author: EDWARDS, Judge.

text:
    RELIABLE CREDIT CORPORATION v. Nathan SMITH and Geraldine Smith.
    No. 14289.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1981.
    Rehearing Denied Nov. 23, 1981.

      Weldon J. Hill, II, Baton Rouge, for plaintiff-appellant.
    Richard W. Sroges, Baton Rouge, for defendants-appellees.
    Before CHIASSON, EDWARDS and LEAR, JJ.
   EDWARDS, Judge.

Plaintiff, Reliable Credit Corporation, filed suit to collect the alleged balance due of $3,230.58 on a promissory note executed by defendants, Nathan and Geraldine Smith. The Smiths raised in defense, and asserted in set off, claims arising under the Louisiana Consumer Credit Law, LSA-R.S. 9:3510 et seq. The trial court rendered judgment for Reliable in the amount of $174.97, representing the $3,225.58 which was stipulated as being owed to plaintiff, less $3,050.61 which defendants were entitled to set off. Reliable appeals the judgment of the district court. The Smiths have answered the appeal, seeking an increase in the amount of their set off. We affirm the judgment of the district court as amended.

On September 22, 1978, the Smiths executed a promissory note, secured by a chattel mortgage, in favor of Reliable Credit Corporation in the amount of $4,400.00. The note was payable in twenty-four monthly installments of $185.00 each, with the first installment due on November 5, 1978, and each subsequent installment due on the fifth day of each month thereafter.

The Smiths failed to make the payment due on November 5, 1978. On December 7, 1978, Nathan Smith went to the office of Reliable Credit Corporation in order to make a payment on his account. At that time, the November 5 and December 5 installments were due and outstanding. Smith paid $185.00 to George Vidrine, a representative of Reliable Credit Corporation. Vidrine deducted a $5.00 delinquency fee and applied the balance, $180.00, to the payment which was due on November 5. At Vidrine’s suggestion, Smith also paid a $46.00 deferral charge for the installment payment which was due on December 5, 1978.

The Smiths continued to fall behind in their installment payments, making them only irregularly. Finally, on September 26, 1979, Reliable accelerated the note and brought suit for the unpaid balance, less a rebate for the amount of unearned interest. Defendants filed their answer on October 25, 1979. On December 6, 1979, the Smiths filed an amended answer, alleging that Reliable had violated the Louisiana Consumer Credit Law. Written notice of these claimed violations was sent by certified mail to Reliable Credit Corporation and its agent for service of process and was received on December 7, 1979, and December 12, 1979, respectively. The alleged violations included a claim that the December 7, 1978, deferral charge was improperly imposed because the December 5 installment payment was not ten days delinquent at the time and the defendants had not agreed in writing to the deferral charge.

On January 31, 1980, (some 51-56 days after receipt of this notice) Reliable credited defendants’ account with a $5.00 refund for the delinquency charge made on December 7,1978, and switched the $46.00 deferral charge to apply to the November 5, 1978, installment payment.

The trial court held that Reliable was entitled to recover $3,225.58 on the note. The court further held that defendants were entitled to a set off of $3,050.61 due to plaintiff’s violation of the Louisiana Consumer Credit Law. This figure was computed as follows:

1. Imposed finance charge .$ 717.79
2. Penalty of three times the imposed finance charge . 2,153.37
3. Attorney fees in the amount of 25% of the imposed finance charges. 179.45
Total Set Off .$ 3,050.61

Judgment was rendered in favor of Reliable for the difference between the amount owed plaintiff and the amount of set off, $174.97, plus legal interest from date of judicial demand and 25% attorney fees.

Reliable Credit appeals, claiming that the trial court erred in:

1. Finding that plaintiff wrongfully imposed a $46.00 deferral charge on December 7, 1978;
2. Finding that plaintiff committed a bad faith violation of the Louisiana Consumer Credit Law; and
3. Assessing the penalty provisions of LSA-R.S. 9:3552.

Alternatively, plaintiff contends that if defendants were entitled to a set off, the trial court erred in allowing and fixing attorney fees.

Defendants have answered the appeal urging that the trial court erred in calculating the amount of the set off.

There is absolutely no doubt that plaintiff violated the Louisiana Consumer Credit Law, LSA-R.S. 9:3510 et seq. The imposition of both a deferral charge and a delinquency fee on December 7, 1978, was improper since plaintiff was properly entitled to impose only one of these charges. LSA-R.S. 9:3525 authorizes the imposition of a contractually agreed upon delinquency fee on an installment payment which is not paid within ten days after it is due. LSA-R.S. 9:3526 permits the parties to agree in writing to a deferral of an unpaid installment. Furthermore, if the loan contract so provides, LSA-R.S. 9:3526 permits the extender of credit to unilaterally impose a deferral charge if an installment payment is not paid within ten days of its due date.

When Nathan Smith made the $185.00 payment on December 7, 1978, the November 5 installment payment was more than ten days overdue. Under the above mentioned statutes, Reliable had the option of imposing a delinquency fee or a deferral charge since both were authorized by the loan contract. The payment card introduced at trial and testimony of Vidrine and Smith indicate that Reliable imposed a $5.00 delinquency fee. On December 7, 1978, the December 5 installment payment had not been in default for more than ten days. Reliable was not, therefore, entitled to unilaterally impose a deferral charge. Any deferral charge was required by LSA-R.S. 9:2526 to be agreed to in writing. The testimony presented at trial shows that the $46.00 deferral charge made on December 5, 1978, for application to the December 5 installment payment, was not made pursuant to a written agreement. The imposition of this $46.00 deferral charge was a violation of the Louisiana Consumer Credit Law.

As noted above, this violation, along with other claimed violations, was asserted by defendants in their amended answer to plaintiff’s petition. Additionally, written notice of these claimed violations was sent by certified mail to Reliable Credit Corporation and its agent for service of process, in accordance with the requirements of LSA-R.S. 9:3552. Nearly two months after these notices were received, Reliable attempted to rectify the improper imposition of a deferral charge by switching the $46.00 deferral charge to apply to the November 5 installment payment, cancelling the $5.00 delinquency fee previously assessed on the November 5 installment, and crediting the $5.00 to defendants’ account. Plaintiff maintained that this switch was authorized by LSA-R.S. 9:3526(A), which provides that a “deferral charge may be collected at the time it is assessed or at any time thereafter.”

The trial court held that this change was made too late to be effective. The court stated:

“It is submitted that the ‘at anytime thereafter’ language in this provision refers to anytime during the life of the loan itself, but that the creditor no longer enjoys this privilege after suit is filed, the obligation itself is matured, collection of the obligation is passed into the hands of an attorney and notice of alleged violation is received by the creditor, and more than thirty days have passed without correction of the error. To hold that a creditor could thereafter still make corrective additions and credits to the payment card in order to achieve compliance with the act would seem to render the provisions of the act itself meaningless and unenforceable.”

The trial court properly held that a creditor may not return improperly collected deferral or delinquency charges after suit is filed, the obligation is matured, collection of the obligation is passed into the hands of an attorney, notice of an alleged violation is received by the creditor, and more than thirty days have passed without correction of the error.

Reliable contends that the trial court erred in finding that it committed a not in good faith violation of the Louisiana Consumer Credit Law. The trial court’s finding of lack of good faith on the part of Reliable is a factual determination. Accordingly, this court’s review is limited to a determination of whether or not the trial court was clearly wrong in its finding. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Canter v. Koehring Co., 283 So.2d 716 (La.1973).

There was ample evidence on which the trial judge could have based a finding of lack of good faith on the part of Reliable. First of all, plaintiff violated the clear provisions of LSA-R.S. 9:3526 by not reducing the initial deferral agreement to writing. Furthermore, plaintiff attempted to “refund” the $5.00 delinquency charge and switch the $46.00 deferral charge well over thirty days after it had received notice of the credit law violations. A review of the record shows that the trial court’s finding of lack of good faith is not manifestly erroneous.

Both plaintiffs and defendants contend that the trial court erred in assessing the amount of penalties owed under LSA-R.S. 9:3552. LSA-R.S. 9:3552(A) provides in pertinent part as follows:

“Violations discovered as a result of written consumer complaint
(1) Intentional violations or violations not caused by good faith errors.
(a) If the court finds that the extender of credit has intentionally or as a result of error not in good faith violated the provisions of this chapter, the consumer is entitled to a refund of all loan finance charges or credit service charges and has the right to recover three times the amount of such loan finance charge or credit service charge together with reasonable attorney’s fees. The right to recover the civil penalty under this subsection accrues only after
(i) written notice is given to the extender of credit by certified mail addressed to the extender of credit’s place of business in which the consumer credit transaction arose;
(ii) a copy of such notice is mailed to the extender of credit’s agent for service of process; and
(iii) thirty days have elapsed since receipt of such notice by the extender of credit, and the violation has not been corrected.”

Defendants are entitled to recover under this statute because they have met both prerequisites; they have made a showing of Reliable’s lack of good faith and they provided the required notice.

The penalty portion of the statute provides that defendants are entitled, first, to receive a “refund of all loan finance charges.” By use of the term “refund” the statute implicitly means only those finance charges which were actually paid by the consumer. The trial court was correct in fixing this portion of defendants’ set off at $717,79.

LSA-R.S. 9:3552(A) goes on to provide that defendants have “the right to recover three times the amount of such loan finance charge.. . . ” The trial court held that this provision was limited to three times the amount of finance charges actually paid by defendants. This is an incorrect application of the statute.

LSA-R.S. 9:3516(20) defines “loan finance charge” as the sum of all charges payable directly or indirectly by the consumer for the extension of credit. Delinquency and deferral charges are not included in the calculation of loan finance charges. This statute makes it clear that the penalty provisions of LSA-R.S. 9:3552 are to be assessed on the basis of the loan finance charge imposed at the time the loan transaction was entered, rather than on the basis of the finance charges actually collected. An examination of the record reveals that the loan finance charge originally agreed to was $1,104.21. Defendants are entitled to recover three times this amount, $3,312.63.

