author: CALOGERO, Justice. MARCUS, Justice

text:
    STATE of Louisiana v. Cedric LACOUR, Rene Perkins and Kip Franklin.
    No. 81-K-0750.
    Supreme Court of Louisiana.
    May 18, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns and Reginald T. Blades, Asst. Dist. Attys., for plaintiff-relator.
    Craig Cowait and Alvin Taylor of Orleans Indigent Defender Program, New Orleans, for defendant-respondent.
   CALOGERO, Justice.

Respondents Cedric Lacour, Rene Perkins and Kip Franklin were arrested in Orleans Parish for the crime of armed robbery, a violation of R.S. 14:64. All three were sixteen years old at the time of their arrest, which took place the same day of the crime. A magistrate of the Orleans Parish District Court set bail at $40,000.00 for each shortly after the arrest. The following day counsel for respondents filed motions seeking to have their custody transferred from the criminal district court to juvenile court, grounding his motion on the holding of this Court in State ex rel. Coco, 363 So.2d 207 (La.1978). The judge ad hoc granted the motion to transfer custody but stayed the transfer to allow the state time to file a writ application in this Court. This Court granted the writs and extended the stay until further orders of the Court. 397 So.2d 810 (La.1981). After writs had been granted, the district attorney refused charges against Cedric Lacour and Kip Franklin and filed a bail of information against Rene Perkins.

The matter presented by the writ application concerns which court has jurisdiction over a sixteen year old arrested for armed robbery but against whom a bill of information has not yet been filed. While it might seem that the filing of the bill of information against Perkins and the refusing of charges against Lacour and Franklin would render the case moot, we shall consider the issue nevertheless. Should we decline the issue because it is now moot, the issue could permanently escape our consideration. This case presents a classic example of a situation which could be “capable of repetition, yet evading review.” Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976); Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Moore v. Ogilvie, 394 U.S. 814, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969); Southern Pacific Terminal Co. v. I. C. C., 219 U.S. 498, 31 S.Ct. 279, 55 L.Ed. 310 (1911).

In State ex rel. Coco, 363 So.2d 207 (La. 1978), we had to determine whether criminal district court or juvenile court had jurisdiction over a sixteen year old who was incarcerated for first degree murder and aggravated rape. We determined that jurisdiction over the juvenile vested in the criminal district court only after the juvenile had been charged by grand jury indictment or a bill of information. We predicated our determination as to the time jurisdiction vested in the criminal district court upon our interpretation and application of Article V, Section 19, of the Louisiana Constitution of 1974 and R.S. 13:1570 as those laws read at the timé of the alleged offenses.

The pertinent Constitutional provision regarding juveniles at the time of the Coco decision read as follows:

“Except for a person fifteen years of age or older who is alleged to have committed a capital offense or attempted aggravated rape, the determination of guilt or innocence, the detention, and the custody of a person who is alleged to have committed a crime prior to his seventeenth birthday shall be exclusively pursuant to special juvenile procedures which shall be provided by law. However, by law enacted by two-thirds of the elected members of each house, the legislature may (1) lower the maximum ages of persons to whom juvenile procedures would apply and (2) establish a procedure by which the court of original jurisdiction may waive , such special juvenile procedures in order that adult procedures would apply in individual cases.” La. Const. Art. V, § 19 (before amendment in 1979). (emphasis provided.)

R.S. 13:1570 (in 1978) provided that the juvenile court should have exclusive original jurisdiction in proceedings:

“A. Concerning any child whose domicile is within the parish or who is found within the parish:
$ sfc s{c sj« % sic
(5) Who violates any law or ordinance, except a child who, after having become fifteen years of age, is charged with having committed a capital crime, or a crime defined by any law defining attempted aggravated rape; provided that once such a child has been actually charged with a capital crime, armed robbery, or attempted aggravated rape, the district court shall retain jurisdiction over his case, even though the child pleads guilty to, or is convicted of, a lesser included offense; and a plea to, or conviction of, a lesser included offense shall not revest the juvenile court with jurisdiction of such a child.” (emphasis provided.)

We held that the “charged” of R.S. 13:1570 and the “alleged to have committed” of the Constitution meant formally charged with a crime by bill of information or grand jury indictment. Subsequent to our decision in Coco, the people of the state approved a change in the Constitution which allowed the legislature by a two-thirds vote to provide “that special juvenile procedures shall not apply to juveniles arrested for having committed” certain enumerated crimes, among them armed robbery. La.Const. Art. 5, § 19, as amended in 1979.

Subsequent to this constitutional amendment, the Legislature enacted Acts 1980, No. 482, so that R.S. 13:1570 now reads in pertinent part:

“Except as otherwise provided herein, the court [juvenile] shall have exclusive original jurisdiction in proceedings:
A. Concerning any child whose domicile is within the parish or who is found within the parish:
(5) Who violates any law or ordinance, except a child who, after having become fifteen years of age or older is charged with having committed first degree murder, second degree murder, manslaughter, aggravated rape, or a person who, after becoming sixteen years of age or older, is charged with having committed armed robbery, aggravated burglary, or aggravated kidnapping. Once such a child has been charged with having committed any offense listed in this Paragraph, the district court shall retain jurisdiction over his case, even though the child pleads guilty to, or is convicted of, a lesser included offense, and a plea to, or conviction of, a lesser included offense shall not revest the court exercising juvenile jurisdiction of such a child.” (emphasis provided.)

Although the Constitution specifically authorized the Legislature to provide for district court jurisdiction for juveniles “arrested for” certain crimes, the Legislature instead retained the language of the former version of the statute and placed only juveniles “charged” with certain crimes within the jurisdiction of the district court. Except for those of a certain age and “charged” with certain crimes, juveniles fall within the jurisdiction of the juvenile court.

Under our interpretation of “charged” in Coco, until a juvenile is formally charged by bill of information or grand jury indictment he is within the juvenile justice system. By using the same term, “charged”, for the vesting of jurisdiction in the district court, the Legislature has effected no change in the time that a juvenile falls within the jurisdiction of the district courts. Until a bill of information is filed or a grand jury indictment is returned against the juvenile, he is subject to juvenile rather than adult procedures.

Decree

For the foregoing reasons, the ruling of the trial judge that defendant belonged in the juvenile justice system is affirmed.

AFFIRMED.

MARCUS, J., dissents and assigns reasons.

MARCUS, Justice

(dissenting).

La. Code Crim. P. art. 228 provides for the booking of an arrested person. The article states in pertinent part: “A person is booked by an entry, in a book kept for that purpose, showing his name and address, the offense charged against him, by whom he was arrested, . .. . ” (Emphasis added.) Therefore, when the legislature passed the act in 1978 (La. R.S. 13:1570 A(5)), providing that “[w]ho violates any law or ordinance, except a child who, after having become fifteen years of age, is charged with having committed a capital crime, or a crime defined by any law defining attempted aggravated rape; ...” the legislature must have intended that charged refers to the time of booking of the arrested person and not to the time defendant was formally accused by grand jury indictment or information. (Emphasis added.) Accordingly, I respectfully dissent.

      . This is the third time we have been asked to consider juveniles in similar situations: State v. Pierre, and James, 392 So.2d 1071 (La.1980), concerned two sixteen year olds arrested for armed robbery who had been ordered transferred from the adult system to the juvenile system. We granted the state’s application for an extension of the order staying the transfer. Pending the application for writs, charges were refused against one juvenile and a bill of information filed against the other. In State v. Bauman, Mahoney and Roben, 397 So.2d 797 (La.1981), we declined to extend an order staying the transfer of three sixteen year old youths also arrested for armed robbery to the juvenile system. All applications have originated from Orleans Parish where there is a time lag between arrest and the reviewing of the case by the District Attorney to determine whether to accept or refuse charges. To grant writs and have the issue mooted gives no direction to the courts below.

      . The full text of the constitutional provision is as follows:
      “Section 19. The determination of guilt or innocence, the detention, and the custody of a person who is alleged to have committed a crime prior to his seventeenth birthday shall be pursuant to special juvenile procedures which shall be provided by law. However, the legislature may (1) by a two-thirds vote of the elected members of each house provide that special juvenile procedures shall not apply to juveniles arrested for having committed first or second degree murder, manslaughter, aggravated rape, armed robbery, aggravated burglary or aggravated kidnapping, and (2) by two-thirds vote of the elected members of each house lower the maximum ages of persons to whom juvenile procedures shall apply, and (3) by two-thirds vote of the elected members of each house establish a procedure by which the court of original jurisdiction may waive special juvenile procedures in order that adult procedures shall apply in individual cases. The legislature, by a majority of the elected members of each house, shall make special provisions for detention and custody of juveniles who are subject to the jurisdiction of the district court pending determination of guilt or innocence.” (emphasis provided.)

      . La. Code Crim. P. art. 383 provides in pertinent part: “An indictment is a written accusation of a crime made by a grand jury.” Article 384 provides in pertinent part: “An information is a written accusation of crime made by the district attorney and signed by him.”


source: Caselaw Access Project

author: WATKINS, Judge.

license: Public Domain

text:
    Pete HIRSCHEY v. Sherman A. BERNARD.
    No. 13476.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 1980.
    See also, La.App., 398 So.2d 1134.
    Sam 0. Buckley, Baton Rouge, for appellant.
    MacAllyan J. Achee, Baton Rouge, for appellee.
    Before EDWARDS, LEAR and WATKINS, JJ.
   WATKINS, Judge.

