author: CULPEPPER, Judge.

text:
    Alvin DAIGLE, Plaintiff and Appellant, v. David D. CHAISSON et al., Defendant and Appellee.
    No. 8047.
    Court of Appeal of Louisiana, Third Circuit.
    March 11, 1981.

      Newman & Pazzio, A. J. Fazzio, Lake Charles, for plaintiff and appellant.
    Logan Nichols, Jennings, Handley & Lavern, Douglas J. Handley, Lake Charles, for defendant and appellee.
    Before CULPEPPER, FORET and SWIFT, JJ.
   CULPEPPER, Judge.

This is a suit on a promissory note. Plaintiff Alvin Daigle, an indorser and presently the holder of the note, seeks indemnity or, in the alternative, contribution from the defendant, David Chaisson, a co-indorser. The district court rejected plaintiff’s claim against defendant. Plaintiff appeals.

The principal issue is whether plaintiff, suing as an accommodation indorser who has paid the instrument, has a right of recourse against defendant, and, if so, for how much.

On March 22, 1979, Jerry Iguess made a promissory note payable to the Calcasieu Marine National Bank in the amount of $7,000 with 10% interest and attorney’s fees. On the reverse side of the note appear the names of Alvin Daigle, David Chaisson and Marlene Daigle, plaintiff’s wife. Under each of these names is the word “endorser”. The note became due on July 20, 1979.

On May 18,1979, Jerry Iguess, the maker of the note, filed a petition for bankruptcy listing the Calcasieu Marine Bank note as one of his items of liability. Mr. Iguess received a discharge in bankruptcy on August 9, 1979.

When the note became past due, the bank knew that Iguess had filed a petition in bankruptcy court, so the bank made demand on both Daigle and Chaisson as in-dorsers. Daigle testified that at this point he asked Chaisson to pay the note, but Chaisson refused. Preferring not to damage his own credit, plaintiff purchased the note from Calcasieu Marine for the sum of $7535, of which $7,000 was the principal and the remainder was interest. He then filed the present suit against both Chaisson and Iguess for the sum of $7,535 which he paid for the note, plus legal interest thereon and a reasonable attorney’s fee. In the alternative, he seeks judgment against Chaisson as co-indorser for one-half the amount he paid for the note. Iguess was later dismissed by plaintiff as a party.

After the presentation of the evidence, the district court denied plaintiff any indemnity or contribution against Chaisson. In its written opinion, the court concluded that plaintiff could not obtain contribution from a co-indorser without first seeking recourse from the maker. For the reasons which follow, we reverse.

Under the Commercial Laws, La. R.S. 10:1-101, et seq. adopted in 1975 and repealing the former Negotiable Instruments Law, an accommodation party is “one who signs the instrument in any capacity for the purpose of lending his name to another party to it.” La.R.S. 10:3-415(1). From the note itself, it is apparent that Daigle, his wife and Chaisson signed the note as indorsers. The accommodation character of the three indorsements is also clear since they do not appear in the chain of title to the note. La.R.S. 10:3-415(4). This finding is also supported by the testimony which reflects that the names of the three indorsers were added to the instrument as additional security for the bank.

Directly above the three indorse-ments on the note is found the following language: “... the undersigned hereby jointly and severally guarantee to the Cal-casieu Marine National Bank of Lake Charles, its successors, indorsers or assigns, the punctual payment at maturity of said loan;”. The three indorsements on the reverse side of the note appear in a horizontal line rather than vertical. Plaintiff’s in-dorsement is farthest to the left followed by that of Chaisson and then plaintiff’s wife.

Initially, we interpret the phrase “jointly and severally” to mean that the three in-dorsers bound themselves in solido with the principal obligor. The common law term “joint and several” has been held synonymous with our Civil Law term “in solido”. Johnson v. Jones-Jour net, 320 So.2d 533 (La.1975), Ford Motor Credit Company v. Soileau, 323 So.2d 221 (La.App. 3rd Cir. 1975). Moreover, as these parties “guaranteed” the punctual payment of the loan, the bank could proceed directly against each indorser for the whole amount without first making demand upon the maker. La.R.S. 10:3-416(1). The Official Comment to Uniform Commercial Code, Section 3-416 states:

“An indorser who guarantees payment waives not only presentment, notice of dishonor and protest, but also all demand upon the maker or drawee. Words of guarantee do not affect the character of the indorsement as an indorsement [Section 3-202(4)]; but the liability of the indorser becomes indistinguishable from that of the co-maker.”

The order of liability of indorsers is provided in La.R.S. 10:3-414(2) as follows:

“Unless they otherwise agree, indorsers are liable to one another in the order in which they indorse, which is presumed to be the order in which their signatures appear on the instrument.

It could be argued under Section 3-414(2) that since plaintiff signed farthest to the left, followed by Chaisson, on the horizontal line on which all three indorsers signed, that plaintiff indorsed first and is precluded by this section from any recourse against Chaisson. However, the presumption of Section 3-414(2) may be rebutted by evidence which shows a different order or division of liability was intended or agreed to by the parties. See La.R.S. 10:3-415(3) and Gulf National Bank v. Computer Analysis, Inc., 278 So.2d 827 (La.App. 3rd Cir. 1973), construing a similar provision of the Negotiable Instruments Law.

In the instant case, the testimony shows that Jerry Iguess and David Chaisson were business partners engaged in a welding business. The present debt was incurred to purchase land and equipment for their welding shop. Plaintiff testified that his and his wife’s names were supplied to the instrument only to accommodate Iguess. Daigle testified that he had no financial interest in defendants’ business, nor did he receive any of the funds borrowed. The record also shows that all three indorse-ments were affixed to the instrument simultaneously.

We think the circumstances surrounding the signing of the note, as well as the other factors mentioned, negate any intent on the part of the indorsers to be bound in the order in which they signed. All of the evidence in the record shows no indorser was to share a greater portion of the liability than the other co-indorser. Chaisson makes no contention to the contrary.

We thus conclude that Section 3-414(2) does not bar plaintiff from seeking recourse against his co-indorsers. We find, however, no provisions in the Commercial Laws which provide for indemnification or contribution between accommodation in-dorsers once the presumption of Section 3-414(2) has been overcome.

We are aware that in THE WORK OF THE LOUISIANA APPELLATE COURTS FOR THE 1978-79 TERM — SECURITY DEVICES, 40 La.L.Rev. 572 at 574, the author suggests La.R.S. 10:3-415(5) should be construed to mean that “An accommodation indorser who pays the holder may still pursue the other indorsers and the maker on the instrument and recover whatever attorney’s fees, costs, and interest the note provides.” The entire Section 3-415 reads as follows:

“Sec. 3-415. Contract of accommodation party
“(1) An accommodation party is one who signs the instrument in any capacity for the purpose of lending his name to another party to it.
“(2) When the instrument has been taken for value before it is due the accommodation party is liable in the capacity in which he has signed even though the taker knows of the accommodation.
“(3) As against a holder in due course and without notice of the accommodation oral proof of the accommodation is not admissible to give the accommodation party the benefit of discharges dependent on his character as such. In other cases the accommodation character may be shown by oral proof.
“(4) An indorsement which shows that it is not in the chain of title is notice of its accommodation character.
“(5) An accommodation party is not liable to the party accommodated, and if he pays the instrument has a right of recourse on the instrument against such party.”