LSA-R.S. 9:3552 gives defendants the right to recover attorney fees. The statute provides that such attorney fees “shall be measured by the time reasonably expended by the consumer’s attorney and not by the amount of recovery.” The trial court awarded attorney fees in the amount of 25% of the imposed finance charges, $179.45. The trial court erred in failing to tailor the award of fees to match the amount of time reasonably expended by the consumer’s attorney.

Reliable contends that, because defendants’ counsel did not submit proof of time expended, attorney fees were improperly awarded. This contention is without merit. There is nothing in the statute which absolutely requires that a consumer’s attorney submit a time sheet into evidence. A court has the inherent power to fix a reasonable attorney fee, where authorized by law, based on the amount of work required in the case as revealed by the record. On the basis of the record, which evidences the amount of preparation by defendants’ counsel, the complexity of the legal issues, and the degree of counsel’s expertise, attorney fees are fixed at $1,000.00.

As noted above, Reliable was found to be entitled to recover $3,225.58 from the Smiths. The set off to which the Smiths are entitled is as follows:

1. Refund of loan finance charges . 717.79
2. Penalty of three times the imposed finance charges. 8,312.63
3. Reasonable attorney fees. 1,000.00
Total Set Off .$5,030.42

The difference between defendants’ claim in set off and Reliable’s claim is $1,804.84. The Smiths are entitled to recover that amount.

For the foregoing reasons, the judgment appealed from is amended. It is hereby adjudged, ordered and decreed that there be, and there hereby is, judgment in favor of defendants, Nathan Smith and Geraldine Smith, and against Reliable Credit Corporation in the amount of $1,804.84 with legal interest from the date of judicial demand (December 6, 1979), and for all costs of these proceedings.

AFFIRMED AND AMENDED.


source: Caselaw Access Project

author: COVINGTON, Judge.

license: Public Domain

text:
    Louise M. REED, Individually and as Administratrix of the Estate of her Minor Children, Barbara Reed and Karen Reed v. YOR-WIL, INC., et al.
    No. 14322.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1981.
    Rehearing Denied Nov. 23, 1981.

      Sargent Pitcher, Jr., Rachel Pitcher Morgan, Michael C. Palmintier, Baton Rouge, for plaintiff-appellant Louise M. Reed, In-div. and as Administratrix of the Estate of Her Minor Children Barbara Reed & Karen Reed.
    Daniel R. Atkinson, Baton Rouge, for defendant-appellee Yor-Wil, Inc., William York and Maryland Casualty Co.
    John S. White, Jr., Baton Rouge, for defendant-appellee Yor-Wil, Inc.
    Before COVINGTON, COLE and WATKINS, JJ.
   COVINGTON, Judge.

This is a devolutive appeal by plaintiff-appellant, Louise M. Reed, individually and as administratrix of the estate of her minor children, Barbara Reed and Karen Reed, from a judgment maintaining the peremptory exception of defendants-appellees, Yor-Wil, Inc. and William York, and dismissing plaintiff’s suit with prejudice at her costs. We affirm.

The incident giving rise to the present litigation occurred on June 13, 1979, when the employee, Ervin Reed, while working as a pipe layer, in the course and scope of his employment with defendant, Yor-Wil, Inc., at the job site located in Lafayette, Louisiana, was killed when a trench in which he was digging collapsed. The plaintiff sued Yor-Wil, Inc. and William York, an alleged supervisory employee of Yor-Wil, and asserted “intentional acts,” as well as negligent acts, of the defendants, the pertinent articles of the petition reading as follows:

“3.
“Plaintiffs allege on information and belief that the proximate cause of the injuries sustained by the decedent and plaintiffs was the intentional act and/or negligence of defendant, Yor-Wil, Inc., which intentional act or negligence is particularized in the following nonexclusive respects:
“(a) Failure to dig the aforementioned trench in the manner prescribed by industry regulations;
“(b) Failure to provide appropriate safety equipment against the advent of a collapse such as that which occurred;
“(c) Failure, generally, to exercise the degree of care commensurate with the factual situation herein described.
“4.
“Additionally and/or in the alternative, plaintiffs aver that supervisory personnel of defendant Yor-Wil, Inc., acted intentionally and/or negligently and breached duties owed plaintiffs’ decedent to furnish him a safe place within which to work, in causing or permitting the aforementioned dangerous conditions to exist on the job site. More particularly plaintiffs aver that defendant William York, negligently and/or intentionally breached duties owed directly and personally to decedent, being duties which had been delegated to him by defendant, Yor-Wil, and assumed by him, which negligent and/or intentional breach was a proximate cause of the accident sued on, in that said defendant knew or should have known of the dangerous and unsafe conditions referred to above, but that he allowed the dangerous and unsafe situation to remain, and required decedent to work under such conditions, which acts and failures to act constituted intentional and/or negligent breaches of duties owed directly and personally to plaintiffs’ decedent.”

The matter came on to be heard on defendants peremptory exception of no cause of action, on the ground that plaintiff’s exclusive remedy is in workmen’s compensation. The exception was sustained after hearing, with well-considered written reasons by the trial court, which are annexed as Appendix I.

There is no merit to plaintiff’s contention on appeal that the trial court erred in sustained defendants peremptory exception of no cause of action. LSA-R.S. 23:1032, as amended by Act 147 of 1976, provides, in pertinent part, that the rights and remedies granted to an employee or his dependent by the Louisiana Workmen’s Compensation Act are exclusive of all other rights and remedies of such employee, his representatives, dependents, or relations against his employer or an employee of his employer, except for an “intentional act.”

Plaintiff’s petition affirmatively alleges that the employee was killed while working with Yor-Wil, and that York was in a supervisory capacity as an employee of Yor-Wil, with respect to the work being undertaken. The well-pleaded facts of the petition are accepted as true for adjudication of the exception of no cause of action, this exception being used to raise the question of whether the petition alleges a grievance for which the law affords a remedy to anyone. Bamber Contractors, Inc. v. Henderson Brothers, Inc., 345 So.2d 1212 (La.App. 1 Cir. 1977). The pleadings show that there is no well-pleaded factual allegation of an “intentional act” that caused the accident and death of Reed. There is no fact in the pleadings to indicate that either defendant entertained a desire to bring about the results obtained, or should have believed that the results were substantially certain to follow anything they did, or did not do. The facts alleged cannot be construed as alleging an “intentional act.”

In our opinion, Bazley v. Tortorich, 397 So.2d 475 (La.1981), by the Louisiana Supreme Court is dispositive of the instant case. Our Supreme Court found no constitutional impediments to LSA-R.S. 23:1032, as amended by Act 147 of 1976, reversing the contrary decision of the Court of Appeal, Fourth Circuit, in Bazley v. Tortorich, 380 So.2d 727 (La.App. 4 Cir. 1980). The Supreme Court interpreted the “intentional act” exception to the immunity provided by LSA-R.S. 23:1032 to mean that the defendant either desired to bring about the physical results of his act or believed that they were substantially certain to follow from what he did.

The issue raised by plaintiff’s specification of error number one is whether or not the allegations of the petition in this ease are sufficient to allege an “intentional act” exception to the immunity provided by the statute, as amended.

The allegations of the petition in the instant case fall far short of alleging material facts constituting an “intentional act” as defined by the Supreme Court in Bazley. See Nettles v. Bowlin, 386 So.2d 658 (La.App. 1 Cir. 1980). Paragraphs 3 and 4 of the petition characterize the defendants’ conduct as alternatively “intentional” and “negligent”. Although Louisiana adheres to a system of fact pleading, LSA-C.C.P. arts. 854, 891, mere conclusion-ary allegations are never sufficient to state a cause of action. In re Phoenix Building & Homestead Ass’n, 203 La. 565, 14 So.2d 447 (1943); Williams v. Chrysler Motor Company, 271 So.2d 551 (La.App. 1 Cir. 1972).

Hence, an allegation of “negligence” is merely the pleader’s own conclusion of law. Naquin v. Baton Rouge Coca-Cola Bottling Co., 182 So.2d 691 (La.App. 1 Cir. 1965), writ refused, 248 La. 1100, 184 So.2d 24 (1966). Similarly, an allegation of “intentional act” is merely the pleader’s own conclusion of law. See Bazley v. Tortorich, supra; Johnson v. Narcisse, 373 So.2d 207 (La.App. 4 Cir. 1979). In Bazley, the plaintiff alleged that the accident was caused by his co-employee’s “intentional acts” in operating a garbage truck without a working horn, disregarding safe mechanical and electrical maintenance standards, failing to keep a proper lookout, failing to see what he should have seen, failing to stop in a safe place and failing to warn plaintiff of an oncoming danger. The Supreme Court disregarded the “intentional acts” allegation, stating “The pleadings do not express or imply that the co-employee garbage truck driver desired the consequences of his acts or omissions or that he believed the consequences were substantially certain to result from them.”

Disregarding the “intentional act” conclusions of plaintiff’s petition, the remainder of the petition alleges only that plaintiff’s death resulted from defendant’s failure to dig a trench as prescribed by industry regulations and failure to provide safety equipment against the advent of trench collapse, when defendants knew or should have known that such failures were dangerous and unsafe. These allegations do not satisfy the Bazley definition of “intentional act”. The alleged physical result of defendants’ conduct was the death of plaintiff’s decedent. The petition does not allege either that defendants desired to bring about the death of the employee, or believed that Reed’s death was substantially certain to follow from what defendants did. We hold that the petition fails to state a cause of action.

Plaintiff’s “motion to amend judgment” after signing the judgment sought leave of the trial court to amend the petition to state a cause of action. Plaintiff asserts in specification of error number two that the trial court erred in denying plaintiff’s motion, citing LSA-C.C.P. art. 934 and Tobin v. Jacobson, 369 So.2d 1161 (La.App. 1 Cir. 1979). This specification of error is also without merit.