Appellee, Pete Hirschey, filed a motion to dismiss the suspensive appeal filed herein by appellant, Sherman A. Bernard, for the reason that appellant’s motion for suspen-sive appeal was not filed within the delay authorized by law. A show cause order was issued by this Court to which appellant has not responded.

This is a motion to dismiss an unlodged appeal. Since the record is not available, and appellant has not responded, we assume the facts as represented by appellee are accurate.

Judgment in the trial court was read and signed on November 28, 1979. Appellant filed a motion for a new trial on December 6, 1979, and this motion was denied by the trial court on December 7, 1979. Appellant later filed a Motion for Appeal, both suspensive and devolutive, on January 28, 1980. The order granting the appeal was also signed on January 28, 1980. No written request for Notice of Judgment was filed by defendant-appellant as provided in LSA-C.C.P. art. 1914.

The delay within which to take a suspen-sive appeal is provided for in LSA-C.C.P. art. 2123 as follows:

“Except as otherwise provided by law, an appeal that suspends the effect or the execution of an appealable order or judgment may be taken, and the security therefor furnished, only within thirty days of:
“(1) The expiration of the delay for applying for a new trial, as provided by Article 1974, if no application has been filed timely;
“(2) The court’s refusal to grant a timely application for a new trial, if the applicant is not entitled to notice of such refusal under Article 1914; or
“(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.”

Since appellant was not entitled to notice under LSA-C.C.P. art. 1914, the 30 day period within which to perfect a suspensive appeal commenced to run December 7,1979, the date of the denial by the trial court of appellant’s motion for a new trial, and expired on January 7, 1980. The order of appeal was not granted until January 28, 1980. Clearly appellant has not met the requirements of law with regard to a sus-pensive appeal and we are without jurisdiction to hear his appeal suspensively. See Willie v. Otasco, 347 So.2d 1215 (La.App. 1st Cir. 1977).

As the order of appeal granted appellant a suspensive and devolutive appeal, and was granted within the delay allowed for a devolutive appeal, the appellant’s right to a devolutive appeal has been preserved. LSA-C.C.P. art. 2087.

For the above reasons, the motion to dismiss is granted insofar as it seeks dismissal of the suspensive appeal. We retain jurisdiction to review this matter as a devolutive appeal.

MOTION TO DISMISS SUSPENSIVE APPEAL GRANTED. DEVOLUTIVE APPEAL MAINTAINED.


author: PONDER, Judge.

text:
    Pete HIRSCHEY v. Sherman A. BERNARD.
    No. 13638.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 6, 1980.
    Writ Granted in part and Denied in part Feb. 13,1981.
    See also La.App., 398 So.2d 1133.

      MacAllyn J. Achee, Baton Rouge, for plaintiff-appellee Pete Hirschey.
    Samuel 0. Buckley, River Ridge, for defendant-appellant Sherman A. Bernard.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

This is a suit in contract for costs of “extras” of a building contract. The trial court found for plaintiff and defendant appealed.

The issues are the validity of the exception of prematurity; sufficiency of the proof of the “extras”; and possibility of double recovery.

We amend and affirm.

Plaintiff, Pete Hirschey, was an assignee of a building contract between defendant, Sherman A. Bernard, and builder, Kenneth Hirschey. In order to obtain financing, defendant signed and recorded a “Builder’s Contract” as both owner and builder. He then sublet the entire contract for $85,-005.61. During the construction various changes necessitating some extra labor and material were made. According to plaintiff, the cost of these “extras” raised the price to $97,113.08. Acknowledging liability for some extras, defendant paid a total of $90,000.59 but denied liability for the remaining amount.

Defendant filed an exception of “Prematurity and No Right of Action”. The substance of the exception was that a clear lien certificate on the contract was a condition precedent to final payment. The trial court overruled the exception. We agree. The conditions of the contract were substantially met prior to the filing of suit. Defendant himself as owner had filed an acceptance. In fact no one had filed a lien.

The contractor has the burden of proof to show that the owner authorized the extra work and materials, that they were furnished and their value. LSA-C.C. Art. 2763, Master Maintenance Engineering Inc. v. McManus, 292 So.2d 284 (La.App. 1st Cir. 1974).

The evidence supports the conclusion that plaintiff met this burden of proof; we find no error.

We believe defendant’s concern that he may face double liability because of his status as both owner and general contractor has merit. Of the $6,078.71 still owing on the construction price, $4,696.78 is due individual subcontractors. He is therefore authorized to pay the judgment as follows:

1. Kenneth Hirschey and Challenge Cabinets $1,656.72
2. Kenneth Hirschey and Alex Sheet Metal 89.00
3. Kenneth Hirschey and Moore's Plumbing 1,230.00
4. Kenneth Hirschey and Sutter Tile 116.48
5. Kenneth Hirschey and Shell Boze 100.00
6. Kenneth Hirschey and May Bros. 401.50
7. Kenneth Hirschey and A and E Electric 1,103.08
8. Kenneth Hirschey 1,381.93

Judicial interest is to be applied to each sum.

For the above reasons, the judgment of the trial court is amended and as amended is affirmed at appellant’s costs.

AMENDED AND AFFIRMED.


author: WATKINS, Judge. WATKINS, Judge.

text:
    Doyle MIZELL et al. v. The STATE of Louisiana, Through the LOUISIANA DEPARTMENT OF HIGHWAYS et al.
    No. 13425.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 6, 1980.
    On Rehearing March 2, 1981.

      L. D. Sledge and Randy Shipp, Baton Rouge, for plaintiff-appellant.
    William J. Doran, Jr. and Marshall W. Wroten, Raton Rouge, for Hwy. Dept.
    W. Arthur Abercrombie, Jr., Ben Louis Day, Baton Rouge, Richard A. Chopin, New Orleans, James W. Hailey, Jr., Metairie, France W. Watts, III, Franklinton, Duncan S. Kemp, III, Dist. Atty., Tangipahoa Parish, Amite, Lawrence J. Ernst, New Orleans, for defendants-appellees.
    R. L. Booty, pro. per.
    Jesse LaGarde, Amite, for La.Const.
    Before ELLIS, COLE and WATKINS, JJ.
   WATKINS, Judge.

This action was brought to obtain damages for severe injuries sustained by Brenda Mizell, Doyle Mizell, and Willie Hodges in a one car accident in which a 1967 Pontiac Bonneville four-door car struck the east bridge abutment of the Tangipahoa River Bridge, east of Amite, Louisiana. Judgment was rendered against the Department of Transportation and Development, State of Louisiana, (hereinafter referred to as “DOTD”) in the following amounts for the following plaintiffs:

Willie Hodges $483,706.50
Doyle Mizell 358,944.05
Brenda Mizell 21,019.94
$863,670.49

There were several other defendants, most notably, Travelers Insurance Company, motor vehicle liability insurer of the DOTD’s dump trucks (which were alleged to have tracked asphalt on the highway). Travelers was dismissed as a party defendant on a motion for a so-called “directed verdict” (the case was tried without a jury), after plaintiffs’ presentation of their case on trial on the merits. Numerous third party demands were filed. With the exceptions set forth above, with regard to the DOTD and Travelers, and other exceptions, no judgment was rendered either in favor of or against the numerous defendants, and similarly, most of the third party demands were not specifically decided by judgment. No appeals regarding these exceptions and incidental demands have been taken. Thus, we consider the claims of the plaintiffs in chief only, and those only with regard to the judgment in favor of plaintiffs against the DOTD and in favor of Travelers against plaintiffs.

R. L. Booty and C. M. Smoak under two business names operated an asphalt plant in 1973, 1974 and 1975 near the Tangipahoa River Bridge, which runs roughly east and west. Finally the plant was shut down because of insolvency or bankruptcy. The plant had an access road that entered the highway (# 16) from the north, 150 feet east of the bridge. During 1973, 1974 and 1975, several individuals and companies delivered asphalt to the plant, and the DOTD and several other users of asphalt picked up asphalt at the plant. The apparatus used to place asphalt on the trucks leaked, and asphalt became deposited on the ground, which the trucks, both deliverers and receivers, picked up on their tires and deposited in lumps on the highway as they left the plant. Except where the entrance was located, where asphalt was deposited on both sides, asphalt was generally tracked on the eastbound lane going toward the east, and in the westbound lane going toward the bridge (the west). Asphalt extended in the westbound lane at least as far west as the bridge abutment.

On the morning of January 31, 1976, Brenda Mizell, with her husband Doyle Mi-zell, drove from Denham Springs, where they lived, to Varnado, where her mother lived, to pick up Willie Hodges, her brother, who had been in the hospital. They crossed without incident the section of highway in question going east. That afternoon they left in the Pontiac Bonneville to go back to Denham Springs. Brenda Mizell drove; her husband sat on the right front; her brother Willie Hodges sat in the right rear. Also in the car was the Mizells’ son, who was a child. It was raining and some water was on the road. As they approached the Tangipahoa River, the car went into a skid, and spun around a little more than ninety degrees, the side of the car striking the left bridge abutment. Brenda, Doyle and Willie sustained severe injuries.

