author: COLE, Judge. LOTTINGER, Judge,

text:
    Pat BROWN, Jr. v. STATE of Louisiana, Through DEPARTMENT OF PUBLIC SAFETY, DIVISION OF LOUISIANA STATE POLICE.
    No. 13316.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 1980.
    Carolyn P. Perry and Daniel J. Dziuba, Baton Rouge, of counsel, for plaintiff-appel-lee Pat Brown, Jr.
    Howard P. Elliott, Jr., Baton Rouge, of counsel, for defendants-appellants State of Louisiana, through Department of Public Safety, Division of La. State Police.

      Before COVINGTON, LOTTINGER and COLE, JJ.
   COLE, Judge.

This appeal puts at issue the constitutionality of La.R.S. 15:31 as it relates to the summary seizure and destruction of slot machines.

Pat Brown, Jr. filed suit to enjoin the State of Louisiana through the Department of Public Safety, Division of Louisiana State Police Department, from destroying an antique slot machine seized by defendant from Brown’s place of business. Brown also sought return of the seized machine. The trial court held for Brown. Defendant appeals.

The case was tried on a written stipulation of facts, which set forth the following: the slot machine in question was seized from the women’s restroom of Pat Brown’s Claim Service; the machine seized was an operable, one-cent antique slot machine in the possession of Pat Brown, Jr.; the coin box on the machine did not have a lock; the slot machine was not used for gambling purposes; no criminal charges were brought against Brown arising out of his possession of the slot machine.

La.R.S. 15:31, the statute under which the seizure was made, reads as follows:

A. All law enforcement officers of municipal police forces, sheriffs’ departments and the division of state police are hereby authorized and empowered and it is made mandatory and compulsory on their part to confiscate and immediately destroy all gambling devices or machines used for gambling that come to their attention.
B. As used in this section the term “gambling device” means:
(1) any slot machine; or (2) any machine, mechanical or electronic device of any sort whatsoever with a cash automatic payout device; or (3) a pinball or other ball machine, mechanical or electronic device equipped with a mechanism to release the number of free games or replays and a mechanism to record the free games or free plays so released.
C. Whenever any other machine, mechanical or electronic device, including but not limited to roulette wheels and similar devices, designed and manufactured primarily for use in connection with gambling, and (1) which, when operated, may deliver, as the result of the application of an element of chance, any money or property, or (2) by the operation of which a person may become entitled to receive, as the result of the application of an element of chance, any money or property, is used to conduct gambling, then following the conviction of any person for the crime of gambling by use of any such machine or device, the court wherein the verdict of guilty was returned shall order the immediate destruction of the machine or device by the proper law enforcement agency of the parish wherein the machine or device was used for gambling.
D. Whenever any machine or other mechanical or electronic device of any kind whatsoever, not designed and manufactured primarily for use in connection with gambling, including specifically but not limited to coin-operated bowling games, shuffle alleys, mechanical baseball games, pinball games, mechanical guns, electronic ray guns, digger type machines, iron claws, and all similar types of coin-operated games, is used to conduct gambling, then following the conviction of any person for the crime of gambling by use of any such machine or device, the court wherein the verdict of guilty was returned shall order the immediate destruction of the machine or device by the proper law enforcement agency of the parish wherein the machine or device was used for gambling.
E. The ownership of a federal gambling stamp for any machine or device, other than a machine commonly known as an “iron claw” or a “digger” machine, shall be absolute proof of its use for purposes of gambling, and neither the State of Louisiana nor any subdivision, agency, agent or enforcement officer shall be liable civilly or criminally for the destruction of any gambling device or gambling machine for which a federal gambling stamp has been issued.

In the case of State v. Madere, 352 So.2d 666 (La.1977), the Louisiana Supreme Court held the above statute mandated the summary seizure and destruction of slot machines and other “gambling devices” without regard to whether they were used to conduct gambling. In view of this interpretation, there can be no doubt that defendant was authorized by La.R.S. 15:31 to seize and destroy Brown’s antique slot machine.

Brown challenges defendant’s action on the ground that La.R.S. 15:31 is a denial of due process and the right to property guaranteed by the Louisiana Constitution of 1974. Brown correctly points out that pursuant to La.R.S. 15:31 any device determined by a law enforcement officer to be a slot machine is subject to seizure and destruction without any judicial intervention and without notice or opportunity for a hearing. Nor does the statute require the confiscation be in conjunction with a conviction for a crime related to the possession or use of the slot machine. Indeed, possession of a slot machine has not been defined as a crime. Only when a slot machine is used to commit the crime of gambling is there any reprobated activity.

The pertinent provisions of the Louisiana Constitution are Article 1 § 2 and Article 1 §4:

§ 2. Due Process of Law
No person shall be deprived of life, liberty, or property, except by due process of law.
§ 4. Right to Property
Every person has the right to acquire, own, control, use, enjoy, protect, and dispose of private property. This right is subject to reasonable statutory restrictions and the reasonable exercise of the police power.
* sts sfc ♦ * s}c
Personal effects, other than contraband, shall never be taken.

It has long been recognized that a state through the exercise of its police power can constitutionally act to summarily confiscate and destroy things which cannot be put to a lawful use. However if the thing seized is susceptible of a legal use, due process requires notice and opportunity for a hearing. 38 Am.Jur.2d Gambling § 174; 16A C.J.S. Constitutional Law § 645; 14 A.L.R.3d Gambling Devices — Destruction 368.

In La.R.S. 15:31, the legislature has in effect made slot machines contraband, treating them as though they were insusceptible of lawful possession. Yet their possession is not a crime and their use is illegal only when it is in connection with the crime of gambling. Although contraband is excluded from protection from confiscation in Article 1 § 4 of the 1974 Constitution, the state’s power to classify a thing as contraband is limited by due process considerations and by the provision that property rights can be curtailed only by reasonable statutory restrictions and the reasonable exercise of the police power. Hargrave, The Declaration of Rights of the Louisiana Constitution of 1974, 35 La.L. Rev. 1, 20 (1974). We do not think the laudable purpose of suppressing gambling can justify summary seizure and destruction of items legally possessed which are not being used for gambling.

Our Supreme Court had occasion in State v. 1971 Green GMC Van, 354 So.2d 479 (La.1977), to consider the application of Article 1 § 4 of our constitution as regards the seizure and forfeiture of private property. Noting Article 1 § 4 was intended to give far-reaching new protection to the right of citizens to own and control private property, the court held R.S. 40:989(A)(4) dealing with the forfeiture of conveyances used to transport controlled dangerous substances to be an unreasonable restriction on the right to property guaranteed by this provision. The court also defined contraband as property insusceptible of ownership. “It is an article, such as an illegal drug, the possession of which is proscribed by law,” said the court.

We find the reasoning in State v. 1971 Green GMC Van, supra, to furnish appropriate guidelines in determining whether the one-cent antique slot machine in this case is contraband. We hold it is not contraband but personal property protected by Article 1 § 4 of the Constitution.

We conclude La.R.S. 15:31 to be unconstitutional as violative of both Article 1 § 2 and Article 1 § 4 of our constitution. Our finding of unconstitutionality is, however, limited to that part of the statute which deals with the confiscation and immediate destruction, without judicial proceedings, of those items included within the definitional term “gambling device.”

For the foregoing reasons, the judgment of the lower court is affirmed. Costs in the amount of $113.75 are to be paid by defendant-appellant.

AFFIRMED.

LOTTINGER, J., dissents and assigns written reasons.

LOTTINGER, Judge,

dissenting.

I respectfully dissent and disagree with the holding of the majority that La.R.S. 15:31 is unconstitutional to the extent that it authorizes and compels the confiscation and destruction, without judicial proceedings, of those items defined as “gambling devices.”

The majority admits the suppression of gambling is laudable, but concludes it should be restricted only where a device is being used for gambling. I find the majority’s reliance on State v. 1971 Green GMC Van, 354 So.2d 479 (La.1977), to be misplaced.

In State v. Ricks, 215 La. 602, 41 So.2d 232 (1949), Act 231 of 1928, the predecessor legislation of La.R.S. 15:31, came under a due process constitutional attack. The 1928 Act authorized the confiscation and destruction of slot machines. In upholding the constitutionality the court said:

“And the fact that destruction of the slot machine is ordered without notice or hearing does not render the statute unconstitutional as depriving any claimant thereto of due process — as he cannot have or acquire property rights in the condemned article.”

See also the dissent by Gulotta, J. in State v. Madere, 344 So.2d 29, 32 (La.App. 4th Cir. 1977). I too agree the statute is constitutional.

The people speak through the legislature, and as long as its actions are constitutional, it is not for this court or any other court to question its wisdom.

Therefore, for the above reasons I respectfully dissent.

      . La.R.S. 14:90(A) in pertinent part defines the crime of gambling as follows:
      Gambling is the intentional conducting, or directly assisting in the conducting, as a business, of any game, contest, lottery, or contrivance whereby a person risks the loss of anything of value in order to realize a profit.

      . Art. 231 of 1928 provides:
      “That all officers of the State of Louisiana are hereby authorized and empowered, and it is made mandatory and compulsory on their part, to confiscate and immediately destroy all gambling devices known as slot machines that may come to their attention, or that they may find in operation.”


source: Caselaw Access Project

author: COVINGTON, Judge.

license: Public Domain

text:
    Dennis ESTA v. DOVER CORPORATION et al.
    No. 13319.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 1980.
    Rehearing Denied July 7, 1980.

      Allen J. Borne, Franklin, for plaintiff.
    John Nickerson Chappuis, Lafayette, for intervenor Continental Cas. Co. (Transp. Ins. Co.), defendant.
    J. Walter Ward, Jr., New Orleans, for third party petitioners Joseph E. Hoy and The Continental Ins. Co., defendant.
    Robert E. Kerrigan, Jr., New Orleans, for Continental Cas. Co., original defendant, third party defendant and intervenor and for Hoy’s Pontiac-Buick-Olds, Inc. and Joseph E. Hoy, original defendant and third party plaintiffs.
    L. Lane Roy, Lafayette, for Bayou Tractor, Inc. & John Deere Ins. Co., defendants.
    James R. McClelland, Franklin, for Hoy’s Pontiac-Buick-Olds, Inc., defendant and third party plaintiff.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   COVINGTON, Judge.

Dennis Esta instituted this action against a number of defendants for damages arising out of an accident in which he was seriously injured when a vehicle hydraulic lift fell on him while he was under the lift working on his automobile. After trial by jury, a verdict was returned with the jury responding to special interrogatories. The trial judge signed a judgment in accordance with the verdict. Plaintiff has appealed. We affirm.