LSA-C.C.P. art. 934 directs that a judgment sustaining a peremptory exception shall permit amendment to the petition when the grounds of the objection may be removed by the amendment. The record of this appeal does not show that the plaintiff represented to the trial court that an amendment to the petition would remove the objection raised by defendants’ peremptory exception of no cause of action. The plaintiff’s “motion to amend” merely alleged that plaintiff “desires and is entitled to” leave to amend the petition to state a cause of action. The first time plaintiff has indicated the scope of the amendment sought to the petition is in her appellate brief. Obviously, the trial court could not consider what had not been presented to it. That court is not to be faulted for insisting upon plaintiff’s compliance with LSA-C.C.P. art. 934, by requiring plaintiff to indicate that the proposed amendment to the petition would remove the objection pleaded by defendants’ exception.

Nevertheless, the proposed amendment is inadequate to state a cause of action under the “intentional act” exception to the immunity provided by LSA-R.S. 23:1032, as interpreted by Bazley, supra. Plaintiff’s proposed amendment to the petition alleges in pertinent part that defendants “knew or should have known to a virtual certainty that the consequences of their actions specified hereinbelow would be the injury of plaintiff’s decedent.” (Emphasis added.)

Insofar as plaintiff’s proposed amendment alleges what defendants “should have known”, it clearly fails to satisfy the Bazley “intentional act” definition (defendants’ conscious desire or actual belief concerning the physical results of their acts).

Disregarding the “should have known” allegation, the proposed amendment to the petition merely alleges that defendants knew to a virtual certainty that the consequences of their actions would be the injury of plaintiff’s decedent. As Baz-ley points out, “ ‘act’ refers to an external manifestation of will which must be voluntary, and ‘intent’ is present when the offender either desires the consequences of his act or when he knew that the consequences were reasonably certain to result from his act.” The defendants’ “acts” are pleaded: “requiring plaintiff’s decedent to participate in the digging of a trench, etc.” However, plaintiff alleges no material facts concerning the pleaded conclusion that defendants “knew” to a virtual certainty that the consequences of their actions would be the injury or death to plaintiff's decedent. The allegation in the proposed amendment to the petition that defendants “knew” to a virtual certainty that the consequences of their actions would be injury or death to plaintiff’s decedent is a mere conclusion of law, with no material facts to support it.

The Louisiana Supreme Court clearly rejected conclusionary allegations in Bazley, and required allegations of material facts to state a cause of action. Further, the Supreme Court stated in Bazley, “The principal legislative aim of the 1976 amendment [to LSA-R.S. 23:1032] was to broaden the class of defendants to be granted immunity from suits by injured employees in tort or delict.” This legislative aim should not be frustrated by requiring those benefitting from it to defend actions in which the petitions do not allege material facts of liability under one of the statutory exceptions to such immunity.

Tobin v. Jacobson, supra, relied on by appellant, does not state the nature or scope of the amendment to the petition proposed by the plaintiff in that case. It is, therefore, no authority for remanding this case for amendment of the petition, where plaintiff’s specifically proposed amendment is inadequate to remove the grounds of defendants’ exception.

For the foregoing reasons, we affirm the judgment of the District Court at plaintiff-appellant’s costs.

AFFIRMED.

APPENDIX I

LOUISE M. REED, INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE OF HER MINOR CHILDREN, BARBARA REED AND KAREN REED

VERSUS

YOR-WIL, INC., and WILLIAM YORK

* NUMBER 235,507 DIVISION M

* 19TH JUDICIAL DISTRICT COURT

PARISH OF EAST BATON ROUGE

* STATE OF LOUISIANA

WRITTEN REASONS FOR JUDGMENT

Pertinent Facts

Plaintiff is the surviving spouse of Ervin Reed who was killed when a trench in which he was working collapsed and partially buried him, eventually claiming his life. It is not disputed that Reed was in the course of his employment with defendant Yor-Wil, Inc. when the accident occurred. William York (Will Thomas York), the owner and president of Yor-Wil, Inc., was supervising the construction of the trench at the time of the accident and is joined as a defendant. Plaintiff alleges that the trench collapsed due to Mr. York’s disregard for industry safety standards in his supervision of the construction. She argues that York’s conduct should be classified as an “intentional act” as to which the workers’ compensation act should not grant immunity to York or to Yor-Wil, Inc. The defendants interposed a peremptory exception of no cause of action, on the ground that plaintiff’s exclusive remedy is in the compensation act. For the following reasons, the exception will be sustained.

Law and Reasons

La. R.S. 23:1032 provides in part:

“The rights and remedies herein granted to an employee or his dependent on account of an injury, or compensable sickness or disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights and remedies of such employee, his personal representatives, dependents, or relations, against his employer, or any principal or any officer, director, stockholder, partner or employee of such employer or principal, for said injury, or compensable sickness or disease. * * * ”

The exclusive remedy available to the dependents or relations of an injured employee against an employer, or an officer or employee of an employer is in workers’ compensation. The second paragraph of the article provides for certain exceptions.

“Nothing in this Chapter shall affect the liability of the employer, or any officer, director, stockholder, partner or employee of such employer or principal to a fine or penalty under any other statute or the liability civil or criminal, resulting from an intentional act.”

If the injury to the employee is caused by an intentional act of the offender, then an additional tort remedy is available against the offender. Plaintiff contends that Mr. York acted with sufficient disregard of industry safety standards to constitute “an intentional act” under the statute. In particular, plaintiff alleges defendant York’s:

“a) Failure to dig the aforementioned trench in the manner prescribed by industry regulations;
b) Failure to provide appropriate safety equipment against the advent of a collapse such as that which occurred;
c) Failure, generally, to exercise the degree of care commensurate with the factual situation herein described.”

INTENTIONAL ACTS

Plaintiff relies in part on the decision by the Fourth Circuit Court of Appeal in the case of Bazley v. Tortorich, 380 So.2d 727 (La.App. 4th Cir. 1980). In Bazley, the claimant was injured as a result of certain acts of a fellow employee, which, under ordinary tort law, would amount, at most, to gross negligence. The court found, however, that the acts of the co-employee were sufficient to bring him within the exception of La. R.S. 28:1032 and therefore to subject him to tort liability. The Court reasoned that an employer has no immunity from a tort suit if he entertained a desire to bring about the result which followed and he believed that the result was substantially certain to follow. However, the Court decided that a different standard should be applied when the offending party is one of the persons named in the statute other than the employer. It found that these non-employers’ duty to employees is the same duty to exercise due care not to injure him as the duty owed to complete strangers. In effect, the Bazley Court interpreted the statute to exclude persons whom the legislature specifically included. By enunciating a duty of due care, that Court read “intentional” to mean “negligent” when applied to an executive officer, principal, director, stockholder, partner or co-employee, but to mean “intentional” when applied to an employer. The legislature included all of the above named parties under the same provision and there is no language in the statute which indicates that any such distinction was intended.

The Bazley decision stands alone. Numerous decisions both before and after the Bazley decision have interpreted the statute as it is written without the strained distinction which was made in that case. The First Circuit clearly stated what this court believes to be the correct interpretation of La. R.S. 28:1032 in the case of Guidry v. Aetna Cas. & Sur. Co., 359 So.2d 637 (La.App. 1st Cir. 1978). That Court determined that an “intentional” act under that provision is one in which “the defendant must have entertained a desire to bring about the result which followed and he should have believed that the result was substantially certain to follow.” In Guidry, the claimant sought tort recovery from the employer of his minor son. Certain acts which can be termed as grossly negligent were alleged to have been “intentional” within the meaning of R.S. 23:1032 just as in Bazley. Aetna filed an exception of no cause of action based on the exclusive remedy provisions of that section and the exception was sustained and affirmed on appeal. While Gui-dry and Bazley are not in conflict as Guidry dealt only with an employer, later decisions have applied the Guidry standard to the other parties named in the statute. Johnson v. Narcisse, 373 So.2d 207 (La.App. 4th Cir. 1979) applied the Guidry standard in a suit against an executive officer as well as against an employer. The same is true of a decision in the Fourth Circuit just a few months prior to Bazley in Frazier v. Woodward, 378 So.2d 209 (La.App. 4th Cir. 1979). Tobin v. Jacobson, 369 So.2d 1161 (La.App. 1st Cir. 1979) and Perez v. Continental Casualty Co., 367 So.2d 1284 (La.App. 3rd Cir. 1979) are similar decisions. A very recent decision of the Third Circuit expressly followed Guidry in a suit against an employer and a co-employee, specifically rejecting Bazley. McGuire v. Honeycutt, 387 So.2d 674 (La.App. 3rd Cir. 1980).

Plaintiff, at hearing and in a supplemental memorandum, argues that the Bazley decision is not the entire basis of her case. Rather, she asserts that the Guidry definition of “intentional” results from an incorrect interpretation of prior jurisprudence and doctrine. The Guidry court, as already noted, declared that the defendant must have entertained a desire to bring about the result which followed and he should have believed that the result was substantially certain to follow, citing Monk v. Veillon, 312 So.2d 377 (La.App. 3rd Cir. 1975) and Prosser on Torts (West, 1971) pp. 31-32. Plaintiff argues that the conjunctive “and” was substituted for the disjunctive “or” and that one or the other is sufficient to constitute an “intentional” act. While the decision in Monk was only a brief treatment of Prosser, the result reached in that case was correct. The two-part test mistakenly created in that case was the result of only superficial treatment of the Prosser analysis. Looking beyond the Monk decision and directly to Prosser reveals that the disjunctive “intended result or substantial certainty” test is the second part of a two-part inquiry.

Plaintiff’s argument is without merit. For the reasons more fully explained in the opinion rendered this day in Banks v. Claibon, et al, (La.App.) 405 So.2d 1238 (copy attached), intent in the legal sense may be established by proof that the actor desired the consequences of his act (a subjective inquiry) or that he should have known to a virtual certainty that they would follow his act (an objective inquiry). The primary reason for the latter formulation is to alleviate the difficulty which a plaintiff would encounter in proving the state of mind of the actor. But in either event, as Dean Prosser makes clear in his hornbook, either desire of consequences or knowledge of them to substantial certainty must be established to prove that an act was “intentional” in the legal sense. Nothing in the allegations which plaintiff makes suggests that the defendant York should have known to a virtual certainty what the consequences of his conduct would be. Respondeat Superior

Plaintiff specifically urges that defendant Yor-Wil, Inc., as employer of defendant York, should be vicariously liable for what plaintiff terms the “intentional act” of York which allegedly caused the death of the decedent. To a great extent, this argument is without merit because, as discussed earlier, York has not committed an “intentional act” in the meaning of the statute. But significant policy issues are presented by plaintiff’s argument, which should be discussed.