The plaintiffs introduced two experts, John W. Lipscomb, Jr., and Dr. Jack B. Humphreys, who testified that the car probably went into a skid as a result of partial hydroplaning when it encountered the asphalt on the highway, and that the car could have hit the abutment turned at the angle at which it was found, after going into a skid at the point the highway passed the asphalt plant entrance 150 feet east of the bridge. They testified that had the car gone into a skid farther from the bridge, in all likelihood it would have come to a stop before striking the abutment. The defendant, DOTD, introduced an expert, Dr. Don L. Ivey, who testified that for the vehicle to have spun as much as it did, it would have had to have gone into a skid more than 150 feet from the bridge, before it encountered the asphalt. The testimony of Dr. Ivey was based upon a computer programming of a cornering situation, rather than a skid situation. Although Dr. Ivey testified that this method of programming was more likely to produce a result more favorable to plaintiff, this opinion was contradicted by one of plaintiff’s experts who testified that the use of a cornering situation was less favorable to the plaintiffs position. Apparently the trial court concluded that Dr. Ivey’s testimony in this regard should not be given much weight since the factual situation in this case dealt with skidding. The trial court, therefore, elected not to follow Dr. Ivey’s testimony but, rather, accepted the testimony of plaintiffs’ experts. In that evaluation of the expert testimony, we find no abuse of the trial court’s discretion. Furthermore, we think that it is entirely proper for us to consider lay testimony as to when the car went into a skid, and to accept it over Dr. Ivey’s testimony, especially in view of the fact the expert testimony is in conflict. See State Department of Highways v. Moity, 276 So.2d 770 (La.App. 3rd Cir. 1973).

Brenda Mizell could not remember the point where the car went into a skid. Doyle Mizell was asleep on the front seat, and awoke only after the car had gone out of control. However, on direct testimony, Willie Hodges, who was awake at the time, testified the car encountered lumps on the highway near the bridge and all of a sudden went “berserk”, completely out of control. He stated that this skid started around the little road that led to the right to the asphalt plant. Under cross examination, he stated, further clarifying his testimony, that the skid started, he would say, within 100 feet of the bridge. Thus, eyewitness testimony directly links the skid with the lumps of asphalt on the highway. Willie Hodges’ testimony is internally consistent and unrebutted.

Until August of 1975, Brenda Mizell drove from Denham Springs to Varnado once or twice a month. She took the highway in question a considerable part of the time. The asphalt lumps should have been on the highway during this period. However, there is no clear testimony that she was conscious of the presence of the asphalt on these earlier trips, or that she was aware, or that she should have been aware, of the danger it posed as a result of her past experience. Thus contributory negligence has not been established or' proved.

Reduced to simplest terms, three acts of negligence were alleged on the part of the DOTD: (1) permitting DOTD’s trucks to deposit asphalt on the highway, (2) failing to resurface the highway or otherwise to remove the effects of the asphalt deposited on the highway, and (3) failing to post signs warning of the dangerous condition of the highway, which officials of the DOTD knew was slippery when wet as a result of the deposited asphalt. The question of Traveler’s liability turned upon liability of the DOTD under (1), Travelers being liability insurer of the DOTD’s dump trucks. The trial court held that liability did not exist under (1), as many trucks deposited asphalt on the highway, of which the DOTD’s trucks represented only a part, albeit a substantial part, and there was no proof of the amount deposited by each.

We find the DOTD liable on grounds (2) and (3) and reverse the awarding of a so-called “directed verdict” for Travelers, and remand to permit Travelers to present its defense.

The state was clearly negligent in failing to resurface the highway or post signs warning of the existing danger. The record discloses correspondence engaged in by M. K. Johnston, Assistant District Engineer of the DOTD, to Booty and Smoak and to legal counsel for the then Department of Highways in which he discusses Johnston’s knowledge that asphalt from the plant had been deposited on the highway and threatens and recommends legal action. This correspondence was engaged in before January 31,1976, the date of the accident. Also, Mr. Johnston himself testified he knew of the dangerous situation of the road before that date. Yet, nothing was done. Not even a warning sign was posted concerning the slippery condition of the road. The only sign was a plant entrance sign. Mr. Johnston admitted the DOTD could put up signs within a couple of days of the time it became aware of a dangerous condition. The highway, but not the bridge, was resurfaced after the accident, the resurfacing having begun August 2, 1977, and having been completed October 20, 1977.

Thus, the DOTD was negligent in not resurfacing the highway or posting warning signs. It was also negligent in tracking asphalt on the highway from its trucks. The testimony reveals that at least half of the asphalt deposited was deposited by DOTD dump trucks. This asphalt was picked up by the wheels of the trucks, and deposited in lumps on the surface of the highway. If there had been but one occasion on which DOTD trucks deposited asphalt on the highway, we might find that there was no actionable negligence, but there were repeated acts of depositing asphalt on the highway over a period of several years. To fail to do something to eliminate this tracking procedure was clearly actionable negligence on the part of the DOTD and almost amounts to an intentional tort.

We hold that proof has been established of two types of negligence, failure to remove the asphalt from the highway or to resurface the highway, and failure to post signs warning of the dangerous condition of the highway, and strong evidence has been presented of a third type of negligence, repeated tracking of asphalt on the highway, and that all these were or could have been proximate causes of the accident sued upon. An injury may have more than one proximate cause. Falgout v. Younger, 192 So. 706 (La.App. 1st Cir. 1939); Tillman v. Canal Ins. Co., 305 So.2d 602 (La.App. 1st Cir. 1974), writ refused 307 So.2d 630 (1975).

The trial court found, and Travelers contends, that the DOTD and hence, Travelers, is not liable for the DOTD’s trucks tracking asphalt on the highway, as many different trucks owned by or operated by different companies, agencies, and individuals deposited asphalt on the highway, and it is impossible to determine the quantity of asphalt deposited by each. However, the various owners or operators of the trucks that deposited substantial quantities by repeatedly tracking asphalt on the highway were joint tort feasors and each is a debtor in solido responsible for the whole of the debt. Hence, the DOTD and Travelers are liable for the accident sued upon, unless Travelers introduces evidence to the contrary on Travelers’ presentation of its defense. It is well settled that one of multiple tort fea-sors may be sued singly and held liable for the whole of the debt. See Falgout v. Younger, supra; Huguet v. Louisiana Power and Light Co., 196 La. 771, 200 So. 141 (1941).

Travelers contends further that its policy does not afford coverage because the depositing of asphalt on the highways did not arise from ownership, maintenance, or use of a vehicle. Words of an insurance policy are to be accorded the meaning accorded them in their common and usual signification in general and popular use. Prestenback v. Prudential Ins. Co. of America, 257 So.2d 698 (La.App. 4th Cir. 1972). It is manifestly apparent that the tracking of asphalt on the public highway by DOTD’s trucks resulted from the “use” of those trucks, in that word’s general and popular signification. There can be no question that the policy applies.

Article 1810 of the Code of Civil Procedure reads as follows:

“A. A party who moves for a directed verdict at the close of the evidence offered by an opponent may offer evidence in the event that the motion is not granted, without having reserved the right so to do and to the same extent as if the motion had not been made. A motion for a directed verdict which is not granted is not a waiver of trial by jury even though all parties to the action have moved for directed verdicts. A motion for a directed verdict shall state the specific grounds therefor. The order of the court granting a motion for a directed verdict is effective without any assent of the jury.
“B. In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.”

Thus, in order to prevail on a “motion for a directed verdict” (as it is commonly called) in a non-jury trial, a party defendant must show plaintiff has “no right to relief.” The method of approach to be applied in determining whether a “motion for a directed verdict” shall be granted, and the question of whether or not this state should follow the federal approach of permitting a trial court to weigh and evaluate testimony on defendant’s motion for dismissal is considered in Roncal v. Commercial Union Assur. Co., 367 So.2d 24 (La.App. 2nd Cir. 1979), writ refused 368 So.2d 136 (1979), which we see ultimately finds it unnecessary to resolve the question. In any event, Travelers has clearly failed to show that plaintiffs have “no right to relief” against it, using the language of the newly enacted provision of the Code of Civil Procedure.

Plaintiffs have established a strong case in their favor. However, Travelers must be permitted to present its defense both as to liability and as to quantum. For this reason we make no ruling as to quantum in this opinion.

Hence, we arrive at the following determination of the cause presented:

1. It is held that liability of the Department of Transportation and Development, State of Louisiana, for failing to remove asphalt from the highway or to resurface the highway, and for failing to post signs, has been duly proved;

2. It is held that a directed verdict was improperly granted Travelers Insurance Company, and the matter is remanded to the trial court for Travelers to present its defense with regard to the liability of the DOTD and Travelers and with regard to quantum; and

3. All costs shall be paid by the DOTD.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

ON REHEARING

WATKINS, Judge.

We granted a rehearing in this case on all issues. We conclude that the doctrine of intervening cause bars recovery against the Department of Transportation and Development, State of Louisiana (DOTD), for its negligent act in tracking asphalt upon the highway and, hence, bars recovery against the motor vehicle insurer of its trucks, Travelers Insurance Company (Travelers).

There were clearly two acts of negligence in the present factual situation, (1) tracking asphalt upon the highway by the DOTD’s trucks and other vehicles, and (2) the failure of the DOTD to post signs warning of the presence of asphalt on the highway or to resurface the highway. The tracking of the asphalt upon the highway ceased approximately six months before the subject accident took place, and hence the failure of the DOTD to take preventive action by posting warning signs or resurfacing was the intervening cause of the accident, making the DOTD liable for that’ reason alone.

Two recent Louisiana cases have applied the doctrine of intervening cause in factual situations similar to the situation presented in this case, Reeves v. Louisiana and Arkansas Ry. Co., 282 So.2d 503 (La.1973), and Tillman v. Canal Insurance Company, 305 So.2d 602 (LA.App. 1st Cir. 1974), writ refused 207 So.2d 630 (1975).