This suit arises from an accident which happened on November 16, 1976, while the plaintiff was employed as an automobile tire salesman for Hoy’s Pontiac-Buick-Olds, Incorporated, an automobile dealership located in Franklin, St. Mary Parish, Louisiana. On the date of the accident, the plaintiff closed the tire department shortly before his usual quitting time to work on his personal automobile. He drove his automobile onto the vehicle hydraulic lift which was located in the rear of the place of business. With the automobile on the lift, the plaintiff activated the air valve near the lift to raise the automobile. When the car reached the lift’s maximum height, the plaintiff placed a heavy steel pipe beneath the lift as a safety measure and went to get some tools to work on his car. He spent a brief period of time away from the lift in obtaining the tools, and then returned to work on his car. As he commenced his work, the lift and car fell, pinning him underneath the car and causing him serious injuries resulting in paralysis below the waist.

The plaintiff sued the alleged owner of the building and the hydraulic lift (as an appurtenant of the building), Joseph E. Hoy; the alleged employer and lessee of the building and lift, Hoy’s Pontiac-Buick-Olds, Incorporated (Hoy’s Pontiac); and the alleged manufacturers and sellers of the lift, Dover Corporation, Rotary Lift Company and Ernest Holmes Company. The alleged insurer of the manufacturers-sellers, Liberty Mutual Insurance Company, and the alleged insurer of Hoy and of Hoy’s Pontiac, Continental Insurance Company, were joined in the suit as defendants.

More than one year after the accident, the plaintiff sued Bayou Tractor Company and John Deere Insurance Company, its insurer, alleging that Bayou Tractor was responsible for the accident because of repair work it had improperly done on the lift. They filed a plea of prescription which is re-urged here.

Before trial, the plaintiff settled his claims against Dover Corporation, Rotary Lift Company, Ernest Holmes Company, Inc., Hoy’s Pontiac, Joseph E. Hoy, Liberty Mutual Insurance Company and Continental Insurance Company. The claims against all defendants, except Bayou Tractor and its insurer, were thus settled and the suit was partially dismissed.

The suit went to trial against Bayou Tractor and John Deere Insurance before a jury, with the jury being asked to respond to interrogatories, including questions concerning the negligence of the parties with whom the plaintiff had settled. The specific answers by the jury stated that Esta was not in the course and scope of his employment at the time of the accident and was not guilty of negligence or contributory negligence which was a cause of the accident, and that he had not assumed the risk; that Hoy’s Pontiac, through its employees Joseph E. Hoy, Johnny Martin and Tom Boudreaux, was negligent; and that Joseph E. Hoy, as an employee of Hoy’s Pontiac, was negligent. The jury found that Hoy’s Pontiac had custody of the lift, which they found to have created an unreasonable risk of harm to others, including Dennis Esta. Further, the jury responded that Rivers Si-moneaux, an employee of Bayou Tractor, and defendant Bayou Tractor were not negligent. An award of $800,000.00 was made by the jury, but only against parties who had already been released from Esta’s claims in the settlement.

In post-trial argument, the plaintiff contended that John Deere Insurance Company provided some insurance coverage to the parties found liable by the jury, but the trial judge ruled that, based on the jury’s verdict and on the specific answers to interrogatories, the plaintiff had no collectible judgment against any party remaining in the law suit. The judge found that Esta had chosen to settle with the parties who were eventually found to have caused his injuries, and that there was no coverage for those parties under the John Deere policy.

The principal issues before us concern:

(1) Whether Bayou Tractor, through its employees, particularly Rivers Simo-neaux and Joseph E. Hoy, was negligent in repairing the hydraulic lift, which negligence was a cause-in-fact of the accident;
(2) Whether the trial judge committed error in failing to give certain requested jury charges pertaining to the “borrowed servant” doctrine, the doctrine of strict liability of the owner of the building in which the lift was situated, causation of the accident in duty-risk terms and the effect of remedial measures taken after the accident;
(3) Whether the trial judge erred in failing to find coverage under the John Deere Insurance Company insurance policy; and
(4)Whether the trial judge erred in denying the plaintiff’s request to call Joseph E. Hoy under cross-examination.

Under our Constitution of 1974, Article 5, § 10(B), and the case of Arceneaux v. Domingue, 365 So.2d 1330 (La.1978), this court is mandated to give a thorough review of the factual findings of the jury. We must find from the record that there is a reasonable factual basis for the findings of the jury and trial court, and that the record establishes that the findings are not clearly wrong (manifestly erroneous) in order for us to affirm the judgment. B & L Associates, Inc. v. Crump, 369 So.2d 1094 (La.App. 1 Cir. 1979).

1. Was Bayou Tractor negligent in such a way as to have been a cause in fact of the accident?

We have carefully examined the record and we see no manifest error in the jury’s finding that Bayou Tractor was not negligent. The only persons connected with Bayou Tractor who are said by plaintiff to have been negligent were Joseph E. Hoy and Rivers Simoneaux. Mr. Simo-neaux was a mechanic and shop foreman at Bayou Tractor Company. He is the employee who, at the direction of Joseph Hoy, repacked and repaired the lift in question. He testified that he had performed this repacking work some time before the accident; that he had done the repacking properly; and that after the work, he tested it and it worked properly without leaking. The cylinder and ram were not corroded and the lift operated satisfactorily when he tested it. The three expert witnesses called by the plaintiff on the question of the malfunction of the lift did not testify that the job that Simoneaux did caused the accident. Dr. Sabbaghian and Mr. Liebkemann were of the opinion that the packing was not a cause of the accident. Mr. Myers and Dr. Sabbaghian indicated that the surface beneath the safety pipe was a primary cause of the accident.

At the outset, it should be understood that Joseph E. Hoy appears in the case in three capacities: as an individual, as a representative of Hoy’s Pontiac, and as a representative of Bayou Tractor. Mr. Hoy was a major stockholder and officer in both corporations, and owner-lessor of the premises.

Esta settled all of his claims with Joseph E. Hoy, individually and as representative of Hoy’s Pontiac, as well as with the entity, Hoy’s Pontiac. He only reserved his rights against the entity Bayou Tractor (and presumably any acts of Hoy as a representative of Bayou Tractor) and its insurer, John Deere Insurance Company.

Joseph Hoy testified about the accident as follows:

“Q. What, if anything, can you say that if it were that the pipe were placed by Mr. Esta under the rack; then he leaves for a period of 15 minutes. What, if anything, can you say about any warnings that he would have prior to the fall of the lift?
A. The way it was, he didn’t have any warning, because the air was out and I believe that he — and not knowing how to operate the thing, let the air out of it and put off the pressure on the pipe. Now, if the pipe would have been on the bolt, that never would have happened or if he’d have had the pipe and thrown it away, it wouldn’t have happened.”

Mr. Hoy testified that he personally owned the building in which Hoy’s Pontiac operated its business; that he leased the building to Hoy’s Pontiac; that Hoy’s Pontiac owned the hydraulic lift.

He testified further that some months before the accident he had had Bayou Tractor (Rivers Simoneaux) change the packing, because he (Hoy) had noticed some oil seepage. The lift was in working condition, but gave indication of being low on oil; only hydraulic oil was used in the lift. The “repair work” that Simoneaux did was just to replace the packing; he did not give it a general overhaul.

Mr. Hoy further testified that no employee has permission to work on his personal car during working hours and that he did not give Mr. Esta permission to use the lift. He conceded that there were no warning signs, that he had no formal safety programs, and that he had not instructed the plaintiff in its use. He denied that the shop foreman, Thomas Boudreaux, had authority to grant permission to Esta to use the lift.

One of plaintiff’s experts, Fred Liebkem-ann, engineer, in private practice as a consultant, who testified as an expert in the field of mechanical engineering, and who saw the lift three weeks after the accident, stated: (R 572)

“For it (the lift) to fall all the way down most of the fluid would have to be out of the ram and a significant amount of the air pressure released out of the system.”

He said that either a leak in the union or a leak in the packing, or both, could be a cause of this condition. He indicated that as long as there is an adequate amount of oil in the ram, the lift can not come down fast. Mr. Liebkemann observed nothing mechanically wrong with the lift when he viewed it three weeks after the accident. He said packing would usually last for a number of years; that as the packing wears, you might have to tighten the flange. He also indicated improper placement of the safety-pipe could cause the lift to fall. There was an indication that use of the wrong-type of hydraulic fluid might cause some problems, but he did not know what brand or weight of oil was actually used in the lift. Mr. Liebkemann did not examine the packing that was actually used in the lift. He was primarily concerned with the design of the lift and had initially tested it for the manufacturer’s insurer.

On cross-examination (R 588), Mr. Lieb-kemann testified:

“Q. . Mr. Liebkemann, it was not your opinion, sir, in the report that you rendered that the packing was the cause of the accident, was it?
A. No.”

He also expressed the opinion that the pipe in use at the time of the accident was an adequate safety device if properly used.

Dr. Mehdy Sabbaghian, a professor at LSU in the mechanical engineering department, was accepted as an expert in that field. He examined the lift on two occasions, in April, 1977 and July 1, 1977. He did not pay special attention to the packing. He observed the broken concrete and oil saturation of the soil beneath the lift. The pipe could support over 6000 pounds, so it was an adequate safety device, if properly placed and used. He opined that the pipe may have broken through the concrete where it was weakened from leaking oil. He also thought there had been leakage at the union. He said the cylinder and ram were not noticeably corroded. He stated that if only air (without oil) was in the system, the lift could fall rapidly.

Harold Myers, a consulting mechanical engineer who does mostly failure analysis type work, testified that on December 20, 1976, after the accident, he examined the lift. Mr. Myers indicated that the lift would fall slowly if there was a slow leak in the packing (which is not intended to be liquid tight or air tight). The union was not leaking when he examined it. He tested the lift, and there was no leak. He indicated that it was not the pipe that failed but the surface beneath the pipe (apparently the concrete). Mr. Myers answered that if the lift were raised without difficulty by using the air valve, it indicated there were no significant leaks in the system at the time of the accident. He also saw no corrosion.

Arthur J. Sinitiere, Jr., an employee of Hoy’s Pontiac as a general mechanic, testified to Rivers Simoneaux, an employee of Bayou Tractor, repairing the lift when repairs were needed. He only remembers one time that the repairs were made. He did not actually see the accident. He and Mr. Bordelon helped get Mr. Esta from under the lift after Mr. Cancienne had raised the lift by operating the air valve. He (Siniti-ere) had used the lift many times. Hoy’s Pontiac had some problems with the lift, in that “ . . . sometime it didn’t operate right and sometime it did. The only thing you just have to know how to use it.” He sometimes noticed oil around the base of the lift. It was “common knowledge” of some leaking oil. They always put the pipe underneath the lift. The only time he saw the lift come down was when the pipe was not put in place. There were no warning signs, and Hoy’s Pontiac had no safety program.