The decision in Bazley, so heavily relied upon by plaintiff, purported to hold that, while the legislature might grant a broad immunity to employers from negligence actions, it could not do so with reference to co-employees. The Bazley opinion suggests that interpreting Act 147 of 1976 to grant immunity to co-employees for their negligent conduct would cause it to be unconstitutional, since the injured employee received no compensation remedy from those employees for surrendering his tort remedy. Even if this court thought that distinction to be valid (which it does not), the responde-at superior argument made by plaintiff in this case would violate even the Bazley approach to employer liability. Plaintiff seeks to take advantage of the limited immunity (or from another view, broadened liability) created by Bazley and to hold the employer liable through respondeat superior when he would otherwise be immune.

The first problem with this approach is that an employer is not ordinarily liable for the intentional torts of an employee. Plaintiff cites no authority to the contrary, and for the reasons discussed in the Banks opinion (attached), there appears to be no authority for the proposition in this context.

Even assuming that plaintiff were correct in the suggestion that Yor-Wil, Inc. might be liable under respondeat superior for an intentional act of York, a holding that plaintiff could proceed in tort against Yor-Wil would clearly violate the pqlicy behind La. R.S. 23:1032 and its recent amendment.

It must be presumed that the legislature by its 1976 amendment meant to deny the “protection” of the compensation act to both co-employees and the employer under certain circumstances. It provided that there was no immunity for “liability . . . resulting from an intentional act.” That could be interpreted as describing injury inflicted personally by the employer through an intentional act on his part, or as describing liability of the employer (whether a legal or a natural person) for the intentional act of a co-employee of the injured employee.

In the former instance, it should be clear that no social policy would be served by permitting an employer personally to commit intentional torts on an employee and then “hide behind” the compensation act. But in the latter instance, immunity from tort liability would serve the general policy of the act and was no doubt intended. We require the employer to pay compensation to an employee even when the injuries he received were the result of the intentional conduct of a co-employee. As to the injured employee, this is “personal injury by accident” which is compensable. The employer should, in keeping with the compensation principle underlying the act, be immune from a tort suit for the same injury, absent some showing of personal involvement of the employer in the intentional wrongdoing.

The reasons supporting this position are summarized in Malone & Johnson, Workers’ Compensation Law and Practice, 14 Civil Law Treatise, § 365, pp. 165-166:

It should be apparent from this discussion that the reasoning which might support tort liability against the employer for his personal intentional conduct, or even against a co-employee individually for his personal intentional conduct, fails when it comes to the tort liability of an employer for conduct for which is he only vicariously liable. In such a case the intentional conduct, done without the knowledge or consent of the employer, is an “untoward happening or event” as to both him and the injured employee, and it should be regarded as an accident, and hence within the exclusive purview of the statute. • Thus the prior jurisprudence in Louisiana limiting such an employee to a compensation remedy was correct and should be reaffirmed after the amendment.2
As to the tort liability of the employer who personally engages in intentional conduct which harms the employee, it could be held that the purpose of the amendment was not to give such a person a shield from liability, but rather to leave to the employee in such a case whatever ordinary remedy tort law would afford to him. Legislative clarification would be preferable, making it clear that any individual remains personally liable for his intentional act which causes harm to an employee, whether that individual be an employer or any co-employee. But, to the extent that tort law would require an employer to respond for the intentional conduct of his employees toward a third person, the same result should not obtain within the compensation system when that third person is himself an employee. As to such an employee and the employer, whatever injury he suffers is “personal injury by accident”3 as that term has been interpreted by longstanding Louisiana jurisprudence; and the reference in the 1976 amendment to injury “resulting from an intentional act” is not intended to change that interpretation.

Unconstitutionality

Plaintiff also argues that La. R.S. 23:1032 is unconstitutional if it denies her the right to proceed in tort against York personally as a co-employee, and presumably against Yor-Wil, Inc. as his employer. The argument is too narrow, fails to consider the broad purposes of the entire compensation act, and moreover has been rejected upon numerous occasions.

The very foundation of workers’ compensation rests on the compromise between the employee and the business enterprise in which each surrenders certain advantages in order to gain others which are of more importance both to themselves and to society. The employer agrees to pay when it would not otherwise be liable and the employee forfeits his former right to a chance at full damages and receives certainty of payment of a more modest amount. W. Malone and A. Johnson, Louisiana Workers’ Compensation, 2d Ed., pp. 38 et seq. In that same edition, the authors state that:

“Worker’s compensation rests upon the sound principle that those persons who enjoy the product of a business — whether it be in the form of goods or services— should ultimately bear the cost of injuries or deaths that are incident to the manufacture, preparation and distribution of the product.”
******
“Under this approach the element of personal fault either disappears entirely or is subordinated to broader economic considerations.”

Cited in note 3 at page 39 is the opinion of Drew, J., in the case of Kroncke v. Caddo Parish School Board, 183 So. 86, 91 (La.App. 2d Cir. 1938) in which it was stated that;

“ . .. the underlying theory and intention of compensation statutes is to shift the burden of accidental injuries incident to employment from the injured employee onto the public through the employer.” (emphasis added)

The legislature was entitled to construct a scheme to reflect this compromise, and to grant to the employee certain rights he never previously had (a money award without proof of fault on the part of the employer) in exchange for rights that he did have (upon proof of fault, tort damages against the employer or in some instances against a co-employee). It is true that prior to 1976, a tort suit against a co-employee was permitted, though it had never seriously been argued that an employer would have to respond indirectly through vicarious liability for such tort damages when he would not have to respond directly. After 1976, there is no more reason to entertain the argument that denial of a tort suit against a co-employee is unconstitutional, if the ultimate objective of such an argument is, again, indirect tort liability of the employer. The overall legislative scheme is the same, both prior to 1976 and after 1976, with reference to the tort and compensation liability of the employer.

The statute, as amended in 1976, has been consistently upheld against constitutional challenges. Branch v. Aetna Cas. & Sur. Co., 370 So.2d 1270 (La.App. 3d Cir. 1979); Flynn v. Devore, 373 So.2d 580 (La.App. 3d Cir. 1979); Tobin v. Jacobson, 369 So.2d 1161 (La.App. 1st Cir. 1979); Perez v. Continental Casualty Co., 367 So.2d 1284 (La.App. 3d Cir. 1979). The Bazley decision cited by plaintiff considered the statute to be valid only under the bifurcated standard it created. Without the distinction, the court stated that the extension of immunity to any one but the employer would be without a rational relationship to any valid state interest. It was found that there was a sufficient quid pro quo between an employer and the employee but that there was none between the employee and the other parties named in the statute. It was further stated that to extend this immunity to this class of persons other than the employer would create an arbitrary class of third persons who are immune from suit, the creation of which has no rational relationship to a legitimate state interest.

The constitutional standard stated by Bazley, the rational relationship standard, is the proper standard — but it was incorrectly applied. Unlike the situation in which there is a right involved which the U.S. Supreme Court has considered as fundamental, the scrutiny under the “rational relationship” approach is minimal. A constitutional attack because of alleged denial of equal protection can be successfully opposed by demonstrating that the legislative classification reasonably furthers a valid state interest or governmental purpose. Flynn v. Devore, supra; also see City of New Orleans v. Dukes 427 U.S. 297, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976).

All that need exist is a reasonable relationship to a valid state interest. Bazley concedes the grant of immunity as having a rational relationship to a valid state interest as it is afforded an employer. As indicated by the history of the immunity provisions and the jurisprudence cited herein, a clear state interest exists justifying the extension of immunity to the added classes. Because the basic purpose of the act was being undermined by suits against executive officers, the immunity was extended. The purpose was being undermined because, in reality the liability of these executive officers was eventually absorbed by the business enterprise.

The 1959 case of Adams v. Fidelity & Cas. Co., 107 So.2d 496 (La.App. 1st Cir.) rejected the long standing notion that the only duty an executive officer had would be to the corporation which was in turn answerable for the officer’s acts. By so doing, the court opened the way for the subsequent flood of executive officer suits which were filed. Comment on the decision at the time predicted the undermining of the compensation principle:

“If officers in the upper echelons of management find themselves exposed to the often disastrous prospect of tort liability for the almost unlimited number of employee accidents that could be in some way attributed to their neglect, they will be impelled in practice to exact liability insurance from the corporate employer. The result may be a denial to the employer of much of the practical advantage of the exclusive remedy provision." W. Malone, La. Workmens’ Comp. Law & Practice, supp. sec. 366.

In extending the immunity the legislature recognized that the quid pro quo which Bazley spoke of between the employer and employee was unbalanced in favor of the employee and that the benefits which the employer was to get under the system were not, as a practical matter, being received. That the amendment, in equalizing the position between the employee and employer, conferred an additional benefit on the added classes is not a basis for declaring such benefits invalid in light of the important state interest served. The validity of the extension of immunity and the underlying state interests which support it were discussed in Perez v. Continental Casualty Co., 367 So.2d 1284 (La.App. 3d Cir. 1979) writs denied 369 So.2d 157. The Court found the 1976 amendments valid against equal protection and due process challenges:

“. .. the growing number of ‘executive officer’ suits presented practical problems to the employer. By extending the employer’s immunity from tort suit to the officers, directors, stockholders, partners or employees of such employer, the legislature granted immunity not only to an employer, but to those who form the basic indispensible ingredients of the employer’s business. Such extension of immunity tends to maintain the integrity and original purpose of the act. Under these circumstances the legislative classification is found to be within reason and it achieves the objectives of the state. It is not a denial of equal protection of the law.” 367 So.2d at 1288 (emphasis added)

This Court holds La. R.S. 23:1032 to be constitutional.