In Reeves a truck driver (acting on instructions) parked a truck across the railway track and the truck was struck by a train. The negligence of the railway was, reduced to essentials, in failing to take affirmative action to prevent the occurrence of the accident. The Louisiana Supreme Court held that the railway’s negligence was the intervening cause of the accident, independent of and more proximately related to the accident than the improper parking of the truck on the track. Similarly, in the present case, negligence of the DOTD in failing to post warning signs is the intervening cause, although passive, of the plaintiffs’ accident, more proximately the cause of the accident than the more remote cause in tracking asphalt on the highway.

In Tillman, gravel had been spilled on a highway on a single occasion by a gravel truck. No action was taken to remove the spill or warn of the danger. Another truck proceeding down the highway some hours later was thrown into the path of an oncoming pickup truck when it encountered the gravel. The driver of the pickup truck was killed, and an action for wrongful death was brought. The gravel company which employed the truck driver who drove the gravel truck was insured under the same policy against both comprehensive general liability and comprehensive automobile liability. The comprehensive automobile liability had a coverage limit of $10,-000. The amount of damages we found was $152,381. We affirmed the trial court in holding that recovery should be under the comprehensive general liability coverage, not under the automobile liability coverage, because the negligence of the truck driver in failing to give warning of the spilled gravel was the intervening cause of the accident, preventing liability for the spilling of the gravel. The following paragraph of our opinion is pertinent:

“We must reject the defendant’s contention for the reason that it was not the use or operation of the truck that caused the damage to plaintiff. It was the intervening act of negligence of the driver, apart from the operation and use of the truck, that set in motion the harm which came to Mr. Tillman. By the truck driver negligently leaving the spilled gravel on the highway unattended the hazard unmarked and the motoring public not warned, a cause of action arose for recovery of damages. There is no connexity between the vehicle from which the gravel was spilled and the failure to protect the motoring public. For these reasons, we find that the negligent act which gave rise to the cause of action for the wrongful death of Mr. Tillman did not arise out of the ‘use’ of the automobile within the terms of the comprehensive automobile liability coverage of Fireman’s Fund policy, and that coverage applicable herein is under the comprehensive general liability feature of the policy.” (305 So.2d 602, 609)

Thus, in the present case, as in Tillman, the intervening cause is failure to give warning of the presence of a foreign substance on the highway,' which outweighs and supersedes the spilling of the foreign substance as a proximate cause. Hence, there can be no liability on the part of the DOTD for the tracking of the asphalt, as the failure of the DOTD to post warning signs or to resurface the highway was an intervening cause of the Mizell’s car going out of control upon encountering the asphalt. Therefore, we now hold that Travelers was properly granted a directed verdict in plaintiffs’ cause of action against Travelers, and affirm the action of the trial court in so doing.

We also note that we stated incorrectly that no third party demands were before this court on appeal. The appeals of these demands involved the issue of liability vel non for tracking the asphalt and were taken by Travelers and DOTD against other alleged trackers of the asphalt. These appeals were not indexed, and were inadvertently overlooked by us. As we hold that the tracking of the asphalt was not the proximate cause of the accident sued upon, we dismiss all third party demands.

This leaves us the question of quantum.

Both Doyle Mizell and Willie Hodges sustained severe personal injuries in the accident, while Brenda Mizell sustained relatively minor injuries. The trial court found that both Doyle Mizell and Willie Hodges were rendered incapable of earning a living for the rest of their work life expectancy, and awarded damages for loss of income accordingly.

Plaintiffs introduced by deposition the testimony of three medical experts. No other testimony of physicians was presented by either side. The three physicians whose depositions were filed in evidence were Dr. James T. Kilroy, an orthopedic surgeon, Baton Rouge, who treated both Mr. and Mrs. Mizell, Dr. Charles A. Strange, an orthopedic surgeon, Baton Rouge, who treated Willie Hodges for a period of time beginning March 18, 1976 (the accident it will be remembered took place in January of that year), and Dr. Dorsey Dysart, a neurologist and psychiatrist, New Orleans, who saw Doyle Mizell.

Dr. Kilroy’s testimony reveals that Doyle Mizell sustained a fracture of the L-l vertebra, which increased with collapse to a 90% compression, and comminuted (meaning severely shattered) right distal radius and ulna (hand and wrist). Mizell underwent a relatively minor operation to remove foreign substances from his right elbow that had become embedded as a result of the accident. Both wrist and back injuries were very painful.

When Dr. Kilroy saw Mizell on June 24, 1977, he noticed that L-l and L-2 vertebrae were beginning to fuse, the fusion mass also including T-12. He testified that if natural fusion does occur, that will be the best possible result as far as pain is concerned, as pain will then be greatly reduced, and Mizell will be able to do light, but not heavy work.

Mizell had worked but sporadically before the accident, partly because of a heart condition which ultimately required open heart surgery. His two work occupations were those of house painter and automobile mechanic. He had a good job as a mechanic with good possibilities for advancement before the accident. The grip strength of the right hand was severely reduced by the accident, preventing Mizell from performing intricate tasks such as turning a wrench or screw, thus making it impossible for him to work as a mechanic. He was right handed, and although he could use his left hand to paint, he could not perform full duty as a painter. He had been employed by his brother as a “charity” case, but he was virtually unemployable in his occupations as painter or mechanic in a competitive labor market. His condition was made worse by psychological problems which Dr. Dysart testified resulted from chronic pain, these being increased by hysteria, depression, and hypochondriasis. His personality difficulties tend to magnify his disability, according to Dr. Dysart.

We therefore, cannot find manifest error in the trial court’s finding that Doyle Mizell was totally disabled for the rest of his working life.

The testimony of Dr. Strange revealed that Willie Hodges underwent a fusion of C-3 through C-7 vertebrae at Charity Hospital in New Orleans before he was first seen by Dr. Strange. These vertebrae were wired together to prevent their sliding backward or forward and causing injury to the spinal column. Before surgery, Hodges’ pain would have been like a toothache. After surgery, the pain would result from stiffness and disuse. Narcotics would have been required until the fusion surgery was performed and the acute recuperative period completed. The fusion makes it impossible for Hodges to turn his head more than 45 degrees to the side or downwards. This inability to turn the head would make it dangerous for him to perform the types of work he did before the accident, boat captain and truck driver, nor because of this restricted motion could he return to two other former occupations, deckhand and mechanic. Dr. Strange thought he might be able to perform some type of work as a welder wearing goggles, for perhaps three or four hours a day, at the most. However, we consider this or any other possible employment a remote possibility in the labor market, in which an eight hour day is generally a minimum requirement.

We, therefore, cannot find that the trial court was clearly wrong or manifestly erroneous in finding that Willie Hodges was totally disabled for the rest of his working life.

It is true that both Hodges and Mizell had spotty employment records. However, both had had prior medical difficulties that were in the process of clearing up, and both had good possibilities of future employment. Hodges’ medical conditions that had interfered with employment were “fungus” of the bone (to use Hodges’ terminology, which may be incorrect, even as a lay term) and a cyst. Mizell had undergone open heart surgery. All these problems were in the past, and but for the accident, the future for both was more or less promising.

Dr. Jan Dugger, an economist, who had taught in the LSU Department of Economics from 1967 until 1972, was accepted by the Court as an expert in economics. Dr. Dugger had calculated and his testimony presented into evidence the loss of income of Doyle Mizell and Willie Hodges from the date of the accident to the date of trial. He also testified as to the present value of the future loss of income to be sustained by Mizell and Hodges, based upon a range of hypothetical situations, explaining in detail the statistical and actuarial bases which support the method of calculation he employed to arrive at the present value of their losses of income. Hodges was born on January 1, 1943 and Mizell was born on January 7, 1942. Dr. Dugger testified that Hodges had a work life expectancy of 29.5 years, and Mizell a work life expectancy of 28.4 years at the time of the accident.

With regard to Hodges, we note, the trial court used as a basis for its determining lost wages $200 per week. In giving several projections, Dr. Dugger, we note, did in fact make one projection based upon postulated earnings of $200 per week. The trial court in written reasons adopted the figure of $200 per week as the amount of earnings of Willie Hodges which it states was established by the record. In this assertion, we find, it was clearly wrong, and in basing lost past and future wages upon this figure, it clearly abused the broad range of discretion accorded the trier of fact in awarding damages. In 1975, the year immediately prior to the accident, Hodges’ earnings reported for Social Security purposes under Social Security No. [ XXX-XX-XXXX ] were $5,924.20. (Hodges contends that he had two Social Security numbers, with earnings under each, but this assertion is not supported by the exhibits which Hodges contends support this assertion.) Hodges’ earnings for earlier years were in no case equal to even half his 1975 earnings. The record shows that in the period October 2,1975 through December 26,1975, approximately a nine week period, Hodges earned $990 as a truck driver driving for Easterly Trucking Co. Using the annual earnings of $5,924.20 in 1975, weekly earnings were $113.93. If we use the $990 earnings in 9 weeks, weekly earnings were $110. Both amounts were only about half of the $200 per week used by the trial court in applying Dr. Dugger’s projections based on various postulated earnings. The use of the $200 per week figure was clearly wrong and an abuse of the trial court’s “much discretion” which it enjoys under LSA-C.C. art. 1934.

We do not find that the trial court abused its much discretion in its adopting as a method for determining present value of future loss of income the method used by Dr. Dugger. Its error was in the use of $200 as the postulated earnings loss per week for Hodges, because as we have stated above, the record does not support this amount. We find that the highest amount of weekly earnings loss that it would be permissible to use to calculate present value is $113.93, the average weekly earnings of Hodges for 1975, which is 57% of the sum of $200 per week used by the trial judge as postulated weekly earnings.