In our view, Subsection (5) governs only the relationship between the accommodation party and the “party accommodated.” The party accommodated in most cases is the maker, but it could be a prior indorser in the chain of title or another party. The rule which Section 3-415(5) makes clear is that an accommodation party is not liable to the party accommodated, whoever he be, and if an accommodation party pays the instrument he has a right of recourse on the instrument against such party, meaning the party accommodated. We cannot construe Subsection (5) as meaning that where one of two or more accommodation co-indorsers agrees to be bound in solido to pay the principal obligation, as in the present case, that one of the accommodation parties can pay the instrument and sue the other accommodation parties “on the instrument” for the principal debt, interest, attorney’s fees, etc.

Our construction of the statute is supported by the Official Comment under the U.C.C., Section 3-415 which reads as follows:

“5. Subsection (5) is intended to change the result of such decisions as Quimby v. Varnum, 190 Mass. 211, 76 N.E. 671 (1906), which held that an accommodation indorser who paid the instrument could not maintain an action on it against the accommodated party since he had no ‘former rights’ to which he was remitted. Under ordinary principles of suretyship the accommodation party who pays is subrogated to the rights of the holder paid, and should have his recourse on the instrument.”

The Comment, Suretyship Law And Negotiable Instruments Law: The Liability Of An Accommodation Party To A Negotiable Instrument In Louisiana, 24 Loy.L.R. 251 at 258 also supports our position:

“Article 3 (of the U.C.C.), unlike the Negotiable Instruments Law, recognizes that an accommodation party, whether he signs the instrument as a maker or as an indorser is basically a surety. The official comments emphasize the accommodation party’s suretyship nature: ‘He differs from other sureties only in that his liability is on the instrument and he is a surety for another party to it. His obligation is therefore determined by the capacity in which he signs.’ The comments continue to discuss the liability of an accommodation maker, a party not generally treated as a surety under prior law. Because the comments repeatedly refer to the accommodation party as a surety, “the drafters doubtless intended surety-ship law, at least to some extent, to apply in defining the liability of the accommodation party. Because the Uniform Commercial Code does not generally purport to regulate suretyship law, the drafters in referring to the accommodation party as a surety presumably meant to refer to the state law of suretyship. What remains unclear is the extent to which state suretyship law may be used to define the liability of the accommodation party.”

Having concluded the Commercial Laws contain no provisions for indemnification or contribution amongst accommodation in-dorsers, once the presumption of La.R.S. 10:3-414(2) is overcome, we must look to other areas of Louisiana law which may apply to the instant case. La.R.S. 10:1-103 provides: “Unless displaced by the particular provisions of this title, the other laws of Louisiana shall apply.”

When Daigle and Chaisson signed the note as accommodation indorsers and guarantors, they contracted to become soli-dary sureties for the principal debtor. La. C.C. Article 3035, C. I. T. Corporation v. Rosenstock, 205 So.2d 81 (La.App. 4th Cir. 1967). Moreover, the U.C.C. Official Comment to Section 3-415 states: “an accommodation party is always a surety (which includes a guarantor), and it is his only distinguishable feature.”

Our Louisiana law of suretyship expressly recognizes the right of a surety who has paid the primary debt to seek recourse from other co-sureties. La.C.C. Article 3058 provides:

“When several persons have been sureties for the same debtor and for the same debt, the surety who has satisfied the debt, has his remedy against the other sureties in proportion to the share of each; but this remedy takes place only, when such person has paid in consequence of a lawsuit instituted against him.”

Our Supreme Court has recently applied these rules of suretyship to accommodation indorsers. In Aiavolasiti v. Versailles Gar-densLand Development Co., 371 So.2d 755 (La.1979), five stockholders of a corporation, including Aiavolasiti, executed a separate continuing guarantee binding themselves in solido with the corporation for the latter’s debts. The corporation issued two notes, the first signed only by the corporation, while the second was signed by the five guarantors, plus a sixth stockholder as accommodation indorser. When the corporation defaulted, and the bank made demand on the stockholders under their guaranties, plaintiff, one of the guarantor stockholders, bought both notes. Then he sued the corporation and the five other stockholders. A default judgment was obtained against the corporation. Relying on La.C.C. Article 3058, the Supreme Court awarded plaintiff, on the first note, contribution from each co-surety for one-fifth of the amount plaintiff paid, representing the virile share of each surety. On the note where six parties had signed as accommodation indorsers, the Supreme Court, again applying the rules of suretyship, awarded plaintiff contribution of one-sixth of the amount paid as the virile share of each indorser. On each note, the corporation was excluded from the calculation of the virile share.

The facts in the instant case are substantially identical to those involving the second note in Aiavolasiti, supra. As in Aiavolasiti, the accommodation indorsers and guarantors in the present case bound themselves in solido with the debtor. Thus, with respect to the bank, the indorsers were co-debtors in solido. The legal relationship between the accessory obligors, however, is governed by the rules of suretyship, absent a clear intention to be bound as solidary obligors even among themselves. We find no such intention in the present case. Following Aiavolasiti, we conclude that plaintiff is entitled to recover Chaisson’s proportionate share of the debt under La.C.C. Article 3058. There being three accommodation indorsers, plaintiff is entitled to recover from Chaisson one-third of the amount he paid in satisfaction of the debt.

We are aware of the proviso in LSA-C.C. Article 3058 that a surety can seek contribution from the other sureties only “when such person has paid in consequence of a lawsuit instituted against him.” However, in Aiavolasiti, supra, footnote 7 at page 758 the court stated:

“Although this article permits contribution only if the debt was paid in consequence of a lawsuit, this does not prevent plaintiff’s recovery in the present suit. Contribution is permitted even if the debt was not paid in response to a lawsuit provided that the co-sureties had knowledge that the debt was due or consented to the payment. Leigh v. Wright, 192 La. 224, 187 So. 649 (1939). The other guarantors clearly had knowledge that the debt was due in the present case, and no possible defense was suggested at trial. Moreover, since all of the guarantors were bound in solido with the principal debtor, there is no reason to require the delay pending lawsuit. See, Louisiana Bank and Trust Co., Crowley v. Boutte, 309 So.2d 274, 279 (La.1975).”

In the present case, as in Aiavolasiti, no case was filed against the plaintiff, but the co-surety from whom he seeks contribution knew that the debt was due and also urged no defense to the debt at trial. Moreover, in the present case, as in Aiavolasiti, the co-surety guarantors are bound in solido with the principal debtor.

In his claim for indemnification, plaintiff seeks, in addition to the amount he paid, reasonable attorney’s fees. However, in his alternative claim for contribution, no demand for attorney’s fees is made. Thus, we decline to award plaintiff any attorney’s fees in the present case.

For the reasons assigned, the judgment appealed is reversed and set aside. It is now ordered, adjudged and decreed that there be judgment herein in favor of plaintiff, Alvin Daigle, and against the defendant, David D. Chaisson, for the sum of $2,511, together with legal interest thereon from date of judicial demand until paid and for all costs of these proceedings both in the trial and appellate courts.

REVERSED AND RENDERED.


source: Caselaw Access Project

author: FORET, Judge. SWIFT, Judge,

license: Public Domain

text:
    Alton GUIDRY, Plaintiff-Appellant, v. HOUSTON GENERAL INSURANCE COMPANY, Defendant-Appellee.
    No. 8059.
    Court of Appeal of Louisiana, Third Circuit.
    March 11, 1981.