Conclusion

For the foregoing reasons, the court concludes that the peremptory exception of no cause of action must be sustained in favor of all defendants, and plaintiff’s petition dismissed at her cost, because: (a) no defendant can be deemed to have committed an “intentional act” within the meaning of La. R.S. 23:1032, thereby losing the immunity from tort liability; (b) the immunity from tort liability granted an employer by La. R.S. 23:1032 is not lost when the responsibility of the employer is sought to be enforced by respondeat superior, absent any showing of personal involvement in an intentional tort by the employer; and (c) La. R.S. 23:1032 is not unconstitutional.

Baton Rouge, Louisiana this 17th day of November, 1980.

/s/ Charles William Roberts JUDGE, 19TH JUDICIAL DISTRICT COURT


author: WATKINS, Judge.

text:
    STATE of Louisiana In the Interest of Darryl MORRISON.
    No. 14934.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 4, 1981.
    Rehearing Denied Dec. 2, 1981.

      Robert Eames, Baton Rouge, for juvenile.
    Leonora C. Estes, Asst. Dist. Atty., Baton Rouge, for State.
    Before COVINGTON, COLE and WATKINS, JJ.
   WATKINS, Judge.

Darryl Morrison, a juvenile, was charged in the present proceeding with second degree murder. He was detained September 16,1981. A hearing to determine continued custody was scheduled for September 18, 1981, but was continued on motion of the juvenile’s attorney until September 25, 1981.

At the hearing, the juvenile, through counsel, sought to call witnesses to testify in his own behalf. The court held that only the State could call witnesses at a hearing to determine continued custody. The juvenile applied for writs, which we granted, and now make peremptory.

The nature of the hearing to determine continued custody is set forth in art. 39, Code of Juvenile Procedure, which is the sole article in the Code of Juvenile Procedure regulating evidence and procedure at the hearing:

“At the hearing, the state shall prove the existence of a ground for continued custody pursuant to Article 40.
“Hearsay evidence shall be admissible at the hearing to determine continued custody.”

Thus, there is nothing in the article that directly indicates whether or not a juvenile may call witnesses in his own behalf at the hearing to determine continued custody. The article simply places the burden of proof on the state to prove the existence of a ground for continued custody. Placing the burden of proof on the state would seem to indicate, if anything, that the juvenile may introduce contradictory evidence.

That view is buttressed by an examination of the history of the hearing to determine continued custody. The Code of Juvenile Procedure took effect January 1, 1979. In a case decided before the Code of Juvenile Procedure took effect, or indeed, was enacted , State in the Interest of Joshua, 327 So.2d 429, decided in 1976, the Louisiana Court of Appeal, Fourth Circuit, held that a juvenile is constitutionally entitled to a preliminary hearing to “challenge” (emphasis ours) a pre-trial incarceration. The Court cited LSA-C.Cr.P. art. 292. As the Code of Criminal Procedure in a related article, art. 294, permits a defendant in a criminal proceeding for an adult to produce witnesses and to testify in his own behalf, in addition to the state’s production of witnesses, and as the Court of Appeal speaks of a juvenile’s constitutional right to “challenge” his continued custody or incarceration, it is apparent that the Court of Appeal contemplated that the juvenile as well as the prosecution could produce witnesses to testify at the preliminary examination, which is but another name for the hearing to determine continued custody as the term is used in the later enacted Code of Juvenile Procedure. The Louisiana Supreme Court denied two applications for writs in Joshua, at 329 So.2d 450 and at 329 So.2d 456 (La.1976), in the latter stating the case was moot, but in the former stating, “The ruling of the Court of Appeal, attached hereto, is correct.”

Although, in view of the United States Supreme Court’s holding in Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), considered in the light of In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), it might have been constitutionally permissible under the United States Constitution to deny a juvenile the right to call witnesses at a hearing to determine continued custody (preliminary examination), the Louisiana Legislature in enacting the Code of Juvenile Procedure did not deny to the juvenile the right to call witnesses in his own behalf, which right was clearly recognized to exist in Joshua. Thus, as a matter of statutory interpretation, we hold that the right of the juvenile to call witnesses in his own behalf at the hearing to determine continued custody, not having been denied by the Code of Juvenile Procedure, was in no way altered, abridged, or narrowed by the enactment of that Code, having been fully recognized by Joshua.

Thus, we hold, in the hearing before us, the juvenile is entitled to produce witnesses, subject to cross-examination by the state, or to testify in his own behalf, likewise, subject to cross-examination by the state, as well as the right to cross-examine the witnesses produced by the state, just as if he were an adult.

It is ordered that the hearing to determine continued custody be held in accordance with the views expressed herein, and the writ is made peremptory.

WRIT MADE PEREMPTORY.

ON APPLICATION FOR REHEARING (PEREMPTORY WRIT)

We did not hold in our original opinion that the right of a juvenile to call witnesses at a hearing to determine continued custody (preliminary examination) is constitutionally mandated. If the legislature had specifically denied a juvenile the right to call witnesses at such a preliminary hearing, that denial of the right would not be viola-tive of the United States or Louisiana Constitutions.

However, as a matter of statutory interpretation, we held, in our original opinion, that the legislature has granted the juvenile the right to call witnesses, to cross-examine witnesses, and to be represented by counsel, in enacting the Code of Juvenile Procedure, by not altering those rights as announced in State in the Interest of Joshua, 327 So.2d 429 (La.App. 4th Cir. 1976).

Nothing in the application for rehearing alters, or indeed, attempts to rebut this view.

APPLICATION FOR REHEARING DENIED.

      . The Code of Juvenile Procedure was enacted by Louisiana Act No. 172 of 1978.


author: LABORDE, Judge.

text:
    Francis DETRAZ, et al., Plaintiffs-Appellees, Defendants in Reconvention, Third Party Defendants, v. Anthony J. FONTANA, Jr. et al., Defendants-Appellants, Plaintiffs in Reconvention, Third Party Plaintiffs.
    No. 8331.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 1981.
    Writ Granted Jan. 8,1982.

      Theall & Fontana, Anthony J. Fontana, Jr., Abbeville, for defendants-appellants.
    Broussard, Broussard & Moresi, Paul G. Moresi, Jr., Abbeville, J. Minos Simon, of Simon & Dauterive, Lafayette, for plaintiffs-appellees.
    Before CULPEPPER, CUTRER and LA-BORDE, JJ.
   LABORDE, Judge.

This appeal involves the interpretation of LSA-R.S. 42:261 E, a statute granting certain defendants, under specific conditions, the right to require plaintiff to furnish a bond for attorney’s fees before proceeding with trial.

On May 28, 1980, Anthony J. Fontana, Jr., and Charles Dore (appellants) filed a third party demand against the Vermilion Parish Police Jury. On June 3, 1980, by supplemental and amending third party demand, Jewitt Hulin, secretary-treasurer of the Vermilion Parish Police Jury, was joined as third party defendant. Hulin and the Police Jury (appellees) filed a motion in trial court to require the appellants to furnish bond pursuant to LSA-R.S., 42:261 E. The motion was opposed. On November 20, 1980, the trial court rendered judgment in favor of the appellees requiring appellants to furnish a bond in the amount of $15,000 to cover the costs of appellees’ attorney’s fees. The trial court ordered the bond posted no later than December 20, 1980, in default of which appellants would suffer dismissal of their third party demand. On December 23, 1980, no bond having been filed, the trial court dismissed with prejudice appellants’ third party demand.

We hold LSA-R.S. 42:261 E is constitutional and interpret the statute as limited in use and application by public officials only. Since the Police Jury is not a public official, the trial court erred by allowing it to require appellants to post a bond. As regards secretary-treasurer, Jew-itt Hulin, the trial court correctly held that he is a public official under LSA-R.S. 42:261 E, and is entitled to require appellants to post bond for attorney’s fees before proceeding to trial. Accordingly, the trial court had authority to dismiss the claim against Jewitt Hulin upon appellants’ failure to post bond. However, the trial court erred by dismissing those claims with prejudice as dismissal is limited to dismissal without prejudice only. Our reasons follow.

Appellants assign two (2) trial court errors.

“1. Did the trial court commit error in dismissing appellants’ third party demand for failure to post a $15,000 bond under the provisions of LSA-R.S. 42:261 which is unconstitutional and unenforceable?
2. Did the trial court error [err] in dismissing appellants' third party demand against the Vermilion Parish Police Jury for failing to post a $15,000 bond under the provisions of LSA-R.S. 42:261 which is not applicable to political entities?”

LSA-R.S. 42:261 was declared constitutional in Houston v. Brown, 292 So.2d 911 (La.App. 2nd Cir. 1974). In the Houston case the court held:

“Louisiana Revised Statutes 42:261(D) does not deny access to the courts to any persons. The bond requirement is a legitimate exercise of legislative control over litigation. As stated in Boddie, supra [401 U.S. 371, 91 S.Ct. 780, 28 L.Ed. 113] and as held in United States v. Kras, 409 U.S. 434, 93 S.Ct. 631, 34 L.Ed.2d 626 (1973), the constitution does not demand access to the courts for all individuals in all circumstances, nor does the constitution require that all litigation be classified the same with equal cash and bond requirements. The state has a rational basis for requiring a reasonable bond as a precondition to the prosecution of a tort action allegedly arising out of the performance of duties considered a vital part of the sovereignty of the state.”

Agreeing with the court in Houston that the statute under consideration is constitutional, we turn to consideration of the beneficiaries under the statute. In Brown v. Aetna Life & Cas. Ins. Co., 394 So.2d 290 (La.App. 3rd Cir. 1980), this court interpreted LSA-R.S. 42:261 E as favoring public officials only, adding that the statute’s reference to state political subdivisions was merely to point out that a public official thereof is included. Following our reasons in the Brown case, supra, we hold that the Vermilion Parish Police Jury—not being a public official—therefore has no right to require appellants to post an attorney’s fee bond pursuant to LSA-R.S. 42:261 E. Hence, the trial court’s dismissal of appellants’ third party demand because of its failure to post bond constitutes an error which, on appeal, appellants are entitled to have reversed.