Hermy P. Belanger had been a part time employee of Hoy’s Pontiac for about two years at the time of the accident — greased cars, changed the oil, washed cars, etc. The pipe fell a couple of times with him, but the rack did not come down. He saw Simo-neaux of Bayou Tractor work on the lift one time, changing the packing. There were no warning signs. Belanger had worked at a service station where they had a similar grease rack, so he knew how to use it. He recalled some instances when the rack came down slowly — when the pipe was not under it. There was no leaking at the union. He did observe a broken area in the concrete and he had seen some oil leakage.

Emmet John Martin, the general manager of Hoy’s Pontiac and son-in-law of Joseph E. Hoy, testified to Rivers Simoneaux repairing the lift. He knew of some oil leaks, which were fixed. There were no instructions on the grease rack, and no safety programs at Hoy’s Pontiac. Martin was out of town during the day and did not learn until later of the plaintiff’s accident. He did not know Esta was going to use the lift that day. The employees were told not to work on their personal cars during work hours. He had used the lift and it worked all right. Mr. Esta had no mechanic duties; his job was in the tire department.

Thomas E. Boudreaux, the shop foreman at Hoy’s Pontiac, was in the parts department when the accident happened. He had given Esta permission to use the lift to work on Esta’s car. He did not instruct the plaintiff in how to use the lift, and there were no warning signs or safety programs.

Mr. Boudreaux, as shop foreman, used the lift to check cars to see what had to be done to them, so he had used it frequently. He had had no problems. There were some oil leaks. After the accident, the lift was down and the pipe had gone through the concrete.

Dennis Esta, the plaintiff, testified that Tom Boudreaux gave him permission to use the hydraulic lift. Neither Boudreaux nor anyone else at Hoy’s Pontiac gave him any instructions on its use, although he had never used the lift. He raised the lift and placed the safety pipe under it. There were no rack hands around to operate the lift. He stated that he was checking the differential oil when the lift and the car fell without warning “like a brick.” He was pinned beneath the lift in a sitting position, severely injuring him. He was rescued by two of the employees of Hoy’s Pontiac and taken to the hospital.

Mr. Esta had worked in the tire department of Hoy’s Pontiac for only a short time, and had received no warnings about the dangers of the lift, and no instructions on its use. Although there may have been a company policy against working on personal cars and use of the lift, Mr. Esta was given specific permission by the shop foreman to use the lift to work on his own car. There is no evidence that Mr. Esta was contributo-rily negligent or assumed the risk of injury to himself. The jury correctly found that the accident was not due to the fault of Mr. Esta.

Further, there is no evidence to show that Mr. Hoy acted negligently on behalf of Bayou Tractor. The jury found that his negligence was committed as an employee or agent of Hoy’s Pontiac, not Bayou Tractor. The record supports this finding. Mr. Hoy was not a mechanic and performed no work himself on the lift in connection with the repacking job. There is no evidence that Mr. Hoy failed to perform adequately his duty to direct the repacking work of Mr. Simoneaux for Bayou Tractor. He did, however, fail in his duty as an executive officer of Hoy’s Pontiac to properly warn his employee, Mr. Esta, of the dangers of using such a lift and to properly instruct, or have instructed, his employee on its proper use.

From a fair appraisal of the testimony, one can only conclude that the accident was primarily caused by Hoy’s Pontiac’s failure to warn users of the lift of the dangers connected with its use, and failure to properly instruct users in its use. Hoy’s Pontiac took no safety precautions. The evidence shows no defect in the lift’s design or manufacture, or that it was negligently repaired by Bayou Tractor. The accident was not caused by malfunction, but by improper use due to failure of Hoy’s Pontiac to properly instruct on its use, or to prevent its use by persons not properly instructed on how to use it safely. The record reveals that there was a reasonable factual basis for the finding that Bayou Tractor was not negligent and the record establishes that the findings of the jury were not clearly wrong.

2. Did the trial judge err in refusing to give certain requested jury charges?

a. Requested charge on “borrowed servant” doctrine.

Plaintiff argues that the trial judge committed error in denying plaintiff’s requested charge on the issue of “borrowed servant” as set out in plaintiff’s requested jury charge. The record reveals that the trial judge did instruct the jury on this issue in his general charge. He is not required to give a charge unless the facts support the giving of the charge. Beck v. Lovell, M.D., 361 So.2d 245 (La.App. 1 Cir. 1978), writ denied, 362 So.2d 802 (La.1978). In the instant case, it was not a question of Hoy’s Pontiac borrowing Simoneaux. All of the evidence on this question leads only to the conclusion that Simoneaux was, and at all pertinent times remained, the employee of Bayou Tractor. Thus, the case of LeJeune v. Allstate Insurance Co., 365 So.2d 471 (La.1978), cited by appellant, is inapplicable. In addition, the requested charge does not fully and accurately state the law regarding the “borrowed servant” doctrine. See Haynes v. Baton Rouge General Hospital, 298 So.2d 149 (La.App. 1 Cir. 1974), writ denied, 302 So.2d 33 (La. 1974).

Since the jury found Simoneaux not negligent, it was not necessary for it to decide the question of whether Simoneaux was acting as an employee of Bayou Tractor or a “borrowed servant” of Hoy’s Pontiac. Consequently, the court’s instruction regarding the “borrowed servant” doctrine had no significance as far as the activities of Simoneaux were concerned. The jury’s answers to the interrogatories clearly show that it found Simoneaux to be an employee of Bayou Tractor. There is no evidence which can be construed as showing that he was a “borrowed servant” of Hoy’s Pontiac. As to Joseph E. Hoy, an executive officer of both Bayou Tractor and Hoy’s Pontiac, the jury found that he was representing Hoy’s Pontiac when he acted negligently. The record amply supports this finding.

b. Requested charge on causation in duty-risk terms.

At the trial of this case, the plaintiff requested certain jury charges on the issue of causation in terms of the duty-risk tort analysis theory. The substance of these special charges was that the wrongful conduct need not be the “sole cause” of the harm; the harm could be caused by the combined fault of the defendants. The general charges of the trial judge adequately covered the substance of the plaintiff’s requested special charges. We find the judge’s instructions fully meet the correct legal standards for determining tort liability in this state, some of which are mentioned in LeJeune v. Allstate Insurance Co., supra.

The LeJeune case was cited in Brown v. Louisiana Department of Highways, 373 So.2d 605, 608 (La.App. 3 Cir. 1979), as follows:

“In order to establish liability on the part of the Department, plaintiffs must not only show that the defendant’s conduct was tortious, but also that the acts complained of were a cause-in-fact of their injuries. To be a cause-in-fact of plaintiff’s harm, the negligent conduct must have been a substantial factor in causing the accident. Such conduct need not be the sole cause, but it has to be a necessary ingredient of the resulting injuries and direct relationship between the two is required.”

c. Requested charge on doctrine of strict liability.

The evidence in the record of this lawsuit clearly shows that the lessee, Hoy’s Pontiac, not the lessor, Joseph E. Hoy, owned and had custody of the hydraulic lift. There was no evidence upon which a charge of “strict liability” could be based. Beck v. Lovell, supra; Haynes v. Baton Rouge General Hospital, supra. Articles 2317 and 2322 are inapplicable to the present factual situation. We hold that it was not error for the trial judge to refuse to give the requested charge on the doctrine of “strict liability.” The case of Olsen v. Shell Oil Company, 365 So.2d 1285 (La.1979), is factually distinguishable from the instant case and is inapposite.

The only testimony concerning the ownership and custody of the hydraulic lift shows that the lift was purchased by Hoy’s Pontiac as used equipment several years before the accident, that it was always used in the business of Hoy’s Pontiac and that it was always in the custody of Hoy’s Pontiac on the leased premises. The uncontradicted evidence shows that the lift was not owned by Joseph E. Hoy, individually. Mr. Hoy, as an individual, had no custody or control over the lift. The only connection which he, individually, had with the lift was that he owned the land and building where the accident happened, and that both land and building were leased by written lease from Joseph E. Hoy to Hoy’s Pontiac-Buick-Olds, Incorporated, which lease had an indemnification clause in favor of the lessor.

d. Requested charge on the effect of remedial measures taken after the accident.

Although the plaintiff raises the question of the failure of the trial judge to instruct the jury on the completion of remedial measures on the hydraulic lift, as requested in one of plaintiff’s requested special charges, the record reflects that this was not a prejudicial error. The so-called remedial measure concerning which the plaintiff sought to offer evidence was that employees of Bayou Tractor welded a gravity operated safety leg on the lift following the accident. We find that such evidence had no relevance to the question of a maintenance contract between Hoy’s Pontiac and Bayou Tractor, especially when all of the evidence in the record shows that there was no such contract; such evidence had no relevance to the repacking work which Bayou Tractor’s employee, Rivers Simoneaux, did on the lift. See Boudoin v. Schwegmann Bros. Giant Supermarket, 371 So.2d 370 (La.App. 4 Cir. 1979).

In addition, a case cited by plaintiff in his brief on appeal, Wallner v. Kitchens of Sara Lee, Inc., 419 F.2d 1028, 1032, (U.S. C.A. 5 Cir. 1969), is factually distinguishable because in Wallner it was a question of who was responsible for the repair and routine maintenance of the particular equipment, while the question in the instant case was whether Bayou Tractor had negligently performed a particular repair job. To have allowed evidence of the post-accident change of the safety leg on the lift would have been to have allowed such evidence to show the negligence of Bayou Tractor. Post-accident changes are not admissible for such purposes. In the case of Lea v. Baumann Surgical Supplies, Inc., 321 So.2d 844 (La.App. 1 Cir. 1975), writ denied, 325 So.2d 279 (La.1976), it was stated that: “It is well settled that evidence of changes, repairs, or corrective measures taken subsequent to an accident, for the purpose of preventing a similar recurrence, is inadmissible to show negligence or establish an admission of fault.” The Wallner case, relied upon by plaintiff, also recognized the rule that post-accident changes are not admissible to demonstrate the negligence of the defendant.

Considering the requested special charges as a whole, we find that the requested special charges were adequately covered by the general charges, and the failure to amplify by including the specific verbiage requested by plaintiff’s counsel in each particular instance does not constitute reversible error. Haynes v. Baton Rouge General Hospital, supra.