      Voorhies & Labbe, Richard C. Broussard, Lafayette, for plaintiff-appellant.
    Allen, Gooch & Bourgeois, Frank Flynn, Lafayette, for defendant-appellee.
    Before CULPEPPER, FORET and SWIFT, JJ.
   FORET, Judge.

This is an “executive officer” tort action. Alton Guidry (Plaintiff) is seeking to recover damages for personal injuries sustained while operating a bulldozer belonging to the St. Martin Parish Police Jury (Police Jury). Houston General Insurance Company (Defendant) is the Police Jury’s liability insurer, and only defendant. The action was tried by a jury which found no negligence on the part of certain “executive officers” of the Police Jury. Plaintiff appeals and presents two issues:

(1) Whether the trial court erred in allowing certain hearsay evidence as to statements made by a deceased person to be introduced over the objection of the plaintiff, and
(2) Whether the trial court erred in refusing to give certain instructions to the jury as requested by the plaintiff.

FACTS

Plaintiff was employed by the Police Jury for approximately ten years before the occurrence of the accident giving rise to this action. Plaintiff was operating a bulldozer owned by the Police Jury on July 17, 1975 and was attempting to dismount from that machine when he slipped and fell, fracturing his right leg. He further suffered a relatively rare complication of that type of injury known as “causalgia”.

Plaintiff instituted this action on July 16, 1976, alleging that the Police Jury and certain of its employees had been given knowledge that a hazardous condition existed with respect to the above-mentioned bulldozer and that they had failed to correct that condition. Specifically, plaintiff alleged that the addition of expanded metal screens to the sides of the cab of the bulldozer made it very difficult to enter or exit therefrom and created the hazardous condition.

The metal screens were added to the cab to protect the operator while clearing trees. There were handholds provided on the left side of the machine to aid the operator in getting on and off of it. However, the addition of the screens made it fairly difficult, though not impossible, to exit or enter from the left side, and the operators, including plaintiff, started to do so from the right. There were no handholds, as such, on the right side, and plaintiff was injured while dismounting from that side.

The first trial of this matter ended with a mistrial being declared because of an acute illness suffered by plaintiff which made it impossible for him to proceed. The second trial resulted with the jury returning a verdict in favor of the defendant. Plaintiff then brought this devolutive appeal.

ADMISSION OF THE HEARSAY EVIDENCE

Sylvain Melancon, one of the alleged “executive officers” of the Police Jury, testified for plaintiff at the first trial. Plaintiff, at that trial, attempted to call this witness as an adverse party under the rule of cross-examination. However, the trial court held that since plaintiff had failed to join Sylvain Melancon as a defendant, he had to be called as plaintiff’s own witness. Plaintiff was still able to elicit somewhat favorable evidence from him, though.

However, shortly before the second trial, he died, and his testimony given at the first trial was read into the record at plaintiff’s request. Defendant then sought to impeach this witness by the use of certain hearsay statements made by him to three different persons approximately one week before the trial.

Plaintiff objected to the introduction of this evidence arguing that it was hearsay and didn’t fall under any of the exceptions to the hearsay rule. He further argued that if the exception relied upon by defendant was that of a “prior inconsistent statement”, then defendant could not lay the proper foundation for its introduction as Sylvain Melancon was dead.

Defendant, on the other hand, argued that the hearsay statements which it was attempting to introduce were “declarations against interest” made by the deceased witness.

The trial court overruled plaintiff’s objection and allowed the introduction of the hearsay statements finding that they were “declarations against interest”. The record also indicates that, in addition, the trial court believed that the statements taken as a whole could be considered “prior inconsistent statements”.

Plaintiff argues, in this Court, that the defendant failed to lay the proper foundation for the introduction of the hearsay statements as “prior inconsistent statements”. Plaintiff cites LSA-R.S. 15:493 and State v. Reed, 290 So.2d 835 (La.1974) in support of his argument. The Supreme Court in State v. Reed, supra, stated, on page 837, with respect to LSA-R.S. 15:493, that:

“This article has always been strictly construed. The proper foundation must be laid. State v. Rogers, 256 La. 447, 236 So.2d 795 (1970). There has been no exception for the death of a witness; De-masi v. Whitney, 176 So. 703 (Orleans La.App.1937), or for rebuttal evidence, State v. Augusta, 199 La. 896, 7 So.2d 177 (1942). This is also the general rule in the rest of the country as pointed out by McCormick in the 2d ed. of Evidence, § 37, note 52. See Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409 (1895).
The admission of the statement was reversible error because the codal requirement of laying the proper foundation was not complied with. The jurisprudence has construed this to mean there are no exceptions to this rule, not even for the death of a witness. The error was compounded by the fact that the statement was unsworn. C.Cr.P. Art. 776, State v. Bussey, 162 La. 393, 110 So. 626 (1926).”

Admittedly, the court’s ruling in Reed was made in the context of a criminal proceeding where constitutional considerations such as the defendant’s right to confront the witnesses against him were involved.

The law regarding the hearsay rule and its exceptions as applied in civil cases is by no means settled in this State. There are those who argue that in a situation like the one before us, when a witness has died and his testimony from a prior proceeding is introduced into evidence in the retrial of a matter, then the requirement of laying a foundation to introduce “prior inconsistent statements” of that witness for purposes of impeachment should be relaxed. This argument is especially strong where the party offering the hearsay impeachment evidence had no notice of the existence of that evidence at the time the first proceeding was held. See Louisiana Evidence Law; Pugh G., 1978 Supp., pgs. 163-164. Here, the allegedly “prior inconsistent statements” of Sylvain Melancon were made approximately one week before the second trial of this matter.

The trial court also ruled that these hearsay statements made by Sylvain Melancon were “declarations against interest” and, therefore, admissible under the exception to the hearsay rule. “Traditionally, to qualify under the declaration against interest exception to the hearsay rule, a statement must have been made by a person now unavailable, with respect to a matter as to which he had firsthand knowledge, and so much against his pecuniary and proprietary interest that a reasonable person under the circumstances would not have made the statements unless he believed it to be true.” See Louisiana Evidence Law; Pugh G., 1978 Supp., pg. 535; Demasi v. Whitney Trust & Savings Bank, 176 So. 703 (La.App. Orl. Cir. 1937).

We find that it was error for the trial court to allow the hearsay statements into evidence. The statements testified to by defendant’s witnesses can only be described as ambiguous at best. They reflect that Sylvain Melancon was unsure as to whether the testimony he had given at the first trial was correct. Further, the statements, as testified to, failed to constitute “declarations against interest”.

We find, in addition, that the statements failed to constitute “prior inconsistent statements” and were inadmissible as such even if defendant could have laid the proper foundation for their introduction.

Defendant argues that if this Court should find that the hearsay evidence was inadmissible, we should consider its admission to be harmless error and cites Succession of Land, 212 La. 103, 31 So.2d 609 (1947) where the court stated, on page 31 So.2d 620:

“John R. Land, Jr., contended that during the trial in the lower court considerable parol evidence was admitted, largely hearsay or self-serving declarations purporting to have been made by parties deceased. This contention presents little or nothing for review. Even if we concede that the evidence of which he complained was improperly adduced and should not be considered or given any weight, in our opinion there is sufficient competent evidence in the record to enable us to reach the conclusion to which we have come, and all the evidence to which he objected could be disregarded entirely, and yet the same result would be reached in this decision.”