Next, we consider whether Jewitt Hulin, the secretary-treasurer of the Police Jury, is entitled to use and application of LSA-R.S. 42:261 E. The trial court held that the secretary-treasurer of the Police Jury is a public official and thus is entitled to exercise the rights granted by statute. In Cherry v. Hall, 270 So.2d 626 (La.App. 2nd Cir. 1972), our brothers of the Second Circuit specifically held that the Parish Treasurer was a public official. The court at page 628 reasoned:

“As Parish Treasurer, there can be no question of the fact that plaintiff is a public official. His office was created by legislative enactment. He was elected by the Police Jury of his parish for a term of two years, and is required to maintain an office at the parish seat. LSA-R.S. 33:1651. He was, moreover, required to take an oath of office — LSA-Const., Art. 19 § 1. Specifically, as defined in LSA-R.S. 42:1:
“As used in this title, the term ‘public office’ means any state, district, parish or municipal office, elective or appointive, or any position as member on a board or commission, elective or appointive, when the office or position is established by the constitution or laws of this state.
“ ‘Public officer’ is any person holding a public office in this state.”

We likewise hold that Jewitt Hulin, as secretary-treasurer of Vermilion Parish Police Jury, is a public official within the intendment of LSA-R.S. 42:261 E and is entitled to require an attorney’s fee bond of appellants prior to trial.

A final issue not raised by the litigants on appeal involves the manner in which appellants’ demands may be dismissed upon their failure to post bond for attorney’s fees. The trial court dismissed appellants’ third party demand with prejudice. We considered this identical issue in the Brown case, supra, and concluded that the trial court may properly dismiss a plaintiff’s suit, but it may do so without prejudice only. In the Brown case at page 293 we held that:

“The statute specifically provides that failure to post security within the time fixed by the court shall subject the case to be dismissed without prejudice. We interpret LSA-R.S. 42:261E to provide that the provisions of LSA-R.S. 13:4522 are applicable and available for use in connection with the bond for attorney’s fees, and that a court may properly dismiss plaintiff’s suit for failure to post bond within the time fixed, but it may do so without prejudice only.”

Accordingly, it is ordered that the trial court’s judgment dismissing appellants’ suit against Jewitt Hulin is amended to a dismissal without prejudice, and as amended is affirmed.

It is further ordered that the trial court’s dismissal of appellants’ suit against the Vermilion Parish Police Jury is reversed, set aside and vacated, and this case is remanded to the district court for further proceedings in accordance with the law and views expressed herein.

All costs of this appeal are assessed one-half to appellants and one-half to appellee, Vermilion Parish Police Jury, in the amount of $191.00, as provided by law. The costs on remand are to await the outcome of the litigation.

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

      . LSA-R.S. 42:261 E provides:
      “E. Any party who files suit against any duly elected or appointed public official of this state of or any of its agencies or political subdivisions for any matter arising out of the performance of the duties of his office other than matters pertaining to the collection and payment of taxes and those cases where the plaintiff is seeking to compel the defendant to comply with and apply the laws of this state relative to the registration of voters, and who is unsuccessful in his demands, shall be liable to said public official for all attorneys fees incurred by said public official in the defense of said lawsuit or lawsuits, which attorneys fees shall be fixed by the court.
      The defendant public official shall have the right, by rule, to require the plaintiff to furnish bond as in the case of bond for costs, to cover such attorneys fees before proceeding with the trial of said cause.”

      . Subsequent to the Houston case, LSA-R.S. 42:261 was amended and the pre-amendment provision (D) became the present provision (E) of the statute.


author: DOUCET, Judge. GUIDRY, Judge,

text:
    SELBER BROS., INC., Plaintiff-Appellee, v. Jimmie Faye BRYANT, Defendant-Appellant.
    No. 8354.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 1981.

      Sam Nelken, Natchitoches, for defendant-appellant.
    Cook, Yancey, King & Galloway, Brian A. Homza, Shreveport, for plaintiff-appellee.
    Before GUIDRY, FORET and DOUCET, JJ.
   DOUCET, Judge.

The plaintiff-appellee, Selber Bros., Inc., filed suit on an open account, alleging in its pleadings that petitioner sold merchandise to defendant, and that the account was past due. Defendant answered with a general denial, pleading no affirmative defenses nor making any third party demands. The trial court rendered judgment in favor of the plaintiff for $1,209.88 less a credit for payment of $25.00 together with legal interest from the date of judicial demand; from which defendant appeals. We affirm.

At trial, the plaintiff’s collection manager testified and identified an itemized statement of the account showing an amount due of $1,209.88, the charge slips bearing the signature “Mrs. J. F. Bryant” and the bills sent defendant requesting payment of the account, thereby establishing a prima facie case pursuant to La.Civ.Code art. 2277.

The defendant attempted to disavow her signature on the charge sale slips alleging her daughter-in-law purchased the merchandise. However, the defendant’s answer failed to plead such a disavowal as an affirmative defense and the plaintiff timely objected to introduction of such evidence. The disavowal of signature is an affirmative defense which must be specially plead. LSA-C.C.P. art. 1005; LSA-C.C. art. 2244; Mirandona Bros. v. Danos, 56 So.2d 159 (La.App.Orl.1952); Olympic Homes, Inc. v. Ory, 207 So.2d 258 (La.App.1st Cir.1968), writ refused 209 So.2d 41; Colonial Bank v. Johnnie B. Peters, 353 So.2d 400 (La.App.4th Cir.1977); Cox v. Cox, 193 La. 268, 190 So. 401 (1939).

Upon appeal, the defendant filed peremptory exceptions of no cause of action and no right of action. An appeals court may consider the peremptory exception filed for the first time in that court, if pleaded prior to submission of the case for a decision, and if proof of the ground of the exception appears of record. LSA-C.C.P. art. 2163.

The peremptory exception of no cause of action questions whether the law affords a remedy to anyone for the particular grievance alleged. Then, assuming the petition pleads a valid cause of action, the peremptory exception of no right of action questions whether the particular plaintiff is a party to whom the law affords a remedy. LSA-C.C.P. art. 927; Babineaux v. Pernie-Bailey Drilling Co., 261 La. 1080, 262 So.2d 328 (1972).

The creditor’s petition seeks to recover from the defendant amounts past due on an open account, a right clearly afforded by law to the plaintiff. Thus, the plaintiff is entitled to enforce the remedy granted by law.

The defendant argues that since she did not make the purchases that the plaintiff has no right of action. The allegation that her daughter-in-law made the purchases signing her signature to the charge sale slips is an affirmative defense. The defendant may not use the peremptory exception of no right of action to urge that plaintiff has no right of action because there is a valid defense to the claim. Bielkiewicz v. Rudisill, 201 So.2d 136 (La.App.3rd Cir.1967); Gustin v. Shows, 377 So.2d 1325 (La.App.1st Cir.1979). Additionally, there was sufficient evidence indicating the use by the daughter-in-law was under the implied authority of the cardholder. Thus such did not constitute unauthorized use which would absolve defendant of liability.

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

AFFIRMED.

GUIDRY, J., concurs and assigns written reasons.

GUIDRY, Judge,

concurring.

I concur in the result but would not reach the issue as to whether or not the record contains sufficient evidence as to the daughter-in-law’s use of the credit card being with the implied authority of the cardholder.

For the reasons stated in the majority opinion evidence tending to prove invalidity of defendant’s signature on the charge slips was inadmissible. Defendant did not seek leave to amend her answer to affirmatively plead disavowal of signature (LSA-C.C.P. Art. 1154). The evidence as to signature disavowal was inadmissible and should not have been considered. Under such circumstances plaintiff is clearly entitled to judgment.

For these reasons I respectfully concur.

      . LSA C.C. art. 2277 states:
      “All agreements relative to movable property, and all contracts for the payment of money, where the value does not exceed five hundred dollars, which are not reduced to writing, may be proved by any other competent evidence; such contracts or agreements, above five hundred dollars in value, must be proved at least by one credible witness, and other corroborating circumstances.”

      . LSA C.C. art. 2244 states:
      “The person against whom an act under private signature is produced, is obliged formally to avow or disavow his signature.
      The heirs or assigns may simply declare that they know not the handwriting or the signature of the person they represent.”


author: GUIDRY, Judge.

text:
    Jimmie L. ORTEGO, Plaintiff-Appellee, v. Louis LEBERT, Defendant-Appellant.
    No. 8365.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 1981.

      Peter C. Piccione, Jr., & McBride & For-et, Robert McBride, Lafayette, for defendant-appellant.
    Simon & Woodruff, Paula Kobetz Woo-druff, Lafayette, for plaintiff-appellee.
    Before GUIDRY, FORET and DOUCET, JJ.
   GUIDRY, Judge.

Plaintiff-appellee, Jimmie L. Ortego, instituted the instant action against defendant-appellant, Louis Lebert, seeking to rescind an act of sale entered into by the aforesaid parties.

Plaintiff alleges that he purchased Lots 19 and 20 of Block 11 of the West End Heights Subdivision in Lafayette, Louisiana, for $17,000.00 under the representation of the defendant-vendor that Lot 20 was zoned for commercial use. Following the purchase of the aforesaid property, plaintiff was informed that both of the lots were zoned for residential use only. The trial court concluded that the plaintiff purchased Lot 20 specifically for commercial use and that the defendant was aware that such use was the principal cause of the contract of sale. After determining that the defendant misrepresented the zoning of such lot at the time of the sale, the trial judge ordered the sale rescinded and the return of the purchase price to plaintiff. Defendant appeals from that judgment.

Jimmie L. Ortego and his wife, Ruth Or-tego, operate a forklift business at 1128 West Simcoe in Lafayette, Louisiana. Lot 20 is adjacent to the property upon which the Ortego business is presently located. The neighborhood where the property is situated is a mixture of residential and commercial buildings.

Needing more space for their business, the Ortegos initially approached defendant concerning the purchase of the aforesaid lots in 1977. At that time, Lebert refused to sell the property stating that his son might use the property for an auto repair shop. In 1979, plaintiffs again discussed with Lebert the purchase of the two lots stating that they needed additional space for their business. Subsequently, on March 12, 1979, Lebert sold to the Ortegos the property for a purchase price of $17,000.00 Shortly after the sale, plaintiffs began to park forklifts on Lot 20. Thereafter, plaintiffs received official notice from the Lafayette zoning inspector that the parking of the forklifts on Lot 20 constituted a violation of the City of Lafayette Zoning Ordinance in that Lot 20 was zoned for residential use only. Following such notice, plaintiffs sought to obtain a change in the zoning of the property, however, they were unsuccessful.