3. Was there coverage under the John Deere Insurance Company policy so as to make the insurer liable to the plaintiff?

It is the plaintiff’s contention that John Deere Insurance Company is liable to him under the insurance policy involved herein, as the insurer of Bayou Tractor, which negligently repaired the hydraulic lift, and as the insurer of Joseph E. Hoy, who is strictly liable to the plaintiff as well as being negligent as an employee of Hoy’s Pontiac and also negligent as an employee of Bayou Tractor.

There is no merit in the plaintiff’s attempt to hold the employer liable on the grounds that Joseph E. Hoy was negligent as an employee of Hoy’s Pontiac and Bayou Tractor. Williams v. Marionneaux, 240 La. 713, 124 So.2d 919 (1960), holds that a settlement with the agent or employee releases not only the agent-employee, but releases the employer who is only vicariously or secondarily liable under the doctrine of re-spondeat superior, even though the plaintiff reserves his rights against the employer and his insurer in the compromise agreement. See also Caldwell v. Montgomery Ward & Company, Inc., 271 So.2d 363 (La.App. 2 Cir. 1972).

However, as mentioned above, plaintiff asserts that even if John Deere Insurance is not liable as the insurer of Bayou Tractor, it is liable as the insurer of Joseph E. Hoy and/or of Hoy’s Pontiac.

The record shows that the plaintiff settled with all defendants, including Joseph E. Hoy and Hoy’s Pontiac, reserving only his rights against Bayou Tractor and John Deere Insurance.

We find no language in the insurance policy that can be construed to cover Joseph E. Hoy acting on behalf of any entity other than Bayou Tractor, or to cover Joseph E. Hoy in his other individual activities, or to cover Hoy’s Pontiac. The policy in the record does not include Joseph E. Hoy or Hoy’s Pontiac as an “insured” as the plaintiff asserts. Bayou Tractor (a partnership which became a corporation) was the business insured by John Deere Insurance under this policy. The record does not support the plaintiff’s claim that Mr. Hoy and Bayou Tractor exercised control and management over the hydraulic lift. Rather, the evidence shows that the lift was owned by Hoy’s Pontiac, which had the sole control and management over it. The record shows that Mr. Esta settled with Hoy’s Pontiac, as well as with Mr. Hoy. We regard his settlement with Joseph E. Hoy, which encompasses full settlement regardless of whatever nature, as an unequivocal compromise of all differences and release of all “liability whatsoever” between Mr. Hoy and Mr. Esta. There is no indication in the agreement that he was releasing Mr. Hoy only insofar as the latter was acting for Hoy’s Pontiac. Plaintiff also released all representatives of Mr. Hoy and Hoy’s Pontiac and their “indemnitors.” See Manning v. Duncan, 353 So.2d 1353 (La.App. 1 Cir. 1977).

The basic question on the issue of insurance coverage is whether any employee of Bayou Tractor was negligent while acting in the course and scope of his employment with Bayou Tractor at the time of the Esta accident. The jury’s answers to the interrogatories on this question were in the negative. Rivers Simoneaux was found by the jury to be not negligent, and the evidence in the record supports this finding. The only other person connected with Bayou Tractor who could be said to be involved was Joseph E. Hoy. The jury’s response indicates that he was negligent, but only in his activities connected with Hoy’s Pontiac.

Our study of the pertinent insurance policy convinces us that coverage is afforded Hoy, other employees, and other executive officers of Bayou Tractor only while they are acting in behalf of or in the course of their employment for Bayou Tractor. The provisions of the policy make it clear that the actions of Mr. Hoy as an executive officer are only covered by the policy if such actions are for Bayou Tractor. The policy covers the “persons insured” only in the event they are acting in furtherance of the business of the main named insured, Bayou Tractor. The jury, as discussed above, found that Mr. Hoy was not so acting at the time of the accident.

Therefore, the plaintiff has no claim against John Deere Insurance Company under the terms and provisions of the insurance policy involved herein. Meche v. Travelers Insurance Company, 222 So.2d 339 (La.App. 1 Cir. 1969), writ refused, 254 La. 760, 226 So.2d 522 (1969).

4. Was error committed by the trial judge in denying the plaintiff’s request to call Joseph E. Hoy under cross-examination?

The record reflects that the plaintiff had already called Rivers Simoneaux as representative of Bayou Tractor and cross-examined Mr. Simoneaux as he desired, when he then sought to call Mr. Hoy as representative of Bayou Tractor under the rule of LSA-C.C.P. art. 1634. This procedural rule permits a party to call an adverse party (or his representative) under cross-examination. It also gives the court discretion to allow further cross-examination if it “deems such action to be in the interest of justice.” The judge did not allow counsel’s request. We believe that under the circumstances of this case Mr. Hoy was a representative of an adverse party, Bayou Tractor, and as such, the plaintiff had a right to call him under the rule. Powell v. Parkview Estate Nursing Home, Inc., 240 So.2d 53 (La.App. 2 Cir. 1970).

However, the trial court’s ruling, if incorrect as we believe, was harmless error. It had no effect on the outcome of the trial and in no way prejudiced the plaintiff’s case. The court’s ruling did not deprive the plaintiff of his opportunity to cross examine and impeach Joseph E. Hoy, if he so desired. The record reveals that the plaintiff did use Hoy’s deposition to question him about prior inconsistent statements. Mr. Hoy did not deny making the statements complained of in the deposition; he admitted making them. Mr. Hoy simply testified that the statements in the deposition were untrue or incorrect. It was a question for the jury to decide which statements of Mr. Hoy it chose to believe, and whether or not his testimony was credible. There was no basis for putting the deposition itself in evidence.

The record also reflects that this particular individual had been a party to the action and had been voluntarily released from the suit by the plaintiff. Esta did call Mr. Hoy as his witness, but was allowed considerable latitude in his questioning on direct examination. The record does not indicate that counsel was prevented from asking the questions he wanted to ask or was in any way prejudiced by this procedure. He was allowed much leeway in leading this witness and in extracting answers from Mr. Hoy.

Further, the record reflects that the plaintiff was not deprived of his opportunity to cross examine Mr. Hoy. Mr. Hoy was called as a witness by defendants, and plaintiff’s counsel exercised fully his right of cross examination. We find that under the facts and circumstances of this case, the trial judge did not commit prejudicial error in refusing to allow the plaintiff to call Mr. Hoy under the rule.

In view of the foregoing disposition of the case, we will forego any discussion of the plea of prescription made by the defendants, Bayou Tractor and John Deere Insurance.

Accordingly, for the reasons assigned, we affirm the judgment appealed at the appellant’s costs.

AFFIRMED.

      . The pertinent answers to interrogatories by the jury follow:
      Number 3: Was Joseph Hoy guilty of negligence which was a proximate cause of the accident and injuries to Dennis Esta?
      Ans. Yes.
      Number 4: If you answer No. 3 above “yes” then answer this question. At the time of his negligence which you have found was a proximate cause of the accident and injuries to Dennis Esta, was Joseph Hoy acting for himself, Hoy’s Pontiac and/or Bayou Tractor Company?
      Ans. Hoy’s Pontiac.
      Number 5: Was Rivers Simoneaux guilty of negligence which was a proximate cause of the accident and injuries to Dennis Esta? Ans. No.
      Number 8: Was Hoy’s Pontiac-Buick-Olds, Inc. negligent which was a proximate cause of the accident and injuries to Dennis Esta? Ans. Yes. '
      Number 9: If you answered No. 8 “yes”, please indicate who acted on behalf of Hoy’s Pontiac in performing the negligence which was a proximate cause of the accident of Dennis Esta.
      Ans. Joseph Hoy, John Martin, Tom Bou-dreaux.
      Number 10: Did Hoy’s Pontiac have in its custody a thing which created an unreasonable risk of harm to others?
      Ans. Yes.
      The answers to other interrogatories indicated that Dennis Esta was not at fault for his own injury; that the manufacturer and seller of the lift, Dover Corporation and Rotary Lift Company were not negligent; and that Bayou Tractor was not negligent. The jury concluded that the sole proximate cause of the accident and injury to Esta was the negligence of Hoy’s Pontiac through its employees, Hoy, Martin and Boudreaux and in keeping a lift which “created an unreasonable risk of harm” to Esta.

      . Plaintiff’s requested jury charge as to “borrowed servant” follows:
      “If you find that Joseph E. Hoy, Rivers Simo-neaux or any other employee, representative or agent of Bayou Tractor Company was a borrowed employee of Hoy’s Pontiac-Buick-Olds, Inc., Bayou Tractor Company is still liable to Dennis Esta even for the negligent acts of Joseph E. Hoy, Rivers Simoneaux or any other employee, representative or agent committed as borrowed employees of Hoy’s Pontiac-Buick-Olds, Inc. [LeJeune v. Allstate Ins. Co., 365 So.2d 471 (La.Sup.Ct.1978)].”

      . (1) Judgment of dismissal of suit dated February 16, 1979, against Dover Corporation, Rotary Lift Company, Ernest Holmes Company and Liberty Mutual Insurance Company was based on a settlement and compromise, which was executed on February 15, 1979.
      (2) Judgment of dismissal of suit dated April 11, 1979, against Joseph E. Hoy, the Continental Insurance Company, Hoy’s Pontiac-Buick-Olds, Inc. and Continental Casualty Company was based on a settlement, reserving all rights against Bayou Tractor Company and John Deere Insurance Company, which was executed on April 11, 1979.


author: LOTTINGER, Judge.

text:
    J. T. DOIRON, INC., Realtor v. Ed LUNDIN.
    No. 13321.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 1980.

      Joseph A. Perrault, Jr., Baton Rouge, for plaintiff-appellant J. T. Doiron, Inc., Realtor.
    Macallynn J. Achee, Baton Rouge, for defendant-appellee Ed Lundin, Sr.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   LOTTINGER, Judge.

This is a suit by the plaintiff to collect a $1,200.00 fee for appraising two pieces of property in Baton Rouge. The defendant admitted the appraisal was conducted but claimed that it was requested and done for a corporation, Tasco, Inc. (Tasco), and not for the defendant in his personal capacity. The trial judge ruled in favor of the defendant and the plaintiff has timely appealed.

The sole issue on appeal is whether the plaintiff knew or should have known that the defendant was acting as an agent of Tasco, Inc. when he requested the appraisal.