We note that the Supreme Court in Land, supra, did come to its own decision after a thorough opinion dealing with the facts present there and the applicable law.

We have reviewed the evidence presented to the jury and feel it necessary to reiterate the well-established jurisprudential rules applicable to a review of their verdict.

“When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review, the appellate court should not disturb this factual finding in the absence of manifest error.” Canter v. Koehring Company, 283 So.2d 716 (La.1973).

Therefore, the appellate review of facts is not completed by reading so much of the record as will reveal a reasonable factual basis for the finding in the trial court; there must be a further determination that the record establishes that the finding is not clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Doffle-myer v. Gilley, 384 So.2d 435 (La.1980).

Our review of the extensive record in this case, eliminating altogether the hearsay evidence of which the plaintiff complained, establishes that the jury’s finding of no negligence on the part of the above-mentioned “executive officers” of the Police Jury is not clearly wrong.

This determination is based on a number of factors such as, the plaintiff had alternative methods of dismounting from the bulldozer; and, while the suggested safety devices (such as handholds, etc.) of certain engineering groups or societies were nonexistent on the right side of the bulldozer, there were other objects (such as levers and pedals) that could have been used for the same purposes.

The trial jury in this case had an opportunity and did view the bulldozer for itself, and apparently did not consider it to be a hazard to the operators thereof. We further note that defendant’s expert witness, a large man, was able to mount and dismount from the bulldozer on the left side where safety features were present.

Finally, plaintiff argues on appeal that it was improper for the trial judge to allow the introduction of this hearsay evidence because plaintiff had no advance warning from the defendant that it would do so and, at the very least, the trial court should have granted plaintiff a recess so that he could depose these witnesses.

Plaintiff cites no authority for his proposition that an opposing party must give advance warning of its intent to use hearsay evidence to impeach a witness and we find that there is no such requirement. Further, there is no authority for the proposition that a trial court must recess a trial to allow a party to depose witnesses that it has learned will testify for purposes of impeachment.

THE JURY INSTRUCTIONS

Plaintiff argues that it was error for the trial court to refuse to give certain of his instructions to the jury.

In a jury trial, the judge is not required to give the precise instructions submitted by either party, but he must give instructions which properly reflect the law applicable in light of the pleadings and facts in each particular case. If instructions concerning negligence and liability are confusing or misleading, or omit an applicable essential legal principle, such instructions constitute reversible error. Gonzales v. Xerox Corporation, 320 So.2d 163 (La. 1975); Beck v. Lovell, 361 So.2d 245 (La. App. 1 Cir. 1978), writ denied, 362 So.2d 802 (La.1978).

Plaintiff sought to have the trial court give the following two instructions to the jury:

1. “Some of the Police Jury personnel in the case have argued that they have no knowledge of a dangerous condition on the dozer. The fact that they may have lacked such knowledge will not excuse them from liability if they had a duty to make themselves aware of such conditions. This is to say that if it is proven to you that it was the duty of one or more of the executive officers to be aware of the condition of the dozer, then failure of such officer to have such knowledge may be considered as evidence of negligence.” 2. “An employee cannot be expected to harass or pester his employer or supervisor with demands for changes in the working environment because he may suffer loss of his job or decrease in the likelihood of promotion.”

The trial court, prior to instructing the jury, noted plaintiff’s objection to its alleged failure to include these particular ones therein. The trial, court then overruled the objection, stating:

“The court overrules the objections on the basis that the charges requested are either already included in the court’s general charge or as submitted place undue emphasis on certain factors in the case or in the opinion of the court are incorrect statements of the law.”

The record reflects that, as to plaintiff’s first requested charge set out above, the trial court instructed the jury as follows:

“Even if you find that these three men — Carroll Fuselier, M. G. Greig, Syl-vain Melancon or any of them are executive officers under the insurance policy, the defendant still is not necessarily liable to plaintiffs solely because of that fact. For such liability to exist, you must be satisfied that the St. Martin Parish Police Jury owed a duty of care to Alton Guidry and the breach of this duty was the cause of his injury; the duty owed Mr. Guidry was delegated by the police jury to the executive officer or officers in question; the executive officer or officers breached this duty through their own personal negligence or if the executive officer or officers further delegated this duty to a subordinate employee they knew or should have known the subordinate breached the duty.” (Emphasis ours.)

The second instruction requested by plaintiff would have gone to the issue of whether plaintiff was contributorily negligent in causing the injury he suffered. Plaintiff apparently formulated that instruction from a line of jurisprudence characterized by such cases as Coon v. Blaney, 353 So.2d 744 (La.App. 3 Cir. 1977), writ denied, 355 So.2d 263 (La.1978); and, O’Keefe v. Warner, 288 So.2d 911 (La.App. 1 Cir. 1973), writ denied, 293 So.2d 170 (La.1974).

The jury in this case found no negligence on the part of defendant’s insured and, therefore, never reached the issue of plaintiffs contributory negligence. We find that the failure of the trial court to give this precise instruction as requested had no effect on the outcome of this action.

For the above and foregoing reasons, the judgment of the trial court is affirmed.

Costs of this appeal are assessed against plaintiff-appellant.

AFFIRMED.

SWIFT, J., concurs and assigns reasons.

CULPEPPER, J., concurs for the reasons assigned by SWIFT, J.

SWIFT, Judge,

concurring.

I agree that the trial judge erred in admitting in evidence the out-of-court statements made by the deceased witness Melancon. Under the circumstances I do not believe that any weight should be attached to the jury’s verdict on appellate review. However, eliminating the inadmissible evidence and without giving any weight whatever to the jury verdict, the record reflects that the plaintiff failed to establish negligence on the part of the so-called executive officers of the police jury which proximately caused the accident. Ragas v. Argonaut Southwest Insurance Co., 388 So.2d 707 (La.1980).

      . “§ 493. Foundation for proof of contradictory statement
      Whenever the credibility of a witness is to be impeached by proof of any statement made by him contradictory to his testimony, he must first be asked whether he has made such statement, and his attention must be called to the time, place and circumstances, and to the person to whom the alleged statement was made, in order that the witness may have an opportunity of explaining that which is prima facie contradictory. If the witness does not distinctly admit making such statement, evidence that he did make it is admissible.”


author: DOUCET, Judge.

text:
    Cleophile BABINEAUX, Jr., Plaintiff-Appellee, v. David BLACK, Sr., David Black, Jr., d/b/a Black’s Agricultural Advisory Service, Defendants-Third Party Plaintiffs-Appellees, Recreatives Industries, Inc., Third Party Defendant-Appellant, Champion Spark Plug Company and Chaparral Division of Armco Recreational Products, Inc., Third Party Defendants.
    No. 8063.
    Court of Appeal of Louisiana, Third Circuit.
    March 11, 1981.

      Voorhies & Labbe, Marc W. Judice, Lafayette, and Sanders, Downing & Kean, G. William Jarman, Baton Rouge, for defendants-appellants.
    Miller, Miller & Craton, John F. Craton, Crowley, for plaintiffs-appellees.
    Before DOMENGEAUX, STOKER and DOUCET, JJ.
   DOUCET, Judge.