Dr. Dugger used as a discount various percentages, among them 5%, which was adopted by the trial court, and which use we cannot say was clearly wrong. Applying a 5% discount and using an overall increase of earnings of workers in Louisiana of 5.8%, which allows for a deduction for cohort survival of about 1% (cohort survival being the allowance for the number of individuals likely to die in one year), Dr. Dugger determined that the present value of Hodges’ loss of future income was $276,-993. Assuming postulated earnings of $200 per week, Dr. Dugger found the amount of lost earnings to time of trial to be $30,000. Both past and future earnings must be corrected by the figure of 57%, which is the corrective we have determined must be applied to reflect proven actual earnings of Hodges immediately before the accident.

Dr. Dugger used as a basis of Doyle Mizell’s earnings his weekly earnings of $174 while working for Tune-Up, Inc. We do not find this basis incorrect, or its use to have been clearly wrong. Using the method used for Hodges, the trial court found the amount of lost earnings by Doyle Mizell to the time of trial to have been $26,100, and $230,044 to be the present value of the loss of future income, or a total amount of lost earnings of $256,144.

The DOTD contends that it was a clear abuse of discretion to have used in determining lost wages, past and future, for Doyle Mizell and Willie Hodges sums considerably higher than their overall average past earnings over a period of several years. We have herein reduced the award for lost wages to Hodges, but even this amount is subject to the same possible contention, because the basis for lost past and future earnings in our decision is larger than the average sums earned in prior years. The answer to that contention is that both Hodges and Mizell had been in bad health, and were only just commencing to pull out of their somewhat disabling medical conditions at the time of the accident. The measure of lost earnings is not the amount actually earned at the time of injury; rather, it is the amount of the earning capacity. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976). The amount of actual earnings of Doyle Mizell and Willie Hodges over a period of several prior years is not a proper measure of lost earnings in the present case, as the amount of earnings immediately before the accident, when both were finally recovering from disabling medical conditions, was more nearly reflective of earning capacity.

The trial court awarded general damages in the sum of $175,000 to Willie Hodges and $100,000 to Doyle Mizell. Both suffered severe pain, and suffered 10% to 15% loss of function in their entire physical makeup. We find the awards to both generous, or rather high. However, the trier of fact has much discretion, and its award should not be disturbed unless that discretion was clearly abused. We are charged by the highest court of our state not to decide what we consider an appropriate award, but to review the trier of fact’s exercise of discretion in that determination to see whether or not there was a clear abuse of discretion. Reck v. Stevens, 373 So.2d 498 (La.1979). An award of a similar amount in general damages was affirmed in Daigle v. Lang, 377 So.2d 1384 (La.App. 4th Cir. 1980), a case which involved spinal injuries, and hence involved injuries similar to those sustained by Willie Hodges and Doyle Mizell, except that Mizell suffered injuries to the hand and wrist which further increased his disability and suffering. We cannot say that either award was a clear abuse of discretion in the light of Reck and Daigle. We cannot substitute our judgment for that of the trial court.

Dr. Kilroy in his testimony in deposition stated that Mrs. Brenda Mizell sustained “a very, very mild cervical sprain” as a result of the accident. She was awarded general damages of $20,000. That award we find was extremely excessive and constituted a clear abuse of the discretion granted the trier of fact. See, for example, the quantum of the awards in Skinner v. Nightingale, 377 So.2d 1348 (La.App. 1st Cir. 1979), and Hanzy v. Sam, 385 So.2d 355 (La.App. 1st Cir. 1980), writ refused 386 So.2d 357 (1980). We will reduce the award to the largest sum conceivably permissible in the exercise of the trial court’s much discretion, and reduce general damages to Brenda Mizell to $5,000.

We have carefully reviewed medical expenses and expert witness fees awarded and charged by the trial court, and find no error in the sums awarded.

The trial court inadvertently failed to award legal interest specifically in the judgment. That minor oversight may be corrected by this court on appeal. See Steele v. St. Paul Fire & Marine Ins. Co., 371 So.2d 843 (La.App. 3d Cir. 1979).

Therefore:

(1) The judgment for loss of past and future income in favor of Willie Hodges is reduced to the sum of $174,986.01 with legal interest from date of judicial demand.

(2) The judgment in favor of Doyle Mi-zell is affirmed, with legal interest from date of judicial demand.

(3) The judgment in favor of Willie Hodges for sums other than loss of income is affirmed, with legal interest from date of judicial demand.

(4) The judgment in favor of Brenda Mi-zell for pain and suffering is reduced to the sum of $5,000, and affirmed for medical expenses, with legal interest from date of judicial demand.

AFFIRMED IN PART, AMENDED IN PART, AND RENDERED.


author: BOUTALL, Judge. REDMANN, Judge, SCHOTT, Judge.

text:
    EASTLAKE TRADING CO., INC. v. IBERIA TRADING CO., INC. and Lanark, Inc.
    No. 12104.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 29, 1980.
    On Rehearing April 24, 1981.
    Writ Denied June 12, 1981.
    Phelps, Dunbar, Marks, Claverie & Sims, Rutledge C. Clement, Jr., George J. Fowler, III, New Orleans, for Lanark, Inc., defendant-respondent.
    Oestreicher & Whalen, David W. Oest-reicher, II, Ralph S. Whalen, New Orleans, on behalf of Eastlake Trading Co., Inc., plaintiff-appellant.
    Before REDMANN, BOUTALL and SCHOTT, JJ.
   BOUTALL, Judge.

We granted a writ of certiorari on the application of Eastlake Trading Co., Inc. plaintiff in this matter, to review the correctness of a judgment of the Civil District Court for the Parish of Orleans dated November 24, 1980, rendered in favor of defendant, Lanark, Inc., and against plaintiff dissolving and vacating a writ of attachment previously issued on November 19, 1980, and maintaining a peremptory exception of no right of action filed by Lanark, dismissing plaintiff’s suit with prejudice.

Eastlake Trading Co., Inc., a Panamanian corporation, sued Lanark, Inc., also a Panamanian corporation, alleging that the parties had entered into a joint venture agreement to sell steel products and that Lanark had violated the agreement between them, causing damages in the amount of $404,000. In this petition, Eastlake sought garnishment against Iberia Trading Company, Inc., a Louisiana corporation, alleging that Iberia had in its possession or under its control property belonging to Lanark, and obtained a non-resident writ of attachment attaching the sum of $122,876.30 purportedly due La-nark under a sight draft payable November 23, 1980.

In response to this petition and the resulting attachment, Lanark filed a peremptory exception of no right of action and a motion to dissolve the attachment. These matters came to trial resulting in the judgment above mentioned. Several issues have been raised both under the motion to dissolve the attachment, and under the exception of no right of action. Because of the fact that the motion to dissolve the attachment would only have effect as to the validity of the attachment itself, and would have nothing basically to do with the main issue of the suit, that is, a suit for violation of contract between Eastlake and Lanark, and because of the conclusion we reach on the exception, we see no necessity to discuss the issues relative to attachment.

The peremptory exception of no right of action (Article 927(5) of the Code of Civil Procedure) is based on 2 grounds, 1.) that the plaintiff corporation is not qualified to do business in the State of Louisiana, and 2.) neither the Corporation nor its President has been authorized to institute suit. As to the first, it is apparent from the record that Eastlake is a foreign corporation as its petition recites that it is a “Panamanian Corporation with its principal place of business located in Panama City, Republic of Panama.” There is some evidence, but not con-clusory, that Eastlake maintains an office and a bank account in New Orleans and has been actively doing business. Under LRS 12:314(A) a foreign corporation transacting business in Louisiana is not permitted to present any judicial demand before a court of this state unless it has been authorized to transact such business. Because there is some doubt in our minds as to whether, under the evidence presented, there is sufficient evidence to show that Eastlake did such business in Louisiana to bring it within the prohibition of that statute, (see R.S. 12:302) we do not rely upon that ground in affirming the maintenance of the exception.

The second basis of the exception, authority to institute suits, similarly is hinged upon whether Eastlake is doing business in Louisiana. R.S. 12:82(G) provides that the president of any foreign corporation doing business in this state shall have power to institute suit, unless otherwise provided, and no exception of want of authority shall lie on the part of the other party. This section is not applicable in this case because Eastlake has not provided the certificate of authorization to transact business required by R.S. 12:314(A).

The record shows that there was never any authority given the president of East-lake to file this suit, and that the board of directors of the corporation has never authorized this suit. There is no showing that the president was granted authority either by charter or by by-laws of the corporation to unilaterally bring such a suit on behalf of the corporation. Lacking such authority, plaintiff’s suit must be dismissed at its cost. Correspondingly, because we affirm the dismissal of the suit, the writ of attachment is dissolved and the stay order previously issued by this court is also dissolved.

The judgment appealed from, dated November 24, 1980, is affirmed.

AFFIRMED.

REDMANN, J., dissenting.

REDMANN, Judge,

dissenting.

The trial judge dismissed this suit because the president of plaintiff corporation Eastlake (who instituted the suit for plaintiff) is also president and sole shareholder of defendant corporation Iberia (though not of the real defendant, Lanark). That circumstance, however, is no obstacle to this suit, which is not one by an individual against himself but one by one legal person against another, wholly separate legal person.

The majority affirms on the grounds that (a) if plaintiff foreign corporation is doing business in Louisiana without having qualified, La.R.S. 12:814 A prevents its suit and (b) if plaintiff is not doing business in Louisiana it may sue but its suit must be authorized by its board of directors.

The assumption of the majority opinion is that the president of a foreign corporation not doing business in Louisiana has no authority to brihg suit for the corporation. I dissent from that assumption.