The defendant, Ed Lundin, Sr., was vice president of Tasco, Inc. during the period pertinent to this case. He previously owned the sheet metal and roofing company, but sold his interest in the outfit in the early 1970’s to the Belanger family. Walter Belanger became president of Tasco. In late 1976, at the request of Belanger, the defendant contacted representatives of the Doiron Company to make an appraisal on two pieces of property. One of the pieces of property was assessed in Tasco’s name, while the other was assessed in the name of a third party.

Russell and Clifford Doiron, representatives of the plaintiff firm responded to the defendant’s phone call and met the defendant at Tasco’s office the following day to discuss the appraisal. The testimony is conflicting as to what transpired during this initial visit.

The Doirons claim they dealt predominantly with the defendant, who they say approved the appraisal work and agreed to the quoted fee of $1,200.00. They contend they were never told by the defendant or anyone else at Tasco that the appraisal was being done for the company rather than for the defendant or that the defendant had requested the appraisal as an agent on Tas-co’s behalf.

The defendant, his son and Belanger all indicated that the plaintiff’s representatives were or should have been aware that the work was being done for Tasco. The initial discussion took place at Tasco’s office where Tasco, Inc. signs were prominently displayed; much of the discussion was conducted with Belanger rather than the defendant; and one of the pieces of property appraised was assessed in Tasco’s name. None of the defendant’s witnesses, including the defendant himself, testified unequivocally that the defendant informed the plaintiff’s representatives that he was acting as an agent of Tasco in requesting the appraisal. The defendant’s witnesses seemed to conclude that the defendant’s status as an agent was obvious from all the surrounding circumstances. They seemed to assume that the plaintiff representatives knew of the agent/principal relationship.

After appraising the two properties, the plaintiff’s representatives hand delivered a copy of the appraisal to the defendant. An attached invoice was made out to the defendant in care of Tasco, Inc. The invoice was never paid. Tasco went bankrupt and after repeated attempts to collect the bill, the plaintiff filed this suit.

The trial court apparently agreed with the plaintiff that the defendant never actually told the plaintiff’s representatives that the defendant was acting as Tasco’s agent. However, in his written reasons for judgment, the trial judge held there was sufficient evidence to conclude “that plaintiff, as a businessman, knew or should have known that defendant was an officer of Tasco, Inc. and that the request for an appraisal was made in the name of the corporation and not at defendant’s personal instance.” Pointing to the fact that Tasco's corporate logo was prominently displayed at the office and that the plaintiff repeatedly sought payment from the defendant in care of Tasco, Inc., the trial judge held that the plaintiff was cognizant of the defendant’s relationship to Tasco. He therefore relieved the defendant of personal liability.

Louisiana law has long provided that an agent who fails to disclose his status and his principal’s identity becomes personally liable for debts incurred at his behest, even if the work is done for the benefit of his principal. LSA-C.C. arts. 3012, 3013; Chartres Corporation v. Twilbeek, 305 So.2d 730 (La.App. 4th Cir.1974); Prevost v. Gomez, 251 So.2d 470 (La.App. 1st Cir.1971); Bush v. Saucier, 197 So.2d 907 (La.App. 1st Cir.1967); Three Rivers Hardwood Lumber Co. v. Gibson, 181 So. 607 (La.App. 2nd Cir.1938); Bedford, Breedlove & Robeson v. Jacobs, 4 Mart.N.S. 528, 8 Mart.O.S. 267 (1826).

The general rule gleaned from the above authorities places an affirmative duty on the agent to tell those with whom he is dealing that he is an agent acting for a certain principal. Absent disclosure of a special status, the law presumes that a person is acting in his individual capacity and holds him personally liable for his actions. The person who claims he is acting as an agent bears the burden of proof at trial to show this special status.

What constitutes disclosure sufficient to put a third party on notice of a principal/agent relationship has been the turning point of some cases. Prevost v. Gomez, supra; Three Rivers Hardwood Lumber Co. v. Gibson, supra; Wilson v. McNabb, 157 So.2d 897 (La.App. 1st Cir. 1963); Chartres Corporation v. Twilbeek, supra. Certainly, actual written or verbal communication by the agent to the party with whom he is dealing is the best method to disclose the agent’s status. The agent who reveals his status and his principal’s identity in such a way has performed the affirmative duty placed on him by the law and has removed the presumption that he acted in his individual capacity.

But when such a straightforward disclosure is not employed, an agent still may be able to escape individual liability by proving that sufficient indicia of the agency relationship were known by the third party to put him on notice of the principal/agent relationship. Express notice of the agent’s status and the principal’s identity is unnecessary if facts and circumstances surrounding the transaction, combined with the general knowledge that persons in that type of business are usually acting as agents, demonstrate affirmatively that the third person should be charged with notice of the relationship. Prevost v. Gomez, supra; Three Rivers Hardwood Lumber Co. v. Gibson, supra, quoting at length with approval 3 C.J.S. § 216.

In the case at bar, the initial meeting to discuss what was expected of plaintiff took place in the offices of Tasco, which was located in a building owned by Tasco, and upon which was prominently displayed the logo of Tasco. The appraisal report states that one of the properties appraised was assessed to Tasco. In addition to defendant, defendant’s son, an employee of Tasco, and the president of Tasco testified that defendant was representing the corporation in any conversations he had with representatives of plaintiff. We must conclude, as did the trial judge, that there are sufficient facts and circumstances surrounding this transaction known to plaintiff as to put it on notice that defendant was not acting as principal, but rather as agent.

Therefore, for the above and foregoing reasons, the judgment is affirmed at appellant’s costs.

AFFIRMED.


author: COLE, Judge.

text:
    Daize (Daes) CHERAMIE v. Raphael VEGAS et al.
    No. 13447.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 1980.
    Rehearing Denied July 7, 1980.

      Harold Molaison, Gretna, and P. Keith Daigle, New Orleans, for plaintiffs-appel-lees Daize (Daes) Cheramie et al.
    Edward T. Diaz, Golden Meadow, John R. Martzell, William Rosen, New Orleans, for defendants-appellants Raphael Vegas et al.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   COLE, Judge.

Prom an interlocutory judgment overruling the dilatory exception, raising the objection of unauthorized use of summary proceedings, the defendants appealed and plaintiffs now move to dismiss the appeal and have the matter remanded. The principal contention of movers is that the judgment, being interlocutory, is not appealable since it cannot cause irreparable injury. La.C.C.P. art. 2083.

We grant the motions to dismiss and remand for further proceedings consistent with these reasons.

On May 21,1976, a consent judgment was signed by the trial court “permanently fixing and establishing the true boundary line between the Plaintiffs and the Defendants.” On May 21,1979, the plaintiffs petitioned for a rule to show cause “why the judgment heretofore rendered in these proceedings . . . should not be corrected so as to comply with the intent of the parties at the time said Consent Judgment was rendered.” In response to this summary proceeding, one of the defendants, on June 1st filed the dilatory exception raising the objections of vagueness and unauthorized use of summary proceedings. Other defendants, on August 29th, filed the peremptory exception raising the objections of res judicata, no cause of action, and no right of action. These defendants also moved to adopt the dilatory exception previously filed asking that the court consider it as having been made on their behalf.

On November 8th, the trial judge overruled the objection of unauthorized use of summary proceedings concluding “an evi-dentiary hearing should be held to determine the merits of the contentions made by plaintiff. . . . ” He stated that all other exceptions and motions would be taken under advisement and disposed of after the evidentiary hearing.

The issue of possible irreparable harm resulting from the judgment appealed has already been presented to this court upon an application for supervisory writs. We refused the writs noting the lack of showing that irreparable harm would ensue from the trial court’s ruling. We have again given careful consideration to appellants’ position and concede that serious questions are presented. However, considering the procedural posture of the case, their resolution at the trial level is appropriate and this will not cause irreparable injury to appellants.

The standard for determining whether an interlocutory judgment may cause irreparable injury is whether any error in the judgment may be corrected as a practical matter in an appeal following the determination of the merits. Jacobs v. Jacobs, 365 So.2d 25 (La.App. 4th Cir. 1978). We conclude this is such a case. We would be able to correct any error in the judgment appealed following a determination of the merits of appellees’ rule.

More importantly, there are pending exceptions which must be tried and decided in advance of the trial of the merits of the rule. The trial court erred in holding these exceptions would be taken under advisement and disposed of after the evidentiary hearing. LSA-C.C.P. art. 929. Should appellants prevail upon the trial of their peremptory exception, raising the objection of res judicata, the merits of the rule will not be reached.

It is in the interest of judicial time and economy that the trial court hear and determine all issues before it prior to appellate review. Orderly procedure would suggest the dilatory exception raising the objection of vagueness be first tried and thereafter the peremptory exception be tried.

For these reasons, the motions to dismiss are granted and the case is remanded. Appellants are cast for costs of this appeal.

DISMISSED AND REMANDED.


text:
    HAUSERMAN, INC. v. ROUSSEL-HART GENERAL CONTRACTORS, etc., et al.
    No. 13324.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 1980.
    Rehearing Denied July 7, 1980.
    Frank P. Simoneaux, Baton Rouge, for plaintiff-appellant, Hauserman, Inc.
    George K. Anding, Jr., Baton Rouge, for defendants-appellees, Roussel-Hart General Contractors (A Partnership) and Fidelity and Deposit Co. of Maryland.
    John H. Fetzer, III, Baton Rouge, for defendant-appellee, Fidelity and Deposit Co. of Maryland.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   COVINGTON, Judge.

The primary question presented by this case is whether the one-year prescription of LSA-R.S. 38:2247 applies to a subcontractor’s suit against a surety on a public work contractor’s bond where the subcontractor did not complete the work under the subcontract until more than one year after the work had been accepted by the owner.

The pertinent facts are not in dispute. On May 9, 1975, Roussel-Hart General Contractors and the State of Louisiana, Louisiana Health and Human Resources Administration, entered into a public contract whereby the contractor agreed to furnish all labor, materials, tools, equipment, and other facilities, and perform all work necessary for additions and renovations to the Earl K. Long Memorial Hospital in Baton Rouge, Louisiana. This public contract was filed on May 9, 1975, along with a performance bond in favor of the State, as owner, with Fidelity and Deposit Company of Maryland as surety.

On May 12, 1975, Roussel-Hart, the contractor, entered into a subcontract with Hauserman, Inc. for certain casework in connection with the prime contract. Thereafter, Hauserman subcontracted with L. J. Voorhies Associates, Inc. Unfortunately, Voorhies defaulted on the subcontract, and Hauserman was called upon to complete the casework.

The State accepted the work on the Hospital as complete on May 17, 1977, and notice of the acceptance was filed in the mortgage records on May 27, 1977.