Plaintiffs, in seeking rescission of the sale of the aforesaid lots, testified that the defendant informed them prior to the sale that Lot 20 was zoned for commercial use whereas Lot 19 was zoned for residential purposes. Defendant denies that he made such representations to plaintiffs and alleges that the Ortegos were well aware of the residential zoning of the lots at issue but told him that they could have such zoning changed without much difficulty.

Defendant contends on appeal that the trial court erred in admitting parol evidence of the alleged representations by the vendor to the vendees prior to the sale. Additionally, defendant contends that there exists no error of fact in regard to the contract of sale such as to vitiate plaintiffs’ consent to the agreement.

It is well settled that in an action for rescission of a sale, parol evidence concerning representations which the seller made to the buyer prior to the sale are admissible for the purpose of establishing that the sale was subject to annulment because of lack of consent due to misrepresentation and error. See Nugent v. Stanley, 336 So.2d 1058 (La.App. 3rd Cir. 1976). Thus, we conclude that parol evidence was properly admitted at trial of the instant matter.

In addition, defendant Lebert contends that there existed no error of fact as to the principal cause of the contract at the time of the sale. In Savoie v. Bills, 317 So.2d 249 (La.App. 3rd Cir. 1975), our court stated:

“LSA-C.C. Article 1819 provides that there is no contract where consent there-r to has been produced by error. Article 1820 provides that error is of two kinds, error of fact and error of law. Article 1821 states: “That is called error of fact, which proceeds either from ignorance of that which really exists, or from a mistaken belief in the existence of that which has none.” Article 1823 provides in part that error of fact invalidates a contract where the error “was a principal cause for making the contract.” Article 1826 states that error (of fact) as to the principal cause of the agreement does not invalidate a contract unless the other party knew or should have known it was the principal cause.
Jurisprudence under these code articles has established the rule that a contract may be invalidated for unilateral error as to a fact which was a principal cause for making the contract, where the other party knew or should have known it was the principal cause, Sylvester v. Town of Ville Platte, 218 La. 419, 49 So.2d 746 (1950); North Development Company, Inc. v. McClure, 276 So.2d 395 (2d Cir. La.App., 1973); Jefferson Truck Equipment Company, Inc. v. Guarisco Motor Company, Inc., 250 So.2d 211 (1st Cir. 1971 [La.App.]) and the authorities cited therein.”

The Ortegos testified that prior to the sale they informed the defendant that the purpose of acquiring the lots at issue was for the expansion of their business enterprise. In light of the jurisprudence, it is clear that if the testimony of the Ortegos regarding the circumstances surrounding the sale of the lots is accepted as true, then it is evident that they acted under an error of fact regarding the principal cause of the contract sufficient to invalidate the consent necessary for the contract of sale.

The trial judge in his written reasons for judgment stated:

“The testimony of the plaintiff in this matter proved to be quite credible and it is accepted that plaintiff was led to believe by the defendant that the property was zoned commercially at the time of the sale. The Court finds the zoning of the property to be the principal cause of the contract and that the plaintiff’s mistaken belief that■ it was zoned commercially constitutes an error of fact, thus vitiating the consent necessary for the validity of the contract.”

As has been stated ad infinitum by the courts, where there is conflicting testimony, the reasonable evaluation of credibility made by the trial court should not be disturbed upon appellate review unless manifestly erroneous. See Canter v. Koehring Company, 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). A review of the instant record does not reveal any clear error in the factual conclusions of the trial judge.

Defendant alleges in brief that the plaintiff had a duty to ascertain the zoning of the property prior to purchasing the lots in dispute. We observe that the courts have in some instances required of the prospective purchaser the so-called duty of “ordinary inspection”. That is, the buyer may not rescind a sale on the basis of the “negligent” misrepresentations of the seller, where such buyer could have ascertained the truth of the matter with ordinary attention. See Nugent v. Stanley, supra.

In the instant case, the trial court determined that Lebert had full knowledge of the plaintiffs’ intended use of the property. Additionally, we note that the defendant also knew of the zoning of the disputed lots, yet he informed the plaintiffs that Lot 20 was zoned commercially. Although, the trial court did not specifically so find, we conclude that the trial court did not consider Lebert’s misrepresentations to be “negligent” but rather intentional. Further, in C. H. Boehmer Sales Agency v. Russo, 99 So.2d 475 (Ct. of App. Orleans, 1958), the court indicates that where there is a mixture of commercial and residential buildings, and the seller knows of the intended use of the property by the buyer, and that due to zoning laws, such use is not permitted, then there is no duty on the part of the buyer to investigate the status of the property. Rather, the seller has a duty to make known the exact status of such property.

In the instant case, the record clearly reflects that the property surrounding the lots in dispute was a mixture of commercial and residential buildings. Thus, it was reasonable for the plaintiffs to accept thé representations of the defendant regarding the alleged commercial zoning of Lot 20. In light of the jurisprudence, we conclude that the plaintiffs did not have a duty to ascertain the exact status of the property, but rather, it was the duty of the defendant to truthfully reveal the nature of the zoning regulations applicable to the subject lots. See also, Louviere v. Meteye, 260 So.2d 377 (La.App. 4th Cir. 1972).

For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed to the defendant. Louis Lebert.

AFFIRMED.

      . The property is described in the act of sale as:
      “Those two (2) certain parcels of ground, together with all buildings and improvements situated thereon, located in the City and Parish of Lafayette, Louisiana. Said parcel of ground being known and designated as LOTS 19 and 20 of BLOCK 11 of WEST END HEIGHTS ADDITION to the City of Lafayette, Louisiana. Said lots are contiguous and together are bounded Northwest by Lot 18, Northeast by Lot 21, Southwest by Courtland Street and Southeast by Agnes Street. Being the same property acquired by Louis Lebert by Act No. 670878 of the records of the Clerk of Court’s office for the Parish of Lafayette, Louisiana.”


author: DOUCET, Judge.

text:
    Ellis JOSEPH, Plaintiff-Appellant, v. FIREMAN’S FUND INSURANCE COMPANY and Charles Molbert, Defendants-Appellees.
    No. 8370.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 1981.
    Francis E. Mire, Lake Charles, for plaintiff-appellant.
    Raggio, Cappel, Chozen & Berniard, Stephen A. Berniard, Jr., Lake Charles, for defendant-appellee.
    Before GUIDRY, FORET and DOUCET, JJ.
   DOUCET, Judge.

This is a suit by Ellis Joseph against Charles Molbert and his insurer, Fireman’s Fund Insurance Company, seeking damages for injuries sustained in an automobile-bicycle collision. Joseph has perfected this appeal from a decision of the Lake Charles City Court dismissing his demands. We affirm.

The sole issue on appeal is whether or not the trial court erred in holding that the plaintiff had not proved by a preponderance of the evidence any negligence on the part of the defendant.

On June 14, 1980, at approximately 1:35 A.M., Charles Molbert was driving his 1977 Cadillac westerly on Legion Street, a four-lane divided thoroughfare in Lake Charles, Louisiana. Near the intersection of Legion Street and McNabbe Street, Molbert noticed two bicycles also traveling westerly on Legion Street. The bicycles were being ridden by the plaintiff, Joseph, and his friend Joseph Jackson. As Molbert attempted to pass the cyclists, Molbert’s vehicle collided with Joseph’s bicycle causing Joseph personal injuries and destroying the bicycle. Molbert testified that as he was trying to pass Joseph on the right, Joseph turned right, directly into Molbert’s path. Jackson testified that Joseph was proceeding directly ahead when Molbert collided with Joseph from the rear. Joseph could not recall what happened. There were no other eyewitnesses. The two police officers who investigated the accident noted that there were no skid marks and that the plaintiff had alcohol on his breath. The plaintiff was taken to St. Patrick’s Hospital where he was examined and released.

The plaintiff argues that the trial court held in favor of the defendant solely because three witnesses testified for the defendant and only one witness testified for the plaintiff. We disagree. Although the trial court noted that the defendant’s witnesses outnumbered the plaintiff’s witnesses, the court stated the plaintiff’s only witness had his head turned prior to the collision and therefore did not know what the plaintiff did immediately prior to the collision. The court also stated, “I feel that the Plaintiff has failed to prove by a preponderance of the evidence, the negligence of the defendant”.

As in any case, the testimony herein is in conflict. The trial court is in the best position to evaluate the testimony of the witnesses before it. Canter v. Koehring Company, 283 So.2d 716 (La.1973). We will not disturb the factual findings of the trial court where there is a conflict in the testimony unless a review of the entire record reveals that the decision of the trial court is manifestly erroneous or clearly wrong. Canter v. Koehring Company, 283 So.2d 716 (La.1973) supra; Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Boustany v. Fluid Dynamics, Inc., 392 So.2d 750 (La.App.3rd Cir. 1980). Our review of the entire record reveals that the trial court is not clearly wrong.

For the above and foregoing reasons, the judgment of the trial court dismissing the plaintiff’s suit is affirmed. All costs are assessed to the plaintiff-appellant, Ellis Joseph.

AFFIRMED.


text:
    JORDAN STATIONERS & PRINTERS, INC., Plaintiff-Appellant, v. Francis J. PHARIS, II, Defendant-Appellee.
    No. 8413.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 1981.

      Gist, Methvin, Hughes & Munsterman, John W. Munsterman, Alexandria, for plaintiff-appellant.
    Pharis & Pharis, F. Jean Pharis and James A. Pharis, Alexandria, for defendant-appellee.
    Before GUIDRY, FORET and DOUCET, JJ.
   GUIDRY, Judge.

This is a suit in contract. The factual circumstances giving rise to this litigation are, for the most part, without dispute.