La.R.S. 12:82 G provides that

the president ... of any corporation or any foreign corporation doing business in this state, shall have power in the name and behalf of the corporation to authorize the institution ... of any suit and other legal proceedings, and no exception of want of authority shall lie on the part of any other party.

Although that statute is silent as to foreign corporations not doing business in the state, the conclusion seems unwarranted that the president of such a corporation must be presumed to lack authority to sue, when the general rule as to all corporations is to the contrary. See Fletcher, Cyclopedia Corporations, § 4216 (rev.1976); Henn, Corporations (2d ed., 1970), § 225. Because La.R.S. 12:82 G is otherwise consistent with the general rule, its silence on foreign corporations not doing business in Louisiana should not be interpreted to institute a contrary rule as to those corporations.

The facts of this case, furthermore, call for maintaining the suit instituted by plaintiff’s president. He and his father own 50% of plaintiffs shares and should alone exercise the corporate powers as to this suit because the other 50% belong to Lanark (the real defendant) and the Lanark-named directors have a conflict of interest that should prevent their vote. (See La.R.S. 12:84.) That plaintiff’s president owns 100% of “defendants”-garnishee Iberia presents no conflict of interest because Iberia concedes it owes the money in question, and the only issue is whether Lanark is indebted to plaintiff on the related contract alleged. If the Lanark-named directors of plaintiff corporation can prevent plaintiff’s suit against Lanark, then the non-Lanark shareholders will be unable to benefit from the plaintiff-Lanark contract sued on.

The correct result is to overrule Lanark’s exceptions and allow trial on the merits.

ON REHEARING

SCHOTT, Judge.

We granted a rehearing in order to reconsider our position that the trial judge properly maintained an exception of no right of action based on the fact that the president of plaintiff Corporation was not authorized to file suit in behalf of the corporation.

Although defendants’ exception was styled no right of action, a peremptory exception under C.C.P.Art. 927, we have concluded that the exception is more properly classified as a dilatory exception under Art. 926. The exception of no right of action is defined as one in which there is no interest in the plaintiff to institute the suit, Art. 927(5). Surely Eastlake had an interest in instituting this suit against Lanark and obtaining a conservatory writ of nonresident attachment pursuant to C.C.P.Art. 3541(5) with respect to the draft payable by defendant Iberia Trading Co., Inc. to La-nark, Inc. Under Art. 923 the function of the dilatory exception is to retard the progress of the action but it does not tend to defeat the action. On the other hand, the peremptory exception’s function is to have plaintiff’s action declared legally nonexistent, or barred by effect of law.

Defendants’ exception simply questions the authority of the president of a corporation to bring suit. If that question is not answered satisfactorily the progress of the suit is retarded by a judgment sustaining the dilatory exception. However, when the grounds of the objection may be removed by amendment of the petition or other action by plaintiff, the judgment sustaining the exception shall order plaintiff to remove them within the delay allowed by the court. The suit may be dismissed only for a noncompliance with this order, Art. 933.

In our original opinion, we held that the judgment of the trial court was correct starting from two alternative assumptions. If plaintiff is a foreign corporation doing business in Louisiana without having qualified, LSA-R.S. 12:314 prevents it from filing suit in Louisiana. If on the other hand plaintiff was not doing business in Louisiana the provisions of R.S. 12:82(G) would have no application and defendants’ exception of want of authority as to the president of the corporation bringing the suit would lie.

In briefs filed in this court on rehearing, plaintiff has alleged that it is now authorized by the Secretary of State to do business in Louisiana. It also alleged that its application for authority was pending at the time of the hearing on this exception. If that is so the defect in plaintiff’s status was being and could have been removed had plaintiff been given time by the trial judge in which to do so. We would therefore affirm the judgment of the trial court sustaining the exception as a dilatory exception of want of authority and allow plaintiff time in which to amend its petition to allege that it is now authorized to do business in the State of Louisiana.

Once plaintiff can prove itself as doing business in Louisiana, the provisions of R.S. 12:82(G) apply. This section is an unequivocal declaration that no exception of want of authority shall lie on the part of a defendent when the president of a foreign corporation doing business in the state authorizes the institution of a suit.

We are not unmindful of the trial court’s impression that plaintiff’s president was abusing the judicial system of the state in order to gain some personal advantage over Lanark and its principals. However, the assertions made by Lanark of wrong doing on the part of plaintiff are countered with equally strong assertions by plaintiff as to wrong doing on the part of Lanark and its principals. Furthermore, Lanark’s assertions do not compel the conclusion that Eastlake, as a matter of law, is not entitled to avail itself of the provisions relative to the writ of non-resident attachment simply because of the relationship of Hines to both Eastlake and Iberia. ■

If the seizure of the draft is maintained the parties may produce all of their conflicting evidence to show bad faith and misconduct on the part of each other, the trial court will have an opportunity to evaluate the evidence and can arrive at a conclusion awarding the funds to the proper party. This is preferable since matters will remain in status quo until the controversy is fully tried and decided. While Lanark, if it prevails in the litigation, may be caused some temporary inconvenience while the check remains under seizure, such inconvenience should not be irreparable.

Accordingly, the judgment of the trial court sustaining the exception of Lanark, Inc. is affirmed but only to the extent that the exception is considered a dilatory exception of want of authority on the part of plaintiff’s president to bring the suit. The judgment of the trial court dismissing plaintiff’s suit is reversed and the case is remanded to the trial court to enable plaintiff to file amended pleadings in order to allege that it is authorized by the Secretary of State to do business in Louisiana and for further proceedings consistent with this opinion. All costs of this appeal are taxed against Lanark, Inc. with the balance of costs to await the outcome of this case.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

REDMANN, J., concurs in the reversal and remand.

      . “The president or chief executive officer of a corporation according to the more modern authorities, ordinarily has power to institute suits on behalf of the corporation, although there are cases to the contrary.”

      . “So far as instituting corporate litigation or arbitration in the corporate name is concerned, the president or any other officer or person acting as general manager usually has implied authority to do so, but such implied authority, like other implied authority, can be negatived by provisions in the articles of incorporation or bylaws or by resolution of the board of directors.”

      .Lanark’s argument that Panamanian law disables a president to act without board authorization rests exclusively on that law’s rule that corporate powers are vested in the board of directors. Because that is also the rule in Louisiana, La.R.S. 12:81 A, and, so far as this writer is informed, also the rule in every other jurisdiction, Lanark’s argument is unfounded.


author: GULOTTA, Judge.

text:
    STATE of Louisiana et al. v. WILCO CONSTRUCTION CO., INC. et al.
    No. 11490.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 1, 1981.
    State of Louisiana, Dept, of Justice, William J. Guste, Jr., Atty. Gen., Robert E. Redmann and Stephan J. Caire, Asst. Attys. Gen., New Orleans, for plaintiffs-appellees.
    Dodge, Friend, Wilson & Spedale, Douglas S. Draper and Gordon F. Wilson, New Orleans, for defendants-appellants, Wilco Const. Co., Inc. and St. Paul Fire and Marine Ins. Co.
    Deutsch, Kerrigan & Stiles, Frederick R. Bott, New Orleans, for defendants-appellants, Register & Cummings and Associates, Architects.
    Before GULOTTA, SCHOTT and SAR-TAIN, JJ.
   GULOTTA, Judge.

PER CURIAM.

St. Paul Fire and Marine Insurance Company has filed a “Motion for Clarification and/or Amendment to Judgment” to that part of the judgment rendered by this Court which reads, in pertinent part, as follows:

“The judgment in favor of the State of Louisiana and against Wilco Construction Company, Inc. and St. Paul Fire and Marine Insurance Co., in solido, is increased from $20,121.00 to $23,030.00 with interest from date of judicial demand until paid. The surety, St. Paul Fire and Marine Insurance Co., is exonerated from this award to the extent of $10,000.00.”

No request for rehearing was made and our decision has become final.

St. Paul claims the State is entitled to interest based on the sum of $13,030.00. On the other hand, the State contends that interest should be calculated on $23,030.00 and the $10,000.00 credit in favor of St. Paul should be deducted from the $23,030.00 figure, plus interest.

Although the time for filing an application for rehearing in this Court has expired, we conclude we have authority to clarify the wording of our decree. The official revision comments to LSA-C.C.P. Art. 1951 state, “It is well settled that appellate courts have power to correct appellate court judgments.” See also, State v. F.B. Williams Cypress Co., 132 La. 949, 61 So. 988 (1913); Levy v. Cappel, 39 So.2d 128 (La.App. 2nd Cir. 1949); State Dept. of Highways v. Eubanks, 345 So.2d 533 (La. App. 3rd Cir. 1977).

In our original opinion we stated that the surety’s right to a pro tanto discharge resulted from the State’s premature release of a portion of the retainage to the contractor. We concluded and decreed that St. Paul was exonerated from the award in favor of the State to the extent of $10,-000.00. Having so decreed, we conclude that the State’s position that legal interest should be computed on the full amount of the solidary judgment against the contractor and surety in the sum of $23,030.00 is without merit. The surety is entitled to a $10,000.00 release and cannot now be held liable for interest on the total $23,030.00 award. In phrasing our judgment it was not our intention to hold the surety liable for interest on the full award. We intended and now clarify that St. Paul Fire and Marine Insurance Company is responsible for interest on the net amount of the award after it has been exonerated from the payment of $10,000.00, or interest on $13,-030.00.