However, a punch list was prepared by the State and submitted to Roussel-Hart, who, in turn, gave the list to Hauserman, showing the defective items which had to be completed before the $17,181.30, retained by the State, would be paid to Hauserman.

Hauserman undertook the work on the punch list items, and, according to its installation superintendent, completed them in April of 1978. Roussel-Hart refused or failed to pay to Hauserman the balance due and this suit followed on November 29, 1978, against the contractor and its surety.

The defendants filed a general denial and asserted that the alleged subcontract was the best evidence to its terms. Thereafter, defendant surety filed an exception of prescription of one year under LSA-R.S. 38:2247.

When the exception came on for hearing, the trial court maintained the exception of prescription, with written reasons, and rendered judgment dismissing the suit of Hau-serman, Inc. against the surety, Fidelity and Deposit Company of Maryland. The plaintiff devolutively appealed this judgment.

It is appellant’s first position that LSA-R.S. 38:2247 means that a claimant has one year from “maturity of his claim” in which to bring suit on his subcontract. On this point, Hauserman argues that any claim it might have asserted prior to its completion of the punch list items would have been premature; it is only after work is fully complete that a subcontractor may sue for payment under the contract. Levingston Supply Company, Inc. v. American Employers Insurance Company, 216 So.2d 158 (La. App. 1 Cir. 1968). The Levingston case did not involve the question of whether a subcontractor could sue for the balance due on its contract with the general contractor pri- or to the completion of all its work under its contract, but dealt with the question of whether the invoices of a materialman for material furnished to a subcontractor were due at the time the materialman’s lien was filed. Under the particular circumstances of the case, the Court found that the invoices were due, and that the filing of the materialman’s lien was not premature.

We find that the case of Marquette Cement Manufacturing Company, Inc. v. C. J. Normand, 249 La. 1027, 192 So.2d 552 (1966), is dispositive of the instant case. In Marquette there was an action against a highway contractor and his surety brought by a materialman who sold cement to the contractor for the balance due. The highway contractor had a highway construction contract with the State Department of Highways. The State recorded its acceptance of the completed work on April 15, 1963. The materialman filed its suit against the contractor and surety on August 14, 1964, more than one year after registry of acceptance. Defendant surety pleaded the one-year prescription under LSA-R.S. 38:2247. Plaintiff contended that the suit was timely under LSA-R.S. 38:2189, establishing the three-year prescriptive period. Plaintiff reasoned that the one-year prescription applied only to concursus proceedings or to bond actions against the surety alone. The Supreme Court held that the one-year prescription of LSA-R.S. 38:2247, not the longer prescription period of LSA-R.S. 38:2189, applied to an action by a materialman against a contractor and its surety for materials furnished, and hence a materialman’s action commenced more than one year after formal acceptance of the public work was barred by prescription. See also E. L. Burns Co., Inc. v. Cashio, 302 So.2d 297 (La.1974).

There is no basis for appellant’s argument for the applicability of the doctrine of contra non valentem agere nulla currit praescriptio. Hauserman was not lulled into any trap or false sense of security; the delay in collecting the balance due on the subcontract was attributable to the default of Hauserman’s own subcontractor, Voor-hies, and its own delay in completing the punch list items, and was not caused by the contractor or the contractor’s surety. The record does not support appellant’s assertion that Hauserman was led to believe it would be paid if, after substantial completion, it completely performed the work. The facts are that Hauserman had time to complete the punch list items within the statutory limitation and its failure to do so, and timely file suit, was its own fault. The subcontract was entered into May 12, 1975. Voorhies defaulted. Hauserman took over the casework; and according to the testimony of Mr. Ray Baggs, installation superintendent for Hauserman, the casework was completed April 4, 1978. Notice by owner of acceptance of work (especially to subcontractors) was given May 17,1977 and registered May 27, 1977.

In maintaining the prescription, the trial judge, in his written reasons for judgment indicated the following bases for his holding:

1.) The contract between Roussel-Hart and the State in connection with the renovation of the Earl K. Long Memorial Hospital dated May 9, 1975, and the performance bond in favor of the State were timely recorded in the office of the Clerk and Recorder of Mortgages for the Parish of East Baton Rouge, State of Louisiana, on May 9, 1975.
2.) On May 12, 1975, Roussel-Hart General Contractors entered into a subcontract with Hauserman, Inc., relative to certain work necessary in the prime contract.
3.) Hauserman, Inc., entered into a subcontract with L. H. Voorhies Associates, Inc., to do the work Hauserman had contracted to do with Roussel-Hart.
4.) Voorhies defaulted on its subcontract.
5.) Roussel-Hart called on Hauserman to complete the contract existing between the parties.
6.) The State accepted the prime contract on May 17,1977, and registered the acceptance of the work on May 27, 1977, with the Clerk and Recorder of Mortgages for the Parish of East Baton Rouge, State of Louisiana.
7.) Hauserman completed its work on April 4, 1978 after the acceptance of the work on May 27, 1977.
8.) Hauserman filed its suit for the balance due under its contract with Roussel-Hart on November 29, 1978.
9.) The doctrine of contra non valentem agere nulla currit praescriptio is not applicable here, inasmuch as Hauser-man was not lulled into not filing its suit on this matter by any of the parties hereto, but the delay was attributable to its subcontractor, Voor-hies.
10.) LSA-R.S. 38:2247 provides that the suit on the contractor’s bond must be filed within one year from the registry of the acceptance of the work.
11.) Hauserman’s suit on contract was filed on November 29, 1978, which was more than one year from the date on which the acceptance of the work was registered, May 27, 1977.

We hold, as did the District Court, that the one-year prescription established by LSA-R.S. 38:2247 applies to this action by Hauserman, the subcontractor, against Fidelity and Deposit Company of Maryland, the surety on the public work contractor’s bond. Hence, the District Court properly dismissed the suit as to the surety.

For the reasons assigned, the judgment appealed is affirmed at appellant’s costs.

AFFIRMED.

      . LSA-R.S. 38:2247 provides:
      “Nothing in this Part shall be construed to deprive any person or claimant within the terms of this Part of his right of action on the contractor’s bond which shall accrue at any time after maturity of his claim, which said action must be brought against the surety or the contractor or both within one year from the registry of acceptance of the work or of notice of default of the contractor; except that before any person having a direct contractual relationship with a subcontractor but no contractual relationship with the contractor shall have a right of action against the contractor or the surety on the bond fumished by the contractor, he shall record his claim as provided in R.S. 38:2242 or give written notice to said contractor within forty-five days from the recordation of the notice of acceptance by the owner of the work or notice by the owner of default, stating with substantial accuracy the amount claimed and the name of the party to whom the material was furnished or supplied or for whom the labor or service was done or performed. Such notice shall be served by mailing the same by registered or certified mail, postage prepaid, in an envelope addressed to the contractor at any place he maintains an office in the state of Louisiana.”


text:
    Joyce BURTON v. Marion BURTON.
    No. 13395.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 1980.
    John J. Williams, Jr., Covington, for plaintiff.
    Leonard E. Yokum, Jr., Hammond, for defendant.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   COVINGTON, Judge.

DISMISSAL

The matter having come on to be argued on April 17, 1980, and the appellant having neither filed a brief nor appeared, through counsel or in proper person;

IT IS ORDERED that, pursuant to Rule VII, Section 5(b), the appeal is considered abandoned and is, therefore, dismissed at appellant’s cost.

DISMISSED.


text:
    Joseph RICHEY v. C. Paul PHELPS, Louisiana Department of Corrections.
    No. 13417.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 1980.
    Joseph Richey, in pro. per.
    Judy Pierce, Staff Atty., Baton Rouge, for defendant-appellee C. Paul Phelps, Louisiana Dept, of Corrections.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   COVINGTON, Judge.

DISMISSAL

The matter having come on to be argued on April 17, 1980, and the appellant having neither filed a brief nor appeared, through counsel or in proper person;

IT IS ORDERED that, pursuant to Rule VII, Section 5(b), the appeal is considered abandoned and is, therefore, dismissed at appellant’s cost.

DISMISSED.


text:
    Merrilyn Joy Bernard FAUST v. William B. FAUST, III.
    No. 13552.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 1980.

      Timothy R. Higgins, Amite, for plaintiff.
    Richard C. Macaluso and T. Jay Seale, III, Hammond, for defendant.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   COVINGTON, Judge.

Appellee, wife, sued for a judgment of separation on the grounds of physical and mental cruelty, asking for custody of the three minor children and child support. Appellant, husband, answered and reconvened for a separation, likewise alleging physical and mental cruelty, and asking for custody of the children.

After various intermediate actions irrelevant to the matter for our consideration, on November 7,1979, the ease was heard and a separation was granted on the ground of mutual fault. Custody was awarded to the mother.

Appellant timely filed a motion for a new trial, which was heard on December 7 and denied on December 13. The notice of judgment was mailed to counsel on December 17. On January 22, 1980, on motion of counsel, an order of “devolutive appeal” was signed and it was filed in the office of the Clerk of Court on the next day.

This court, on its own motion, issued an order for the parties to show cause, by briefs, why the appeal should not be dismissed as not being timely filed. In response, the appellant filed a memorandum in which it is claimed that the “devolutive appeal” was perfected under the provisions of LSA-C.C.P. art. 2124 “rather than [under] the provisions of L.S.A.-C.C.P. art. 3942, the suspensive appeal provision for suits for separation and divorce.”

Article 2124 governs only the security required for appeals; it is irrelevant to the issue before us.

The general law governing the delay within which appeals must be taken is set forth in C.C.P. art. 2087, the pertinent portion of which is:

“Except as otherwise provided in this Article or by other law, an appeal . may be taken within sixty days of:
“(3) The date of the mailing of notice of the court’s refusal to grant a timely application for a new trial, if the applicant is entitled to such notice under Article 1914.
U * * *
[Emphasis added]

Comment (b) following this article states, inter alia, that:

“The exception at the beginning of this article avoids conflict with a number of code and statutory provisions providing shorter delays for appeal from certain judgments. These provisions include: . Arts. 3942 and 3943, infra, thirty days to appeal from a judgment of divorce, separation from bed and board, annulment of marriage, and alimony;
C.C.P. art. 3942 provides:
“An appeal from a judgment granting or refusing an annulment of marriage, a separation from bed and board, or a divorce can be taken only within thirty days from the applicable date provided in Article 2087(l)-(3).
“Such an appeal shall suspend the execution of the judgment in so far as the judgment relates to the annulment, separation, or divorce.”
And, C.C.P. art. 3943 states:
“An appeal from a judgment awarding custody of a person or alimony can be taken only within the delay provided in Article 3942.. Such an appeal shall not suspend the execution of the judgment in so far as the judgment relates to custody or alimony.”