On June 9, 1978, defendant was employed by plaintiff as a salesman under a written contract. According to the contract, defendant was to be compensated for his work on the basis of commissions on sales completed by him. By the terms of the contract defendant was allowed a weekly advance remuneration, referred to as a “draw”, which was deductible monthly from earned commissions. Defendant terminated his employment with plaintiff effective August 15, 1979. According to a summary prepared by plaintiff’s vice-president, the total of plaintiff’s “draws” during the period of his employment exceeded the amount of his earned commissions by the sum of $2666.95. Plaintiff sued to recover this sum. The trial court rendered judgment dismissing plaintiff’s suit. Plaintiff appealed.

The dispute between the parties centers around the following provision of the employment contract:

“It is further understood that Jordan’s will allow an advance remuneration, hereinafter called a ‘draw’, to be made weekly which will be deducted monthly from commission earned for the month. This draw is advanced monies against commission to be earned. It is understood Salesperson will receive no other remuneration other than commissions earned from sales completed by Salesperson. ‘Completed Sales’ definition is sales received, delivered, installed and paid for.”

At the outset we observe that the jurisprudence of this State is clear to the effect that an excess of advances to an employee, over and above commissions deducted therefrom, cannot be recovered by the employer upon termination of the employee’s employment absent an express or implied agreement or promise to repay the excess. Bardwell v. Szatmary, 99 So.2d 420 (La.App. 2nd Cir. 1957); Landry v. Huber, 138 So.2d 449 (La.App. 3rd Cir. 1962); Rex-Metallic Casket Company v. Gregory, 115 So.2d 639 (La.App. 2nd Cir. 1959); Savoy v. Soileau, 177 So.2d 644 (La.App. 3rd Cir. 1965); Rai-Lynne Realty, Inc. v. Kern, 336 So.2d 974 (La.App. 4th Cir. 1976).

Appellant urges that the trial court erred in failing to interpret the contract as requiring defendant to repay the unearned advances. In this connection appellant argues that the parties to the contract, at the time of its confection, clearly intended and understood that Pharis would owe Jordan the excess of draws over commissions. In the alternative, appellant urges that following termination of defendant’s employment, he verbally acknowledged that he owed plaintiff the unearned advances. We find merit in neither of appellant’s contentions.

Agreements legally entered into have the effect of law on those who have formed them and the courts are bound to give legal effect to such contracts according to the true intent of the parties. LSA-C.C. Articles 1901,1945, and 1963. The intent of the parties is to be determined by the words of the contract and when these are clear and explicit, the terms of the contract must prevail. Sleet v. Gray, 351 So.2d 286 (La.App. 3rd Cir. 1977).

The contract entered into by the parties, and particularly the portion above quoted, does not expressly require repayment by Pharis of the excess of draws over commissions. Jordan’s managerial employees testified, over defendant’s objection, that at the time the employment contract was entered into it was understood and contemplated that Pharis would be responsible for repayment of the excess of draws over commissions. Pharis testified that the matter of monies drawn in excess of commissions earned was never discussed by the parties. The trial judge resolved this issue favorable to defendant concluding that the contract in question neither expressly nor impliedly required repayment by Pharis of the excess of draws over commissions. Finding no clear error in this determination it must be affirmed.

In the alternative, appellant contends that following termination of defendant’s employment he acknowledged owing plaintiff the monies drawn in excess of commissions earned in a meeting held June 22, 1979 and therefore it is entitled to judgment.

Defendant first informed his immediate superior of his intention to terminate his employment and return to school in May of 1979. Plaintiff sought to dissuade defendant from leaving its employ. When its efforts proved unsuccessful, plaintiff requested that defendant sign an agreement expressly binding him to repay the monies drawn in excess of commissions. Defendant refused to sign this agreement. Thereafter, he was asked to sign a promissory note for the amount allegedly due but refused. Presumably because of defendant’s adamant refusal to acknowledge any indebtedness to plaintiff, on June 22, 1979, without any prior notice, he was summoned to a meeting at plaintiff’s place of business. There were present at this meeting, defendant, the three principal owners of Jordan’s Stationers and the latter’s Vice-President. Defendant described the meeting as inquisitorial in nature. Defendant admits that at this meeting he verbally acknowledged that he owed plaintiff the monies drawn in excess of commissions earned but testified that he did so without any real intention of acknowledging an indebtedness to plaintiff but rather in order to placate those present at the meeting. In this regard defendant testified as follows:

“A. Yes, Sir. Yes, Sir, I’ll tell you what I meant. I was acknowledging the fact that Jordans was telling me that I owed them this money. I was looking for a way to get out of that meeting. I was surrounded and I wanted to get out.
Q. Pardon me, I didn’t hear you.
A. I was surrounded and I wanted to get out. I wanted to get out of the meeting. I had been asked that question repeatedly and I think if you’ll notice also on the transcript several people were speaking before I was even given opportunities to answer on several occasions. That document may or may not reflect that, but that was the way it was.
Q. You weren’t acknowledging that you owed them any sum of money at all?
A. No, Sir."

We like the trial judge do not view any statements by defendant at this meeting, allegedly acknowledging any indebtedness to plaintiff, as constituting an express promise to repay the unearned advances. Previous to this meeting defendant had consistently denied owing any sum of money to Jordans and adamantly refused to execute the written documents presented to him by plaintiff. Under such circumstances, we conclude that defendant is not personally liable for any repayment of excess advances over commissions.

For the reasons assigned the judgment appealed from is affirmed at appellant’s cost.

AFFIRMED.

      . The Vice-President took notes at this meeting and prepared a transcript thereof which was filed in evidence as defendant’s exhibit. 2.


text:
    Robert F. DOYLE, Plaintiff-Appellant, v. STATE FARM INSURANCE COMPANY, Toleda L. Weldon, and American Motors, Defendants-Appellees.
    No. 8414.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 1981.
    Writ Granted Jan. 8, 1982.
    McClain, Morgan & Savoy, David J. Williams, Lake Charles, for plaintiff-appellant.
    Stockwell and Associates, Robert S. Dampf, Lake Charles, for defendant-appel-lee.
    Before GUIDRY, FORET and DOUCET, JJ.
   DOUCET, Judge.

Plaintiff appeals from the trial court’s grant of a motion for summary judgment dismissing his claim against his underin-sured motorist insurer carrier. We affirm.

The facts were stipulated to by the parties. The plaintiff suffered injuries when his automobile, which was manufactured by American Motors Corporation (AMC), was struck from the rear by a vehicle driven by Toleda Weldon. State Farm Mutual Automobile Insurance Company provided liability coverage on the Weldon vehicle as well as uninsured motorist coverage to the plaintiff. Plaintiff subsequently brought suit in United States District Court against American Motors alleging that a product defect in the seat of his AMC vehicle was cause in fact of the injuries he suffered in the accident. American Motors responded with a third party demand against Toleda Weldon and her liability insurer alleging the former’s negligence was cause of the plaintiff’s injuries, therefore AMC was entitled to contribution and/or indemnification from the third party defendants. On the day of trial, the liability of Toleda Weldon and her insurer was compromised for State Farm’s $10,000 policy limits, with the stipulation that any judgment obtained against AMC be credited for the same amount. All other rights were reserved unto plaintiff. Thereafter, the jury returned a verdict in favor of the plaintiff and against American Motors in the amount of $90,000, subject to the aforementioned credit. That judgment was satisfied and no appeal was taken.

At the same time the above suit was filed in Federal court, a companion case was filed in State court against all of the parties to the Federal suit, and additionally State Farm in its capacity as the plaintiff’s own uninsured motorist carrier. The State court proceeding was stayed pending resolution of the Federal action. Accordingly, at the end of the Federal case only one issue remained for decision at the state level, to wit: whether the plaintiff could recover from his uninsured motorist insurance carrier. Defendant State Farm moved for a summary judgment contending there was no liability under the underinsured motorist coverage of the plaintiff’s policy because the extent of the plaintiff’s injuries had been determined after trial on the merits and the award was fully satisfied. The trial court agreed and granted the motion.

Appellant maintains that there is no bar, legal or contractual, to his lawsuit for the underinsured motorist coverage pursuant to La. Rev. Stat. 22:1406, and places reliance on the settlement agreement reached with the tort-feasor-driver reserving all rights as to other parties. In other words, appellant contends that he is entitled to relitigate the issue, of quantum and if he can prove his damages exceed $90,000 and if solidary liability between Toleda Weldon and AMC is established, then he would be entitled to recover damages up to State Farm’s policy limits to the extent the award exceeded $90,000. We disagree.

The trial court’s grant of the defendants’ motion for summary judgment was correct. La. CCP Art. 966 provides that a motion for summary judgment should be granted if the pleadings, depositions, admissions on file, together with affidavits, if any, show no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. There was no issue of material fact since the plaintiff’s damages were determined in the prior proceeding and the judgment was fully satisfied. As a matter of law we hold that under these circumstances the tortfeasor was not an underin-sured motorist. Accordingly the reservation of rights is of no effect, there being no rights remaining. We reach this result with an abundance of caution as one’s right to a day in court is a precious right indeed. However, the plaintiff has had his day in court and this, coupled with the interests of judicial economy, mandate the result reached herein. Furthermore, the purposes of the Uninsured Motorist Act would not be furthered by allowing a successful plaintiff to relitigate the issue of quantum in an attempt to recover a higher award.

In Fouquier v. Travelers Insurance Company, 204 So.2d 400 (La.App. 1st Cir. 1967) the Court stated:

“We are of the opinion that when an uninsured motorist is solidarily liable with an insured motorist, and the insurance in effect is valid, enforceable, and sufficient to cover the judgment realized by the plaintiff, there is no necessity for bringing into play the provisions of the uninsured motorist provisions of the policy.”

Accord: Gautreaux v. Pierre, 254 So.2d 476 (La.App. 3rd Cir. 1971). We consider the principles enunciated in Fouquier to be particularly applicable in the present case where a plaintiff has had his damages judicially determined and has been fully compensated by the joint tortfeasors.

For the above and foregoing reasons the judgment of the trial court sustaining the defendants’ motion for summary judgment is affirmed. Costs of this appeal are assessed against the appellant.

AFFIRMED.