor. There is no evidence whatsoever that the depositor knew or should have known that the compressor was dangerous sitting unused. As said before, no party was able to discover anything about the cause of the fire.

We believe the reconventional demand was properly dismissed by the trial judge.

Judgment of the trial court in favor of Southern for the sum of $6,912.00 and in favor of Maryland Casualty for the sum of $14,519.00 is hereby reversed. Judgment dismissing the reconventional demand of Watson is affirmed, costs to be shared equally by the parties litigant.

REVERSED IN PART, AFFIRMED IN PART.

      . The terms of the form lease being printed in very fine print on the back of what, at first glance, appeared to be a delivery ticket.


text:
    Joseph Norris GRIFFIN v. D. B. LITTLEFIELD, et al.
    No. 14793.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.
    Rehearing Denied July 13, 1982.
    Larry P. Boudreaux, Thibodaux, for plaintiff-appellant Joseph Norris Griffin.
    Charles J. Leblanc, Thibodaux, and James J. Davidson, Lafayette, for defendants-ap-pellees D. B. Littlefield, W. O. Simma, Denny Wilson and P. L. Shine.

      Joel E. Gooch, Lafayette, for all defendants-appellees.
    Before COVINGTON, COLE and WATKINS, JJ.
   WATKINS, Judge.

This is an action brought by Joseph Norris Griffin, a former employee of Power Rig Drilling Company, Inc. for injuries allegedly sustained by plaintiff on June 6,1975, while in the course and scope of his employment. The action is an “executive officer” suit naming as sole defendants certain corporate officials of Power Rig, which action was permitted at the time the alleged accident occurred, the worker’s remedy not having been limited to workmen’s compensation for the faults of executive officers until the enactment of Act No. 147 of 1976, which amended LSA-R.S. 23:1032 to bar “executive officer” suits. The trial court rendered judgment for defendants. We affirm.

The Reasons for Judgment of the learned trial judge fully discuss all issues raised by appellant on appeal or that are applicable to a determination of the matter. After having fully reviewed the law, testimony, pleadings, and exhibits, we find the trial court’s reasons to be correct. We, therefore, adopt the Reasons for Judgment of the trial judge as our opinion, and quote from them in their entirety:

“This is an executive officer suit instituted by plaintiff, Joseph Norris Griffin, against the defendants, D. B. Littlefield, W. 0. Simma, P. L. Shine and Denny Wilson, for damages for personal injuries arising out of a work related accident that occurred on or about June 6, 1975.
At the time of the accident in question the plaintiff was employed as a derrick-man for Power Rig Drilling Co., Inc., a closely held corporation with its main offices located in Lafayette, Louisiana. Power Rig conducts drilling operations throughout the Gulf Coast area for various oil companies. The defendant, D. B. Littlefield, is the president of the company. He handles the major capital expenditures of the company, construction, corrected holes and rig shutdown. The defendant, W. 0. Simma, did the sales and contract work for the company. The defendant, P. L. Shine is the secretary of the company and he does its office work. The defendant, Denny Wilson, is the company pilot and supervisor of maintenance of company aircraft.
Beneath the officers and/or directors in the chain of command was one general drilling superintendent who had overall charge of drilling operations. At this time Power Rig owned approximately 10 or 12 drilling rigs. Beneath the general drilling superintendent were three district drilling supervisors who shared responsibility for drilling operations of these rigs. Beneath the district drilling supervisors were the company tool pushers. Each tool pusher was in charge of the overall drilling operations and the drilling crew of the particular rig to which he was assigned. A drilling crew consisted of a driller or motorman, three floor hands and a derrickman. While working in the derrick the derrickman stands on a rectangular platform referred to as the ‘monkey board’, some 80' above the rig floor. On the left and right sides of the monkey board there are sets of metal bars (9 or 10 in number) referred to as the fingers which extend almost all the way to the monkey board from a U-shaped metal plate which surrounds it. The fingers are spaced 5 or 6 inches apart and they serve as racks for the 90 foot stands of drill pipe. When the rig is assembled and the equipment is fitting properly the monkey board fits into a slot between and level with the left and right sets of fingers. The derrickman’s job is to remove the drill pipe from the fingers as it is being put into the drill hole and re-rack the pipe as it is being taken out of the drill hole. While doing this he often has to step on the fingers to reach for pipe at the rear of the fingers. He, therefore, wears a harness around the waist secured to the derrick by a safety line. During the racking and unracking process the fingers frequently get bent or pinched-in and the pipe will jam. When this occurs the derrickman, with the aide of the floor hands, uses a cable referred to as the air hoist line to straighten the fingers and to pull jammed pipe out of the fingers.
On the day of the accident there were some bent fingers and the plaintiff was using the air hoist line to free a pipe. The accident occurred when, as he was standing on the fingers reaching for a stand of drill pipe, either his foot slipped off of one of the fingers or the air hoist line hit him in the back causing him to fall between one of the sets of fingers and the monkey board and to strike the lower portion of his back on the edge of the monkey board.
As a result of the foregoing the plaintiff instituted this action for damages for his personal injuries alleging negligence on the part of one or more of the defendants.
In response, the defendants answered denying the allegations of the petition and alleging contributory negligence and assumption of risk on the part of the plaintiff as a bar to his recovery.
The plaintiff contends that as officers or supervisory co-employees of Power Rig Drilling Co., Inc., the defendants owed him a duty to correct unsafe working conditions; that the defective condition of the fingers rendered working conditions in the derrick unreasonably dangerous and unsafe; that the defendants knew or should have known of the existence of this defective condition, and; that they had ample time within which to correct the defective condition. The plaintiff further contends that the defendants’ failure to timely correct the defective condition was a breach of duty which constituted negligence on their part and that such negligence was the sole cause of his accident and resulting injuries.
The defendants contend that the plaintiff failed to sustain the burden of proving that they breached a duty which caused his accident and, alternatively that the plaintiff was contributorily negligent by failing to report the unsafe condition, and, further in the alternative, that the plaintiff voluntarily assumed a known risk by continuing to work under conditions which were known by him to be unsafe.
The law is to the effect that every employer owes a duty to furnish employment which shall be reasonably safe for the employees therein. La.R.S. 23:13. However, as a prerequisite to recovery in an executive officer suit, the plaintiff must establish by a preponderance of the evidence that the employer delegated to one of the defendant executives the fulfilling of a personal duty owed to the plaintiff and that the breach of this duty caused damage to the plaintiff. Further, general administrative responsibility of an executive officer does not fall within the category of a personal duty. Canter v. Koehring Company, 283 So.2d 716 (La.1973); Chrisham v. Blum, 383 So.2d 458 (La.App. 4th Cir. 1980), writ denied.
The Court finds that the evidence fails to establish that any of the defendants owed a personal as opposed to general administrative duty to correct the unsafe conditions which allegedly caused the plaintiff’s accident and resulting injuries and, therefore, that the evidence is insufficient to warrant the imposition of liability on their part. As was hereinabove previously intimated, the evidence reflects that the safety aspects of Power Rig Co., Inc.’s drilling operations was (sic) simply not within the scope of their employment duties. Some of the defendants testified that their knowledge of the actual operation of a drilling rig is very limited and that they rarely, if ever, even visit the drilling sites.
Moreover, the Court finds that the personal duty to correct unsafe working conditions on the rigs was delegated by Power Rig Co., Inc. to its tool pushers. The evidence in this respect discloses that the tool pushers had overall charge of and responsibility for the particular rigs to which they were assigned, that they regularly inspected the rigs while they were disassembled and between drilling locations, that the derrickmen reported to the tool pushers when they had problems with unsafe working conditions and, that it was the personal responsibility of the tool pushers to see to it that any such conditions were corrected.
Since the Court finds that it was not the personal duty of any of the defendants to correct the unsafe conditions, which allegedly caused his accident, the plaintiff’s claims against the defendants must be denied.
For the foregoing reasons, judgment will be rendered in favor of the defendants herein and against the plaintiff denying his claims and dismissing his suit.
Judgment will be rendered accordingly.”

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

AFFIRMED.