Further, the official revision comments following C.C.P. article 3942 staté: “(a) This article is an exception to the general rule set forth in Art. 2087, supra, which provides that an appeal can be taken within ninety [now sixty] days after the dates set forth in Arts. 1914 and 1974, supra.”

Appellant contends that the provisions of C.C.P. art. 3942 are not exclusive. This theory is untenable. The express codal provisions and comments quoted above negate the contention that an appellant may appeal under either the general article 2087 or under the special articles 3942 and 3943.

Post v. Post, 376 So.2d 1275 (La.App. 2 Cir. 1979), cited by appellant, is readily distinguishable from the instant case. In Post, the appeal was timely under C.C.P. art. 3942, but was termed “devolutive”; the court stated that:

“[Ajppeals from judgments of separation, divorce and annulment of marriage are specially provided for in LSA-C.C.P. Art. 3942. Any appeal timely perfected from a judgment of separation, suspends the execution of the judgment, whether it is called a suspensive or a devolutive appeal, under the express terms of LSA-C.C.P. Art. 3942.” [Emphasis added]

In Walker v. Walker, 159 So.2d 344 (La. App. 2 Cir. 1963), the Court said:

“An appeal, any appeal, under the provisions of LSA-C.C.P. Art. 3942, from a judgment granting a divorce, taken within 30 days from the applicable date prescribed in LSA-C.C.P. Art. 2087(l)-(3), suspends the execution of the judgment. . [AJny appeal timely perfected from a judgment granting a divorce operates as a suspensive appeal and suspends the execution of the judgment until the appeal has been finally disposed of, whether it is called a suspensive or a devolutive appeal.”

In Devall v. Devall, 357 So.2d 899 (La. App. 3 Cir. 1978), the court, with Judge Watson (now Justice Watson) the organ, held that:

“Since the judgment relates to a separation, custody, and child support, the appeal had to be perfected within thirty days. LSA-C.C.P. art. 3942 and 3943.”

We, therefore, hold that the instant appeal, filed after the applicable 30-day delay provided in C.C.P. art. 3942, is untimely and must be dismissed.

DISMISSED.

      . Writ of review was granted by the Supreme Court, 358 So.2d 949 (La. 1978), then recalled two months later, 360 So.2d 522 (La. 1978), on joint motion of the parties.


author: CHIASSON, Judge:

text:
    Johnny WINSLOW, Sr. v. WINDHAM POWER LIFTS, INC.
    No. 13184.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 1980.

      Robert J. David, News Orleans, R. Scott Ramsey, Berwick, for plaintiff and appellant.
    Rudolph D. Hargis, Jr. and Philip McMahon, Houma, for defendants Floyd Smith and Travelers Ins. Co.
    Alfred S. Landry, New Iberia, for defendant Heldenbrand, Inc. and Liberty Ins. Co.
    Joseph R. Ward, Jr., New Orleans, Robert L. Morris, Houma, John J. Hainkel, Jr., New Orleans, for defendant Windham Power Lifts, Inc.
    Robert Barrios, Houma, for intervenor Travelers Ins. Co.
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge:

This is a suit for damages for personal injuries arising out of an accident in which Johnny Winslow, Sr., was injured by an exploding tire rim. The defendant is Wind-ham Power Lifts, Inc. After trial on the merits before a jury, a verdict was handed down in favor of defendant. From the judgment of dismissal rendered pursuant thereto, plaintiff has appealed.

Defendant Windham manufactures fork lift trucks. One of these was sold to Hel-denbrand, Inc. The tires on the fork lift were mounted on a two-piece split rim, known as the RH5° rim, manufactured by Firestone Tire and Rubber Company.

Because of a flat tire on one of the front wheels of the fork lift, Heldenbrand called the local service center of Goodyear Tire and Rubber Company. Goodyear sent plaintiff to repair the tire.

Plaintiff testified that he saw the fork lift being driven as he arrived at Helden-brand’s place of business, and drove his truck to the lift. The left front tire was flat. He put a jack under the axle of the fork lift, while straddling the flat tire and the wheel with his legs. He testified that as he straightened up to reach for the jack handle, the rim suddenly separated from the rest of the wheel with great force, striking plaintiff’s left leg, which was between the wheel and the body of the fork lift, and causing the injuries complained of.

Plaintiff claims that there was a defect in the design of the rim; that, regardless of the existence of a defect, the rim was unreasonably dangerous in normal use; and that Windham failed to warn plaintiff of the manner in which the rim could be safely used. It is contended that under any one of these theories, Windham is liable for the injuries suffered by plaintiff.

The jury specifically found against the plaintiff as to the first two claims mentioned above. It further found that Wind-ham had failed to warn plaintiff of “the manner in which the fork lift could be safely used,” but that the failure was not a proximate cause of the injury suffered by plaintiff.

We find that there is no manifest error in any of the foregoing conclusions, based on a careful study of the record herein. However, we further find that a detailed analysis of the record is unnecessary since it is clear that plaintiff assumed the risk of the accident which occurred.

Plaintiff’s own testimony shows that he had been a tire repairman for from 10 to 13 years; that he was familiar with the hazards of working with split rim wheels; and that he was aware that the rim could become unseated, and therefore hazardous, when the vehicle is operated while the tire is flat. He was aware that all risk could be eliminated by removing the valve core from the valve stem of the tire, thereby relieving the air pressure in the tire, and that there could be no rim failure if there were no air pressure in the tire. Plaintiff further testified that he had changed over 500 tires on split rim type wheels, and that he had received safety instructions in handling split rims on more than one occasion.

He saw the fork lift being operated when he arrived to make the repair, and knew that there was pressure in the tire before he began the repair because he heard air escaping from it. Under those circumstances, we think it clear that plaintiff was aware of the risks involved, and assumed those risks when he carelessly straddled the wheel and placed the jack without first relieving the pressure in the tire. He is therefore precluded from recovery.

In view of our holding, we find it unnecessary to consider the other assignments of error made herein by plaintiff.

The judgment appealed from is affirmed, at plaintiff’s cost.

AFFIRMED.


author: PONDER, Judge:

text:
    STATE of Louisiana v. Gary J. MASCARO.
    No. 13377.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 1980.
    Richard E. Chaffin, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee State of Louisiana.
    Randall A. Shipp, Baton Rouge, for defendant-appellant Gary J. Mascaro.
    Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge:

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

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

APPEAL DISMISSED.


author: ELLIS, Judge.

text:
    Luther W. GUY, Jr. v. Namon WARREN.
    No. 13385.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 1980.
    Gary J. Williams, Stahl & Berke, Slidell, for plaintiff, appellee.
    Orlando G. Bendana, Wayne H. Carlton, Jr., New Orleans, for defendant, appellant.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge.

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

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

APPEAL DISMISSED.


author: ELLIS, Judge:

text:
    James E. DUVIC et al. v. BATON ROUGE LUMBER COMPANY et al.
    No. 13290.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 1980.

      Neil H. Mixon, Jr., Baton Rouge, for plaintiffs-appellants James E. Duvic, Individually & head & master, and Shelia A. Duvic.
    Daniel R. Atkinson, Baton Rouge, for defendants-appellees Baton Rouge Lumber Co., Inc., Nimrod P. Gross and Commercial Union Ins. Co.
    Before ELLIS, PONDER and WATKINS, JJ.
   ELLIS, Judge:

This is a suit for damages for personal injuries arising out of an accident between an automobile owned by James E. Duvic and operated by his wife, Shelia A. Duvic; and a flatbed tractor trailer owned by Baton Rouge Lumber Company, Inc., operated by Nimrod P. Gross and insured by Commercial Union Insurance Company. After trial on the merits, judgment was rendered in favor of defendants, rejecting plaintiffs’ demands, and they have appealed.

Mrs. Duvic was driving west on Highway 37, a four-lane divided road, with a narrow median separating the two eastbound lanes from the two westbound lanes. The tractor trailer, which had been heading east, made a U-turn through the median and into the westbound lanes of Highway 37. Mrs. Du-vie testified that she saw the truck and slowed her vehicle somewhat. She stated that it drove entirely into the right-hand westbound lane. She intended to pass the truck, but, as she did so, she stated that it began to pull into the inside lane. She applied her brakes, but was unable to avoid the accident.

Mr. Gross testified that he made the U-turn, intending to move into the inside westbound lane so as to make a left turn some blocks to the west. It was his testimony that he never got entirely into the outside lane, but made one continuous turn, intending to straighten out in the inside lane.

Of the three independent eye witnesses who testified, two corroborated Mrs. Du-vic’s story and one stated that the truck turned as indicated by Mr. Gross. However, all three witnesses stated that there was no way for Mrs. Duvic to avoid the accident.

The trial judge found Mr. Gross negligent in entering the westbound lanes when it was not safe to do so, and also found Mrs. Duvic contributorily negligent in failing to stop in time to avoid the accident.

We think the factual conclusions of the trial judge were clearly wrong. Two of the three independent eyewitnesses testified that the truck was entirely in the right-hand lane before it moved back to the left. This was also the testimony of the plaintiff. The third independent eyewitness gave testimony so completely at variance with the other evidence as to be unworthy of belief.

We think the record is clear that the truck was, at one point, entirely in the right-hand lane. Whether the driver immediately moved back to the left lane, or remained for some time in the right-hand lane is not material. Once he was in the right-hand lane, he had a duty not to change lanes until it was reasonably safe to do so. Mrs. Duvic had a right to assume that the truck would remain in that lane until she had completed her passing maneuver.

Mr. Gross failed in his duty when he moved to the left-hand lane without checking to see if it was safe to do so. It was his negligence in this respect which was the sole cause of the accident. Mrs. Duvic was not required to anticipate this maneuver, and was unable to avoid the accident which ensued. . We find no negligence on her part.

At the time of the accident, Mrs. Duvic was about five months pregnant. Prior to that time, she had had two disc operations on her low back and had chronic back complaints. Eventually, Mrs. Duvic was delivered of a normal child. She testified that she was concerned for the well-being of her unborn child because of the accident. Her doctors testified that the accident had no discernible effect on the course of her pregnancy or on the condition of her back, although both of them testified that it would not be unreasonable to expect some exacerbation of her back pain because of the accident.

Mrs. Duvic testified that her back was worse after the accident than before, and the pain much more severe, and that she has a problem with leg pains and loss of use of her right leg which she did not have prior to the accident. No specific medical charges resulting from the accident were proven.