Cleophile Babineaux, Jr. brought this red-hibitory action against David Black, Sr. and David Black, Jr., d/b/a Black’s Agricultural Advisory Service, to rescind a sale of an all terrain vehicle, commonly referred to in this area as a “marsh buggy”. The defendants answered and filed a third party demand against Recreatives Industries Inc., the manufacturer of the marsh buggy, seeking indemnification for any judgment rendered against it and attorney’s fees. Recreatives Industries Inc., in turn, filed a third party demand for indemnification against Champion Spark Plug Company and the Chaparral Division of Armco Recreational Products, Inc., the manufacturer of the marsh buggy’s engine.

Following a trial, judgment was rendered in favor of plaintiff and against the defendants, rescinding the sale and awarding him the return of the purchase price, the expenses of the sale, and his repair costs. Judgment was also rendered in favor of the defendants on their third party demand against Recreatives Industries, awarding them indemnification and a $2,000.00 attorney’s fee. Recreatives Industries’ third party demand, which had been settled prior to trial, was dismissed.

The only issue on appeal is whether the trial court erred in rendering judgment in favor of the defendants on their third party demand.

The record reveals the following relevant facts. In September 1976, the defendants sold plaintiff a RIM ATV 46 horsepower marsh buggy, which had been manufactured by Recreatives Industries Inc. On the day following the sale, its engine began to malfunction. Plaintiff consulted David Black, Jr., and it was determined that the malfunctioning was caused by a fouled spark plug. Plaintiff replaced the spark plug with one that he obtained from Black, correcting the problem temporarily. However, the spark plugs continued to become fouled after the engine had been run as little as fifteen minutes.

The defendants made numerous fruitless attempts to repair the engine. David Black, Jr. testified that despite many hours of testing and adjusting the engine and several calls to the manufacturer for technical advice, he was unable to find the source of the problem. Eventually, the defendants replaced the engine with a new one of the same type that they had in stock. However, plaintiff experienced the same difficulties with the new engine. On September 28, 1977, he returned the vehicle to the defendants, and this suit followed.

On appeal, Recreative Industries has not challenged the trial judge’s conclusion that the marsh buggy was defective. However, it argues that the evidence does not support a finding that it was defective when it left its control. In support of that argument it relies heavily upon the fact that the defendants did not produce the original engine for its inspection prior to trial, contending that it must presume that this evidence would have been detrimental to the defendant’s case.

It is true that under a long line of jurisprudence, the failure of a litigant to produce evidence within his reach raises the presumption that the evidence would have been detrimental to his case. Martin v. T. L. James & Company, Inc., 237 La. 633,112 So.2d 86 (1959); Rodriguez v. Northwestern National Insurance Company, 358 So.2d 1237 (La.1978); Tubesales v. Champion Machine Works, Inc., 281 So.2d 459 (La.App. 4th Cir. 1973). However, this presumption is not applicable when the failure to produce the evidence is explained. Monk v. Monk, 243 La. 429, 144 So.2d 384 (1962); Veillon v. Sylvester, 174 So.2d 189 (La. App.3rd Cir. 1965).

David Black, Jr. testified that after he had removed the original engine, he disassembled it to facilitate further testing and then discarded the parts. The defendants were unsure of the whereabouts of the engine at the time of the trial. However, David Black, Sr. stated that he thought it might be in a pile of other junked engines on their business premises. When questioned about why they did not return the original engine to the manufacturer, the defendants testified that they had not wanted to deprive plaintiff of the use of the vehicle while the manufacturer attempted to repair it. Due to the great inconvenience that he had already suffered, they elected to replace the engine at their own costs.

We believe that this testimony fully explains the defendants’ failure to preserve the original engine as evidence. When the engine was discarded, this suit had not been filed, and the defendants obviously thought that installing the new engine would solve the problem to plaintiff’s satisfaction. Under these circumstances, we conclude that the presumption urged by Recreatives Industries is not applicable to this case.

We note that Recreatives Industries also relies on the testimony of its witnesses concerning its quality control measures, which are designed to detect the existence of defects in its products. That testimony does not conclusively exclude the possibility that the defect existed when the marsh buggy was delivered to the defendants, however. In view of the fact that the defect manifested itself shortly after the sale, when the defendants had performed only routine new vehicle servicing, we cannot say that the trial judge was clearly wrong in concluding that the marsh buggy was defective when it left the manufacturer’s control.

Alternatively, Recreatives Industries argues that even if the award of indemnification was correct, the trial court erred in awarding attorney’s fees, because the defendants failed to prove the value of their attorney’s services. This argument is apparently based on the fact that the defendants did not introduce expert testimony concerning the value of those services.

Expert testimony may be used as a guide in fixing the value of legal services, but it is not necessarily controlling. When the services are rendered under the eyes of the court, the trial judge is fully able to estimate their value. Sokol v. Bob McKin-non Chevrolet, Inc., 307 So.2d 404 (La.App. 4th Cir. 1975); Prentice v. McGowen, 346 So.2d 1361 (La.App. 3rd Cir. 1977). Accordingly, we find no merit in the argument that the trial judge erred in awarding attorney’s fees.

For these reasons, the judgment of the trial court is affirmed. All costs of this appeal are taxed to the appellant, Recrea-tives Industries Inc.

AFFIRMED.


text:
    Donald L. COLLINS, Plaintiff and Appellant, v. Doris C. CRANFORD et al., Defendants and Appellees.
    No. 8076.
    Court of Appeal of Louisiana, Third Circuit.
    March 11, 1981.
    Gahagan & Gahagan, H. C. Gahagan, Jr., Natchitoches, for plaintiff and appellant.
    Whitehead & McCoy, Charles R. Whitehead, Jr., Natchitoches and Horton & Jones, Donald Horton, Jr., Coushatta, for defendants and appellees.
    Before CULPEPPER, FORET and SWIFT, JJ.
   CULPEPPER, Judge.

Plaintiff-lessee brings this action for a declaratory judgment decreeing the existence and validity of an agricultural lease on property owned by the defendants-lessors. In their answer, defendants denied the existence of the lease. In the alternative, in the event the court finds there is a lease, defendants by reconventional demand seek judgment declaring the lease terminated by failure of plaintiff to maintain the property in good condition as required by the lease. The trial court found plaintiff did in fact have a valid lease. However, on the recon-ventional demand, the court declared the lease dissolved due to plaintiff’s failure to maintain the property in good condition. Plaintiff appeals.

On appeal, plaintiff’s principal contention is that defendants’ reconventional demand for dissolution of the lease should be rejected because defendants did not put plaintiff in default for the passive breach of the lease.

The evidence shows that in early 1978 plaintiff had expressed an interest in leasing approximately 214 acres of farm land located in Natchitoches Parish owned by his grand-uncle, Claude Collins. A verbal lease agreement was reached between the parties in March of 1978. Mr. Claude Collins, who was 90 years of age at the time, directed his son, Rhese Collins, to prepare a written lease reflecting the verbal contract made with plaintiff. The lease was to be for a term of five years with yearly rentals of $600. The lease was written and it was signed by Rhese Collins as agent for Claude Collins. It was not recorded, and the original is not in evidence, but a photo copy is in the record.

Claude Collins died on December 31,1978. While the lease was still in force, plaintiff learned that the heirs of Claude Collins intended to sell the property under lease. Plaintiff attempted unsuccessfully on several occasions to obtain the original draft of the lease agreement from Rhese Collins so that he could record it. When later informed by defendants that no valid lease existed, plaintiff brought this action for a declaratory judgment decreeing the existence and enforceability of the lease.