Accordingly, the judgment rendered by this Court, 393 So.2d 885 (La.App.), is amended to read as follows:

The judgment in favor of the State of Louisiana and against Wilco Construction Company, Inc. and St. Paul Fire and Marine Insurance Company, in solido, is increased from $20,121.00 to $23,030.00, with interest from date of judicial demand until paid. The surety, St. Paul Fire and Marine Insurance Company is exonerated from this award to the extent of $10,000.00. St. Paul is therefore liable for interest on the sum of $13,030.00. In all other respects our original judgment remains unchanged.


author: EDWARD J. STOULIG, Judge Pro Tern.

text:
    William Wesley JOHNSON, III v. Phillip FULWOOD (Consumer Insurance Agency, Garnishee).
    No. 12008.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 21, 1981.

      Santo A. Dileo, New Orleans, for plaintiff-appellee.
    Lobrano, Ballay & Braud, Charles J. Bal-lay, Belle Chasse, for defendants-appellants.
    Before KLIEBERT, STOULIG and BAILES, JJ.
   EDWARD J. STOULIG, Judge Pro Tern.

Garnishee, Consumer Insurance Agency, has appealed a judgment condemning it to pay plaintiff, William Johnson, III, $7,988.84 plus 25% attorney fees, representing the amount the garnishee failed to withhold from the wages of Phillip Fulwood under a garnishment judgment.

On July 18, 1977 Johnson filed a petition in the 25th Judicial District Court for the Parish of Plaquemines to make executory in that jurisdiction a $21,014.70 judgment of the 24th Judicial District Court for the Parish of Jefferson. After having the judgment signed that same day, plaintiff obtained a writ of fieri facias and thereunder cited Consumer Insurance Agency, employer of judgment debtor, as a garnishee.

The first attempt to serve the garnishee was unsuccessful and the deputy sheriff noted in his return: “NO SUCH CO. BY THIS NAME. THE NAME IS CONSUMER INS. LTD. OR PLAQ. INS. AND BROKEAGE (sic) CO.”

On August 8, 1977 plaintiff filed garnishment interrogatories directing the sheriff to serve “Consumer Insurance Ltd., d/b/a Plaquemines Insurance & Brokerage Ltd., a/k/a Plaquemines Insurance & Brokerage Company.” Again the Plaquemines deputy sheriff noted on his return he could not serve the document because: “NO SUCH CO. BY THIS NAME. THE NAME OF THE CO. IS PLAQ. INS. BROKER LTD., d/b/a CONSUMER INS. AGENCY.”

On September 7,1977 plaintiff filed more garnishment interrogatories and this time directed the sheriff to serve “Consumer Insurance Agency or through the proper officer of Plaquemines Insurance Brokerage, Ltd.” The return on this third attempt was accepted by “Consumer Ins. Agency through Phillip Fullwood, president.” All three citations were directed to the same address where the sheriff finally succeeded in serving the debtor in his capacity as president of the garnishee.

In answer to the garnishment interrogatories, Consumer Insurance Agency admitted employing Phillip Fulwood at a weekly salary of $251.68. By joint motion of the attorneys for the garnisher and garnishee this decree was rendered:

“IT IS ORDERED, ADJUDGED AND DECREED that CONSUMER INSURANCE AGENCY, garnishee be and it is hereby ordered to withold (sic), deduct and pay to petitioner herein, for any week while defendant, PHILLIP FULL-WOOD, is in the employ of garnishee, the lesser of the following: (a) 25% of the disposable earnings (as defined by R.S. 13:3881, as amended by Act 530 of 1972), or (b) the amount by which the disposable earnings of defendant exceeds the sum of $70.00; said deductions and payments to begin upon satisfaction of any prior garnishments, if any, or from date of service of garnishment, September 23, 1977, and to continue so long as said defendant is in the employ of said garnishee or until the full amount of the judgment herein rendered against defendant shall have been paid in full, including any commissions due by law.”

On February 11, 1980 plaintiff filed a rule for an accounting alleging he had only received $1,100.00 under the judgment of garnishment and that 108 weeks had elapsed without the garnishee transmitting the wages it was required to withhold from Fulwood’s salary. Mover further averred he received no court order modifying the judgment.

At a hearing on the rule, mover presented no evidence to establish that the garnishee had in fact failed to withhold and forward the stipulated amount. Nor did he prove that at the time of this rule the judgment had not been satisfied in some other manner.

The only evidence adduced was that of judgment debtor, Phillip Fulwood, whose testimony was vague and equivocal. Ful-wood testified he was not employed by anyone and it is still not clear from his testimony what is the correct name of the employer corporation.

As in the original hearing the scope of the trial on remand and the respective burdens each litigant must carry are established by L.R.S. 13:3923, which provides:

“It shall not be necessary that more than one writ of garnishment or one set of interrogatories be served in such cases, but the court shall render judgment for the monthly, semimonthly, weekly or daily payments to be made to the seizing creditor according to the manner best suited to the circumstances, until the indebtedness is paid. The garnishor shall serve upon the garnishee the citation, the petition, the garnishment interrogatories, the notice of seizure, and a statement of sums due under the garnishment, such statement to include, but not be limited to, the principal, interest, court costs incurred to date, and attorney’s fee due under the judgment. The court, in its discretion, may reopen the case upon the motion of any party concerned for evidence affecting the proper continuance of such judgment, and the court shall retain jurisdiction to amend or set aside its judgment at any time in its discretion; however, all effects of the seizure by garnishment shall cease upon the termination of employment of the debtor with the garnishee, unless the debtor is reinstated or reemployed within one hundred eight days after the termination. Should judgment by default be taken against any party garnishee, he may obtain a reopening of the case upon proper showing and within the discretion of the court.” (Emphasis supplied)

From the italicized portion of the statute, we note that any party may reopen a garnishment proceeding to amend or modify the judgment. It also stipulates the wage garnishment is terminated contemporaneously with the termination of employment by the judgment debtor. The employer, logically, is in the best position to know at what point the judgment debtor is no longer employed by him. Thus, when a judgment creditor files a rule for an accounting and establishes by competent evidence that he has not been paid in accordance with the terms of the original judgment, then the burden of proof shifts to the employer to explain his failure to transmit garnished wages. The garnishee’s response where employment of the debtor has been terminated is in the nature of the affirmative defense of extinguishment of an obligation as set forth in C.C.P. art. 1005.

We do not understand R.S. 13:3923 to place an affirmative duty on the employer to seek immediate modification of the judgment of garnishment once the debtor leaves his employ. The last sentence of 13:3923 permits the garnishee against whom a default is entered in a modification proceeding to have the case reopened. This right would not be granted if the garnishee employer had an affirmative duty to bring the motion to terminate the judgment.

In Sun Sales Co. v. Hodges, 237 So.2d 684 (La.1970), the court characterized the garnishee as the legal custodian of the garnished funds of the judgment debtor. While the custodian must account for funds actually withheld, it would be oppressive to require a garnishee, aptly described by Justice Barham in the Sun Sales dissent as a “forced middleman collector and benefactor without compensation for the creditor, debtor and the courts”, to bear the expenses of a court proceeding to affirmatively terminate a judgment of garnishment.

In summary plaintiff failed to establish his right to an accounting under the judgment of garnishment by a preponderance of the evidence. We find no merit in the garnishee’s argument that plaintiff additionally had the burden of proving Pul-wood remained in the employ of Consumer Insurance Agency during the period in which garnished wages were not forwarded.

We note that both litigants, in briefs, refer to a bankruptcy proceeding in which Fulwood allegedly discharged this debt in bankruptcy; however, that discharge was apparently reversed on appeal by the Federal District Court and the bankrupt is now appealing the reversal of the judgment of discharge in the United States Court of Appeals, Fifth Circuit. While this proceeding would explain the lapse by the creditor in seeking an accounting, we cannot consider this information in our review because it was never made part of the record in the trial court. See Pertuis v. Islander Motor Homes, Inc., 294 So.2d 284 (La.App. 1st Cir. 1973).

In any event, the record before us does not support the judgment that was rendered and while plaintiff failed to establish the present status of the judgment balance when this rule was tried, as well as nonpayment, defendant Fulwood, either individually as a debtor or as a corporate officer of the garnishee company, failed to explain satisfactorily his employment situation when this information obviously was known to him. We could dismiss the rule without prejudice; however, we conclude a more just result would be obtained if we remanded this matter to permit both parties to adduce evidence in support of their respective positions. C.C.P. art. 2164 gives appellate courts authority to render any judgment which is just, legal and proper upon the record on appeal. Hall v. Arkansas Louisiana Gas Co., 359 So.2d 255 (La. App. 2nd Cir. 1978); Guilott v. Guilott, 326 So.2d 551 (La.App. 3rd Cir. 1976).

For the reasons assigned, the judgment appealed from is vacated and this matter is remanded for further proceedings consistent with the views we have herein expressed. Costs are to be assessed at the final adjudication of this matter.

JUDGMENT VACATED; REMANDED.


author: PRICE, Judge.

text:
    Benjamin Wade LEDBETTER, Plaintiff-Appellee, v. Melissa Ann Alexander LEDBETTER, Defendant-Appellant.
    No. 14515.
    Court of Appeal of Louisiana, Second Circuit.
    April 27, 1981.
    D. G. Brunson, Jonesboro, for appellant.
    Whitten & Blake by John C. Blake, Jonesboro, for appellee.
    Before PRICE, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   PRICE, Judge.

In this suit Benjamin Ledbetter sues his wife, Melissa Ledbetter, for a separation from bed and board. By her reconventional demand she likewise prays for a judgment of separation in her favor. This appeal by the wife is from a judgment on a rule nisi denying her request for alimony pendente lite. Because our review of the record discloses no abuse of the discretion accorded the trial court in such matters, this judgment is affirmed.