Considering the foregoing, we feel that the sum of $5,000.00 will adequately compensate Mrs. Duvic for her personal injuries. Mr. Duvic proved special damages arising out of repairs to his automobile to-talling $233.00.

The judgment appealed from is reversed, and there will be judgment in favor of Mrs. Shelia A. Duvic and against the defendants, Baton Rouge Lumber Company, Inc., Nimrod P. Gross and Commercial Union Insurance Company, in solido, in the sum of $5,000.00, together with legal interest from date of judicial demand until paid. There will further be judgment in favor of James E. Duvic and against the said defendants, in solido, for $233.00, together with legal interest from date of judicial demand until paid. All costs shall be paid by defendants.

REVERSED AND RENDERED.


author: PONDER, Judge.

text:
    Harold MOSTKOFF d/b/a Baton Rouge Restaurant Supply v. Sam GRAZIANO d/b/a Sammy’s Seafood and Steaks.
    No. 13317.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 1980.
    Rehearing Denied July 7, 1980.
    Harvey H. Posner and Davis A. Guey-mard, Baton Rouge, for plaintiff.
    Leonard E. Yokum, Jr., Hammond, for defendant.
    Before ELLIS, PONDER and WATKINS, JJ.
   PONDER, Judge.

Plaintiff filed a suit on open account. Defendant reconvened for damages. Without assigning reasons the court dismissed both the main and the reconventional demand. The issue is sufficiency of the evidence.

We reverse and render on the main, demand and affirm on the reconventional demand.

Plaintiff sold and delivered to defendant restaurant equipment and supplies. Defendant paid $26,981.09, leaving an unpaid balance of $4,861.04. Defendant did not deny the amount owed nor that the items were delivered.

Defendant claims he did not pay because certain items were defective, unsatisfactory and not as ordered. Some chairs were unfinished and some table bases were damaged. A stove arrived that was not as ordered. Defendant had to assemble the tables. Furthermore, plaintiff had agreed to supply all items needed at 10% above cost; plaintiff failed to do so and defendant had to purchase some items at increased prices. Defendant complained that some chairs came in incomplete; however, he did not deny that the backs of the unfinished chairs arrived as soon as the factory could produce them and that all he had to do was to tack the backs onto the chairs, a minor task.

The damaged table bases were replaced. Plaintiff offered to replace a stove that was not as had been ordered but was told by defendant that he would keep the 10 burner stove and buy a separate griddle.

It was understood that in order to get the special price of 10% above wholesale, defendant would be responsible for assembling the tables. Yet one of defendant’s primary complaints is that he had to pay a crew of men to assemble these items.

Defendant’s testimony about warranties was vague, indefinite and contradictory as was his testimony concerning what was to be supplied by plaintiff. Plaintiff testified that there were certain items he could not furnish defendant because he did not represent the manufacturers, and that he had so advised the defendant. Furthermore, defendant failed entirely to prove any increased cost.

Both the manufacturer’s representative and plaintiff testified that they visited defendant’s place of business frequently; yet defendant never expressed any complaints about the quality of the merchandise until suit was filed. Nor did defendant complain about having to go to other dealers to purchase the items plaintiff could not acquire for him.

We find the weight of the evidence is clearly and definitely on the side of plaintiff. The trial court was in error in finding for the defendant on the main demand. The trial court, however, was correct in rejecting the reconventional demand.

Therefore, there is now judgment in favor of plaintiff and against the defendant in the amount of $4,861.04 together with interest thereon from date of judicial demand and all costs. There is further judgment rejecting the reconventional demand. All costs are assessed against the defendant.

REVERSED IN PART AND RENDERED, AFFIRMED IN PART.


author: WATKINS, Judge.

text:
    John DICKERSON v. Jimmy TAYLOR et al.
    No. 13292.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 1980.
    Rehearing Denied July 7, 1980.

      Charles B. W. Palmer, Amite, for plaintiff.
    Tom H. Matheny and Charles G. Walker, Hammond, for defendants.
    Before ELLIS, PONDER and WATKINS, JJ.
   WATKINS, Judge.

Appellant, John Dickerson, seeks review of the trial court’s judgment awarding a 12% penalty on past due workmen’s compensation payments. It is appellant’s position that this penalty should be computed on all compensation payments which might be due in the future based on his life expectancy. Appellant also objects to the trial judge’s decision denying acceleration of workmen’s compensation payments pursuant to LSA-R.S. 23:1333.

The initial decision in this case was rendered November 2, 1978. In that decision, appellant was found to be totally and permanently disabled, and judgment was signed awarding Dickerson $85.00 per week during his total disability, a penalty of 12% and attorney’s fees plus interest. Thereafter, counsel for appellant filed another petition wherein he sought to have the compensation payments accelerated and the 12% penalty applied to all payments which might become due based on Dickerson’s life expectancy. Both of these demands were denied in a judgment rendered August 31, 1979. This appeal ensued. We affirm.

We find no merit in appellant’s argument that it was reversible error for the trial judge to render a decision, subsequent to the November 2,1978 decision, decreeing the 12% penalty to be due only on past due compensation payments. The penalty provision requires the employer to pay penalties and attorney’s fees only on the overdue sums and future payments are not overdue. Kilbourne v. Armstrong, 351 So.2d 802 (La. App. 1st Cir. 1977). Although the November 2 decision may have been ambiguous as to the amount on which the penalty was to be assessed, appellant cannot successfully seek an interpretation of that decision that is unsupported by statutory authority and contrary to the jurisprudence.

Neither do we find merit in appellant’s contention that compensation payments should be accelerated pursuant to LSA-R.S. 23:1333 due to appellee’s alleged failure to make compensation payments for six (6) successive installments. We find that the payments did not lapse for 6 successive installments and that the trial judge properly denied application of LSA-R.S. 23:1333. Dickerson’s employer paid these installments and marked each as payment for workmen’s compensation. Instead of recognizing these installments as compensation sums, appellant’s counsel chose to apply them to the entire amount of the judgment of November 2, 1978, including penalty and attorney’s fees as determined and computed by appellant’s counsel. LSA-C.C. art. 2163 provides that:

“The debtor of several debts has a right to declare, when he makes a payment, what debt he means to discharge.”

Dickerson’s employer did make such a declaration. Therefore, the payments cannot be imputed to back due amounts and a 6-installment arrears was not created.

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

AFFIRMED.


text:
    Audrey L. STERNBERG v. Edward D. SMITH.
    No. 13273.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 1980.
    Ralph W. Brewer, Baton Rouge, for plaintiff-appellant Audrey L. Sternberg.
    Charles N. Malone, Baton Rouge, for defendant-appellee Edward D. Smith.
    Before ELLIS, EDWARDS and PONDER, JJ.
   ELLIS, Judge:

In this proceeding, Edward D. Smith seeks cancellation of a judgment obtained against him by Audrey L. Sternberg. From a judgment ordering the cancellation as prayed for, Mrs. Sternberg has appealed.

On May 20,1971, Mrs. Sternberg obtained a money judgment against Mr. Smith, which was inscribed in the mortgage records of East Baton Rouge Parish on the same day. At the time of the judgment, Mr. Smith was the owner of Lots 36,37 and 38 of Square 23, Bank Addition, bearing municipal number 1948 71st Avenue. Garnishment proceedings were thereafter instituted against the Missouri-Pacific Railroad Company, and a judgment against the garnishee was signed on July 19, 1971.

On September 10, 1971, Mr. Smith was adjudicated a bankrupt. Neither the judgment nor the debt owed Mrs. Sternberg is listed in the schedules of debt filed in the bankruptcy proceeding. Mr. Smith received his discharge in bankruptcy on March 15, 1972.

Mr. Smith brought this rule to cancel the judgment under the provisions of R.S. 9:5166. Mrs. Sternberg is defending on two bases: first, that R.S. 9:5166 is unconstitutional; and second, that the debt was not listed in the schedules of the bankruptcy proceeding, and was therefore not discharged on March 15, 1972.

The trial judge found R.S. 9:5166 to be constitutional, but granted judgment to Mr. Smith on the ground that the judgment was without effect under Section 67(a) of the Bankruptcy Act.

R.S. 9:5166 provides as follows:

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

It is obvious that the foregoing provision applies only in a case in which the judgment debt has been discharged in bankruptcy. We must, therefore, first determine if Mrs. Sternberg’s judgment was affected by the discharge in bankruptcy.

It cannot be disputed that the judgment was not scheduled. However, Mr. Smith contends that both Mrs. Sternberg and her attorney had notice of the bankruptcy proceedings and the judgment is therefore subject to discharge. 11 U.S.C.A. § 523(a). There is in the record a copy of an “Order Staying Garnishment Proceedings Against Bankrupt.” The order purports to stay all garnishment proceedings herein, and Mrs. Sternberg and her attorney are named as persons enjoined. However, the order is not marked as filed, is not a properly certified copy or an original, and there is no showing that any service was ever made on any of the parties named therein. The order was not admitted into evidence, but the trial judge remarked that, since it was in the record, he would take judicial notice of it.

There is no provision in Louisiana law for taking judicial notice of proceedings in other courts. See Articles 1391-1397, Code of Civil Procedure; Mattox v. American Indemnity Company, 259 So.2d 79 (La. App. 4th Cir. 1972). Article 1395 requires that such records “may be evidenced by a copy attested by the officer having legal custody of the record. . . . ” This was not done in this case and the judge should not have considered the document. There is no other evidence offered to show actual notice of the bankruptcy proceeding to plaintiff.

On the face of the record, it would appear that plaintiff’s debt would not have been discharged on May 15, 1972, because not properly scheduled by Mr. Smith, and because there is no showing of actual knowledge of the proceeding on the part of Mrs. Sternberg. Section 67(a) of the Bankruptcy Act, on which the trial judge relied for his decision, would not apply unless the debt were properly discharged.

However, we think the interests of justice would best be served by a remand. Ordinarily, when a master is easily susceptible of proof, and such proof is not offered, we will not remand a case for production thereof. In this case, however, it would appear that defendant may have been misled into believing that no further proof of actual notice was necessary when the trial judge took judicial notice of the uncertified copy of the stay order which had been filed in the record. If, in fact, such an order was served on plaintiff, then the fact of actual notice would be clearly established, and we shall remand the case to give defendant the opportunity to prove that fact.

The judgment appealed from is therefore reversed and set aside, and the case remanded to the trial court for further proceedings not inconsistent herewith. Defendant shall pay all costs of this appeal, with all other costs to await final determination of this case on its merits.

REVERSED AND REMANDED.