The trial judge correctly found there was a valid lease agreement between plaintiff and Claude Collins in March of 1978. However, he found this lease was terminated by plaintiff’s failure to comply with its terms. The pertinent provision of the lease agreement reads as follows:

“The lessee agrees that the cultivation of any hay crop and maintenance of the pastures will be done in a good, husband-like manner, and he will carefully, faithfully guard and protect the said premises, buildings, gates, fences, shrubbery and all other improvements from all damage and depredation of animals. Lessee further agrees to maintain said property in a good state of repair, including all improvements thereon, including periodic seeding, bushhogging.”

Testimony introduced by defendants described a general deterioration in the condition of the land since the beginning of plaintiff’s lease. According to the defendants, much of the area leased to plaintiff is now grown over with weeds and bushes. Several fences were down or in a state of disrepair and the levee area had been weakened by erosion and potholes. Many areas, including some roads, appeared as if they had not been bushhogged for several years. The district judge found that the major consideration for the lease agreement was that stated in the provisions whereby the lessee agreed to maintain the premises in good condition. The court concluded plaintiff had failed to comply with the terms of the lease. We have no difficulty in concluding, as did the trial court, that plaintiff breached the lease agreement.

Plaintiff’s failure to do what he agreed to do under the lease agreement was a passive breach, LSA-C.C. Article 1931. Plaintiff was entitled to be put in default for this passive breach. See LSA-C.C. Article 1933 which requires a putting in default for passive breach, except in certain types of contracts not applicable here. See also Hibbert v. Mudd, 294 So.2d 518 (La. 1974) and Wilson v. Sun Oil Company, 290 So.2d 844 (La.1973) applying this rule to oil and gas leases, and Noel Estate v. Louisiana Oil Refining Corporation, 188 La. 45, 175 So. 744 (1937), and Inabnett v. Pruett, 229 So.2d 150 (La.App. 2d Cir. 1969) involving leases of buildings. We are aware that the requirement of a putting in default has been criticized as not required by the articles of the Civil Code except where damages are sought, as being unnecessary where suit is filed for dissolution, and as being vague. See the concurring opinion by Justice Barham in Hibbert v. Mudd, supra, and the discussion in Levasseur, Precis In Conventional Obligations A Civil Code Analysis, pages 73-74. Nevertheless, we are bound by the cited jurisprudence in which our Supreme Court has applied the rule to leases.

The trial judge reasoned that when plaintiff filed the instant action for declaratory judgment he waived any rights he may have had to be placed in default. We pre-termit this issue. We conclude that even if the filing of this suit did not waive putting in default, clearly plaintiff’s failure to urge this defense by answer or exception to defendants’ reconventional demand did waive it.

In plaintiff’s original petition for declaratory judgment, he alleges the written lease and prays for declaratory judgment decreeing the lease “valid and enforceable ... and that there be judgment fixing and determining the rights, status and other legal relations existing between and among the parties to this litigation.” In their answer, defendants deny the existence of a lease. In the alternative and in the event the court finds a lease existed, defendants seek by reconventional demand a judgment declaring the lease dissolved for failure by plaintiff to maintain the premises in a good condition as required by the lease. In plaintiff’s answer to the reconventional demand, he made a general denial of the allegations that he had failed to maintain the premises in good condition in compliance with the lease. He did not urge by answer or by exception the defense that defendants’ reconventional demand for dissolution of the lease should be rejected for failure of defendants to put plaintiff in default for a passive breach of the lease. Actually, plaintiff did not urge this defense until he filed his appellate brief.

Although we find no case precisely in point, we conclude that even if plaintiff did not waive being put in default by filing this suit for declaratory judgment, he certainly waived it by failing to urge this defense by answer or exception to defendants’ recon-ventional demand. The issue of plaintiff’s failure to perform was clearly raised in the reconventional demand and plaintiff’s only response was to deny it on the merits.

In the somewhat similar case of Fortenberry v. Dixie Brewing Company, Inc., 368 So.2d 1240 (La.App. 4th Cir. 1979) the plaintiff beer distributor, sought a declaratory judgment that its distributorship contract with the defendant was valid and enforceable. The defendant brewer answered denying the existence of a valid contract and urging unsatisfactory performance by plaintiff as a breach of any such contract. The court found the issue of breach of the contract was properly before it under the pleadings in the suit for declaratory judgment. The issue of putting in default was not raised or discussed.

Also in the similar case of Orleans Parish School Board v. Manson, 241 La. 1029, 132 So.2d 885 (La.1961) the plaintiff sought declaratory judgment to determine whether it had a merchantable title to certain lots donated by defendant’s ancestors in title for school purposes. The defendants filed a reconventional demand for judgment declaring the rescission of the donation by reason of plaintiff’s failure to perform the requirement of the donation that the property be used for public school purposes. The Supreme Court held that the reconven-tional demand was responsive to the issues presented in the plaintiff’s petition for declaratory judgment, and thus the issue of revocation of the donation was before the court. Putting in default was not even discussed.

For the reasons assigned, the judgment appealed is affirmed. All costs of this appeal are assessed against the plaintiff-appellant.

AFFIRMED.


author: FORET, Judge.

text:
    I.D.C., INC., Plaintiff-Appellant, v. McCAIN-WINKLER PARTNERSHIP et al., Defendants-Appellees.
    No. 8077.
    Court of Appeal of Louisiana, Third Circuit.
    March 11, 1981.
    Cook, Yancey, King & Galloway, Herschel E. Richard, Jr. and James R. Jeter, Shreveport, for plaintiff-appellant.

      John G. Williams and Watson, Murchison, Crews, Arthur & Corkem, William P. Crews, Jr., Natchitoches, for defendants-ap-pellees.
    Before CULPEPPER, FORET and SWIFT, JJ.
   FORET, Judge.

The sole issue before this Court on appeal is whether the trial court properly ordered a stay of these proceedings and directed the parties to arbitration.

I.D.C., Inc. (Plaintiff), in essence, asserted two causes of action in the court below. First, it sought recovery for damages arising from an alleged breach of a contract between it and defendants, McCain-Winkler Partnership, a Louisiana commercial partnership which has its principal place of business in Natchitoches Parish, and its members, Harold L. McCain, Jr. and Frank A. Winkler.

Then, by an amended petition, plaintiff asserted an alternative cause of action against George W. Minturn, the architect involved herein, and his professional liability insurer, Continental Casualty Company (Continental). The basis of plaintiff’s alternative cause of action is that George Min-ium was an alleged agent of the above mentioned partnership and its members who exceeded his authority.

The partnership and its members reconvened against the plaintiff for damages alleging numerous defects in the construction work. These parties also brought a third party demand against George Minturn and Continental alleging that certain acts of Minturn were unauthorized.

An action entitled Natchitoches Electric, Inc. v. Harold L. McCain, Jr., et a 1, Docket Number 45,854, in the Tenth Judicial District Court was consolidated for trial with this suit by joint motion of all parties.

FACTS

Plaintiff and McCain-Winkler Partnership entered into a written contract on January 4, 1978. Plaintiff was the general contractor who agreed to construct a restaurant (now the Captain’s Galley) for the partnership with the basis of payment to be the cost of work plus 15% for overhead and profit. The contract provided that the maximum cost to the partnership would be no more than $250,000.00.