The parties were married February 23, 1980, in Bienville Parish, Louisiana. At the time of the marriage Benjamin was eighteen years old and Melissa was fifteen. Shortly after the marriage Benjamin obtained employment with a restaurant chain as a manager trainee which subsequently led to his appointment as manager of a restaurant in Alexandria, Louisiana. In this capacity he had a gross income of $900 per month. Melissa was unemployed during the time the couple lived together and remained so at time of trial.

In July 1980 the couple physically separated with Melissa returning to her parents’ home. Shortly after Benjamin filed this suit, on July 31, 1980, he was terminated from his employment. He returned to the home of his parents and enrolled at Northwestern State University where he was at the time of trial a full-time student majoring in accounting and health and physical education. Melissa was attending classes at a vocational-technical school for the purpose of obtaining her high school equivalency certificate.

After hearing the testimony of the parties the trial court denied the wife’s request for alimony pendente lite. This judgment was based on the fact that Benjamin had no means to pay (being fully supported by his parents) and the fact that Melissa’s needs were being cared for by her parents. The immaturity of the parties and the fact that they had both returned to the homes of their respective parents to further their education were additional considerations for the trial court’s decision.

The sole issue on this appeal by the wife is whether the trial court abused its discretion in denying the temporary alimony.

La.C.C. Art. 148, which provides for alimony pendente lite, was amended by Act 72 of 1979 to provide that either spouse could claim the alimony, not just the wife. This was a legislative response to the United States Supreme Court decision of Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979), wherein the Supreme Court declared unconstitutional a statute which restricted the award of alimony to women only. In addition to adapting Art. 148 to the gender-neutral requirements of the United States Constitution, the amendment also altered the article to provide that awards of alimony pendente lite to spouses with insufficient income for maintenance was to be a matter within the discretion of the trial judge. Art. 148 as amended reads:

If the spouse has not a sufficient income for maintenance pending suit for separation from bed and board or for divorce, the judge may allow the claimant spouse, whether plaintiff or defendant, a sum for that spouse’s support, proportioned to the needs of the claimant spouse and the means of the other spouse. (Emphasis added)

Before its amendment this article included the mandatory “shall” in place of the permissive “may.” See La.R.S. 1:3. This indicates a legislative intent that the trial court should not be constrained to order temporary alimony in all cases.

The wife contends that a husband cannot arbitrarily quit his employment in order to avoid his obligation of maintaining his wife in a standard of living comparable to that which she enjoyed before the separation. To this contention we respond by noting that the record fails to support an allegation that Benjamin quit his job. His uncon-tradicted testimony was that he was discharged by his employer after becoming involved in the present litigation.

In the instant case the trial court concluded that although Melissa had no income, an award of alimony pendente lite would be inappropriate at the present time. This is a fair and practical result in a situation in which the parties, both teenagers, are unemployed students living with their parents.

We note that the parties lived together as husband and wife for only five months during which time they undoubtedly continued to receive much support and assistance from their parents. This is not a situation in which the spouses after many years of married life have assumed the marital roles of wage earner and homemaker customary to marriages of long duration. In such a situation where the homemaker is suddenly faced with the loss of all support from the wage earner spouse, alimony pendente lite could serve the function of preserving and continuing the status quo pending the outcome of a trial on the merits. See Arrendell v. Arrendell, 390 So.2d 927 (La.App.2d Cir. 1980).

Under the particular facts and circumstances of this case, we cannot say that the trial court’s denial of the wife’s request for alimony pendente lite was an abuse of discretion, and for this reason, the judgment appealed is affirmed.

Costs of this appeal are assessed to plaintiff-appellant.

      . Although the traditional basis of this obligation, La.C.C. Art. 120, obliges the husband to furnish the wife with “whatever is required for the convenience of life,” the continued validity of this non-reciprocal obligation is at best dubious in view of the Orr decision. See comment at 40 La.L.Rev. 477 (1980).


text:
    S. W. HAILE and Mrs. Oleta Haile, Plaintiffs-Appellants, v. Billy COOPER and Jack Cooper d/b/a Cooper Brothers Construction et al, Defendants-Appellees.
    No. 14516.
    Court of Appeal of Louisiana, Second Circuit.
    April 27, 1981.
    Writ Denied June 5, 1981.

      Bobby L. Culpepper, Jonesboro, for plaintiffs-appellants.
    Whitten & Blake by Leon H. Whitten, Jonesboro, for defendants-appellees, Billy Cooper and Jack Cooper and Earl Alexander.
    Joseph A. Reeves, Jr., New Orleans, for defendant-appellee, James Eddie Brown.
    Before PRICE, JASPER E. JONES, and FRED W. JONES, Jr., JJ.
   PRICE, Judge.

This is an action by Mr. and Mrs. S. W. Haile for recovery of damages from defendants for the alleged breach of contract and defective workmanship in the construction of the foundation of a residence. From an adverse judgment rejecting their demands, plaintiffs have appealed. We affirm for the reasons assigned.

During 1971 plaintiffs undertook the construction of a residence on a 15 acre tract of land owned by them in Jackson Parish. Plaintiffs obtained a set of floor plans from a draftsman and engaged Billy Cooper and Jack Cooper to perform the necessary carpentry work, including the digging of footings, building of forms, and other preparatory work for the pouring of the concrete foundation. Plaintiffs engaged James Eddie Brown to do the site clearance and leveling of the selected homesite which was situated on a hillside.

The pouring and finishing of the slab was contracted to J. Earl Alexander.

Although the construction of the home was completed in November 1971, it was not until the summer of 1978 that plaintiffs noticed cracks developing in the brick veneer exterior walls of the house. Plaintiffs consulted a soil stabilization service and learned that the cause of the cracks was a break in the concrete slab resulting from settlement of the fill dirt used to level the downhill portion of the building site.

Plaintiffs then filed this suit against the Coopers, Brown, and Alexander contending that each of these craftsmen caused the damages complained of. Plaintiffs allege the Coopers contracted to build them a home according to the floor plans furnished, and that the Coopers were to select the most suitable building site on the 15 acre tract owned by plaintiffs. They contend the Coopers breached their contractual obligation by selecting a site which required extensive fill dirt and by failing to extend the foundation footings to undisturbed soil in accordance with accepted construction practices when building a structure to be partially situated on fill dirt.

Plaintiffs contend Brown breached his obligation by failing to properly compact the soil during the site leveling process.

Although Alexander was made a defendant no specific allegations of inferior work were made against him and plaintiffs have not appealed from the rejection of their demands against this defendant.

After trial on the merits the trial court found that the expert testimony showed the breaking of the foundation resulted from a failure to sufficiently compact the fill soil under the east portion of the residence or from the failure to extend footings to undisturbed soil in this area of the structure. The court further found that either of these methods would have been an acceptable method to prevent possible damage to the slab from soil contraction resulting from loss of moisture content. The court concluded however that neither the Coopers nor Brown should be responsible for the resulting damage, as the fault rested with plaintiffs in not providing specific plans and specifications for construction of the foundation.

There is no question of the correctness of this finding as to Brown. The evidence shows that Brown followed the recognized method of compacting the fill soil by placing thin layers of dirt and compacting each layer by “walking” the dirt with a heavy bulldozer. Plaintiffs admit they observed Brown following this method. Whether the degree of compaction is sufficient in any given instance can only be determined by a compaction test performed by scientific testing as the mineral content of the soil can affect the amount of compaction required. No such testing was provided or required by plaintiffs. Under these circumstances Brown should not be responsible for any deficiency in compaction.

Plaintiffs contend the Coopers possessed superior knowledge as carpenters as to the proper construction of a foundation located partially on fill dirt. Plaintiffs contend it was error for the trial court to find that plaintiffs should have determined the method to be used to prevent damage to the foundation from soil shrinkage.

Plaintiffs rely principally upon the decisions of Ragusa v. Ply-Woods, Inc., 170 So.2d 254 (La.App. 4th Cir. 1964), writ refused 247 La. 413, 171 So.2d 667 (1965), and Wurst v. Pruyn, 250 La. 1109, 202 So.2d 268 (1967). These cases are not factually analogous to the instant matter as they were each concerned with the responsibility of a general contractor.

The record in this case clearly supports the finding that the Coopers were not general contractors who were responsible for the completion or quality of the work contracted to other trades by plaintiffs.

Plaintiffs’ counsel also cited in oral argument the recent decision in Noel v. Devillier, 392 So.2d 729 (La.App. 3d Cir. 1980), in support of plaintiffs’ position that a party who undertakes the carpentry work in construction of a residence owes the duty of seeing that all work is carried on in accordance with the plans furnished by the owner.

We find this decision to lend little comfort to plaintiffs under the factual circumstances here presented. First, there were no plans for the foundation provided by plaintiffs. Secondly, compaction work was performed by Brown in an acceptable manner and the Coopers had no reason to believe it was insufficient without engaging an engineering service to run a compaction test. The evidence shows it is not the usual or customary practice to incur the expense of such tests in residential construction in the Jackson Parish area.

In the absence of plans or specifications specifically requiring the footings or pilings be extended to undisturbed soil, and in view of the factual finding of the trial court that compaction of fill dirt is an acceptable safeguard for the protection of a concrete foundation, plaintiffs have not shown that the Coopers have breached any contractual or delictual duty owed to them.

The judgment appealed is affirmed and costs of this appeal are assessed to appellants.