George Minturn was the architect on this project. Plaintiff alleged that as soon as construction on the project started, the partnership and the architect began making changes in the construction plans which ultimately resulted in the total cost of the project plus 15% being placed at $381,-180.00. The partnership paid plaintiff $200,224.00.

Plaintiff instituted this action on May 28, 1979, seeking to recover the difference between final cost of the project and the amount which it was paid. Trial of this matter was set for August 4, 1980, and pre-trial conferences were held.

The trial date ápproached, and on the morning on which it was to begin, the various parties, except for plaintiff, made application to the trial court for an order staying the proceedings. The parties alleged that there were existing contractual provisions requiring an arbitration of the issues.

The trial court gave counsel time to study the law and present their arguments to the court. That afternoon, counsel and their clients appeared in open court before the trial judge so that a transcript could be made of the proceedings, and the court then gave its ruling staying the proceedings and directing the parties to proceed with arbitration in accordance with their agreements. Plaintiff appeals from that ruling.

THE STAY ORDER

Plaintiff contends that the trial court erred in granting defendants’ application for a stay order and bases its contention on two principal arguments: First, that defendants waived their right to demand arbitration by their resort to judicial proceedings connected with plaintiff’s principal demand herein; and Second, that defendants’ failure to include the existence of a contractual provision requiring arbitration as a ground for the dilatory exception of prematurity which they filed constitutes a waiver of their right to demand arbitration thereafter.

We note at the outset that there is no contract between plaintiff and George Minturn (the architect) requiring arbitration of disputes arising between them. Therefore, we find that the trial court erred in staying the proceedings brought by plaintiff against this defendant.

Our use of the term “defendants” throughout the rest of this opinion will only refer to the partnership and its members. There is a written contract between plaintiff and defendants which does require a submission to arbitration of certain disputes arising between them.

The trial court, in making its ruling, relied on the decision of the Supreme Court in Bartley, Inc. v. Jefferson Parish School Board, 302 So.2d 280 (La.1974) and LSA-R.S. 9:4201 which it held required a stay of the proceedings and an order to arbitrate “when the parties had agreed to arbitrate save upon such grounds as exist at law such as for the revocation of a contract”.

Bartley, supra, was an action brought by a contractor against one of its subcontractors and the school board to compel arbitration of a dispute arising out of a building contract. The subcontractor and school board resisted arbitration and filed exceptions of no cause of action and of prematurity. The court found that there was a contract between the parties and, therefore, overruled the exception of no cause of action. The court then proceeded to discuss the defendants’ exception of prematurity. The basis for the above mentioned dilatory exception was that plaintiff had failed to follow the procedures as set out in the contract between the parties for settling disputes by arbitration. Defendants also contended that Bartley (plaintiff in that action to compel arbitration) had waived its right to arbitrate under the contract.

The court in Bartley, supra, with respect to the above mentioned claim, stated, on page 283, that:

“We do not reach the merits of these claims of prematurity and waiver. We determine only that these questions of procedural arbitrability should not be decided by the courts, without having been submitted to the arbitrator, when a party sues to enforce an arbitration agreement.
As noted earlier, Section 4203 of the Louisiana Arbitration Law requires a court to order arbitration, once it finds that there has been an agreement to arbitrate and a failure to comply therewith. Since these triable issues have been here determined in favor of arbitration, the court must order arbitration. The issues of waiver and prematurity address themselves to the arbitrator. They cannot be utilized to prevent the aggrieved party from securing an order directing arbitration, as required by Section 4203. See Domke on Commercial Arbitration, Sections 17.01, 17.02 (1968).”

We find that Bartley, supra, can be distinguished from and is inapposite to the action before us for the following reasons: First, plaintiff in Bartley, supra, was specifically seeking to compel arbitration, whereas, plaintiff in this action seeks to recover damages for breach of contract and unauthorized acts of an agent. Second, defendants in Bartley, supra, base their attempt to resist arbitration (through the dilatory exception of prematurity and waiver) on a failure of the plaintiff there to comply with the procedure as set out in the contract between those parties for submitting their disputes to arbitration (the question of procedural arbitrability referred to by the court in the passage taken from Bartley, supra, and reproduced above).

Here, plaintiff resists defendants’ attempt to compel arbitration by arguing that defendants waived their right to do so by (1) their resort to judicial proceedings and (2) their failure to raise the issue of arbitration by a dilatory exception of prematurity. There is no contention by plaintiff that defendants failed to follow the procedures set out in the contract between them for settling disputes by arbitration. Therefore, the issues raised by plaintiff in resisting defendants’ attempt to compel arbitration cannot be characterized as giving rise to questions of procedural arbitrability as were the issues in Bartley, supra.

We find that the trial court erred in relying on Bartley, supra, in issuing its stay order.

Plaintiff cites Standard Company of New Orleans, Inc. v. Elliott Construction Company, Inc., 363 So.2d 671 (La.1978) where the court did indeed go on to decide the issue of whether a party to the action had waived its right to require arbitration. Elliott, supra, was an action in which.the plaintiff was seeking to compel arbitration of disputes which had arisen between it and the defendants.

We find that Bartley, supra, and Elliott, supra, characterize a line of jurisprudence that is based on actions to compel arbitration and, therefore, inapplicable to the action before us. Our finding is supported by Elliott, at page 677, where the court states that:

“R.S. 9:4203[] requires a Louisiana court, at the request of an aggrieved party, to order the parties to arbitration in accordance with the terms of their arbitration agreement after the court finds (a) that an arbitration agreement was made and (b) that the opponent failed or refused to comply. These are the only triable issues in a suit to enforce an arbitration agreement. Bartley, 302 So.2d at 281; Domke on Commercial Arbitration, § 17.02 (1968).” (Emphasis ours).

We turn now to plaintiff’s contention that defendants, by their conduct, waived their right to require arbitration. This Court, in Sim v. Beauregard Electric Cooperative, Inc., 322 So.2d 410 (La.App. 3 Cir. 1975), had before it the issue of whether a plaintiff had waived his right to require arbitration under the provisions of a contract between him and defendant, his employer. Plaintiff in Sim, supra, filed suit on October 28,1966, and after numerous pleadings had been filed in the trial court and two motions for summary judgment had been heard, plaintiff then filed a supplemental petition demanding arbitration of his dispute with defendant. Defendant answered, alleging that by filing his suit and allowing thirty-three months to elapse before demanding arbitration, plaintiff had waived his right to do so. The case was called for trial on February 16,1972, and on that morning, plaintiff filed a motion to stay the proceedings and sought an order compelling the defendant to arbitrate. This was some five years after plaintiff had instituted his action and the trial court denied the motion and proceeded to a trial of the action.

Plaintiff appealed the decision of the trial court which was unfavorable to him and, specifically, alleged as error the trial court’s finding that he had waived his right to arbitrate. However, this Court upheld the trial court's decision, stating, at pages 414, 415, that:

“The right to arbitrate given by a contract may be waived, we think, even though LSA-R.'S. 9:4201 provides than [sic] an arbitration clause is irrevocable. The waiver may be either by express words or by necessary implication. The institution of a suit by one party seeking damages for the alleged breach of such a contract is incompatible with a later demand by the same party that the dispute be settled by arbitration. We believe that the filing of such a suit by a party to the contract, without relying on the arbitration provision in that agreement, constitutes a waiver of that party’s right to demand arbitration of the dispute. Lawton v. Cain, supra; 17A C.J.S. Contracts § 515(11), page 889; 5 Am.Jur.2d, Arbitration and Award, § 51, page 556; Quinn Construction Co. v. Savoie, 207 So.2d 229 (La.App. 4 Cir. 1968); Francis I. duPont and Company v. McMikle, 230 So.2d 677 (La.App. 2 Cir. 1970).”

See also Lee v. Blackwell, 286 So.2d 185 (La.App. 4 Cir. 1973) where the issue of waiver of the right to require arbitration by both a plaintiff and defendant was resolved. The court in Lee, stated, on page 186, that:

“As a preliminary matter, our attention is directed to Article 8 of the contract, which provides that the parties will submit to arbitration every claim or dispute arising out of the contract. Plaintiff did not seek arbitration in this matter, nor has defendant interposed any exception or objection to the submission of this case to the court without prior resort to arbitration. Under these circumstances, it is clear that both parties have waived their contractual right to arbitration, and that this matter is properly before the court. Quinn Construction Co. v. Savoie, 207 So.2d 229 (La.App. 4th Cir. 1968); Law-ton v. Cain, 172 So.2d 734 (La.App. 2nd Cir. 1964).”

Plaintiff equates the filing of suit in Sim, supra, with the filing of the reconventional demand by the defendants in this case. We believe this argument has merit and that Sim, supra, is indeed applicable to the issue before us.

Plaintiff further argues that it clearly evidenced its intent not to arbitrate this matter by never making a demand for arbitration and by filing suit and that defendants clearly evidenced their intent not to have this matter arbitrated by their actions taken since the institution of plaintiff’s suit. It alleges (which allegation is verified by the record) that the defendants never mentioned arbitration, much less made a demand for arbitration until seventeen months after this lawsuit began. Plaintiff lists the following conduct by the defendants which it alleges provides ample evidence of their intention not to arbitrate:

1. The defendants never made a demand for arbitration until the morning that this case was set for trial;

2. The defendants never raised the issue of arbitration by exception or in their answer;

3. Counsel for the defendants wrote a letter to the court on April 9, 1980, requesting that the matter be set for trial;

4. The defendants sought relief from the court in the form of a reconven-tional demand for alleged defective and incomplete construction work by the plaintiff, and no demand for arbitration was made on this issue;

5. Counsel for defendants attended a pre-trial conference on June 18, 1980, wherein the trial date of the case was discussed and at that time never raised the issue of arbitration;

6. Counsel for defendants attended a pre-trial conference on July 30, 1980, where once again the matter was fully discussed and the issue of arbitration was never raised.

We hold that defendants waived their right to require arbitration under their contract with plaintiff based on the above mentioned conduct and the fact that their motion for a stay order was made at such a late hour in the proceedings.

Therefore, we pretermit any discussion of whether defendants waived their right to require arbitration by their failure to allege a contractual provision requiring arbitration as an additional ground for the dilatory exception of prematurity which they filed.

For the above and foregoing reasons, the stay order issued by the trial court herein is reversed, vacated and set aside, and the case is hereby remanded to the trial court for further proceedings consistent with our views expressed above.

All costs of this appeal are assessed against the defendants.

REVERSED AND REMANDED.

      . Natchitoches Electric, Inc. was a subcontractor on the construction project giving rise to the present action. It brought suit against the owners and general contractor alleging that these parties had failed to pay it for materials it supplied to the construction site.

      . LSA-C.C.P. Article 926 provides, in pertinent part: “... All objections which may be raised through the dilatory exception are waived unless pleaded therein.”

      . “7.9.1 All claims, disputes and other matters in question between the Contractor and the Owner arising out of, or relating to, the Contract Documents or the breach thereof, except as provided in Subparagraph 2.2.11 with respect to the Architect’s decisions on matters relating to artistic effect, and except for claims which have been waived by the making or acceptance of final payment as provided by Subparagraphs 9.9.4 and 9.9.5, shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then obtaining unless the parties mutual- , ly agree otherwise. No arbitration arising out of or relating to the Contract Documents shall include, by consolidation, joinder or in any other manner, the Architect, his employees or consultants except by written consent containing a specific reference to the Owner-Contractor Agreement and signed by the Architect, the Owner, the Contractor and any other person sought to be joined. No arbitration shall include by consolidation, joinder or in any other manner, parties other than the Owner, the Contractor and any other persons substantially involved in a common question of fact or law, whose presence is required if complete relief is to be accorded in the arbitration. No person other than the Owner or Contractor shall be included as an original third party or additional third party to an arbitration whose interest or responsibility is insubstantial. Any consent to arbitration involving an additional person or persons shall not constitute consent to arbitration of any dispute not described therein or with any person not named or described therein. The foregoing agreement to arbitrate and any other agreement to arbitrate with an additional person or persons duly consented to by the parties to the Owner-Contractor Agreement shall be specifically enforceable under the prevailing arbitration law. The award rendered by the arbitrators shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof.”

      . “§ 4201. Validity of arbitration agreements
      A provision in any written contract to settle by arbitration a controversy thereafter arising out of the contract, or out of the refusal to perform the whole or any part thereof, or an agreement in writing between two or more persons to submit to arbitration any controversy existing between them at the time of the agreement to submit, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.”

      . The contract between the parties to that action provided that all claims had to be submitted to the architect before arbitration could be had. The defendants argued that plaintiff had failed to follow this procedure and, therefore, its action to compel arbitration was premature.

      . § 4203. Remedy in case of default; petition and notice; hearing and proceedings

        The party aggrieved by the alleged failure or reñisai of another to perform under a written agreement for arbitration, may petition any court of record having jurisdiction of the parties, or of the property, for an order directing that the arbitration proceed in the manner provided for in the agreement. Five days’ written notice of the application shall be served upon the party in default. Service shall be made in the manner provided by law for the service of a summons.

        The court shall hear the parties, and upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not an issue, the court shall issue an order directing the parties to proceed to arbitration in accordance with the terms of the agreement. If the making of the arbitration agreement or the failure or refusal to perform is an issue, the court shall proceed summarily to the trial thereof.
      If no jury trial is demanded, the court shall hear and determine the issue. Where such an issue is raised, either party may, on or before the return day of the notice of application, demand a jury trial of the issue, and upon such demand the court shall issue an order referring the issue or issues to a jury called and empanelled in the manner provided by law.
      If the jury finds that no agreement in writing for arbitration was made or that there is no default in proceeding thereunder, the proceeding shall be dismissed. If the jury finds that an agreement for arbitration was made in writing and that there is a default in proceeding thereunder, the court shall issue an order summarily directing the parties to proceed with the arbitration in accordance with the terms thereof. (Emphasis ours)

      . See footnote 4, supra, for text of LSA-R.S. 9:4201.

      . In May v. Southland Corporation, 341 So.2d 421 (La.App. 3 Cir. 1976), writ denied, 342 So.2d 872 (La. 1977), this Court held that the dilatory exception of prematurity was the proper method of raising the defense of failure of a party to abide by a contractual provision requiring arbitration. This Court still approves of the decision in May, supra.


author: SWIFT, Judge.

text:
    Govie MORAUS, Plaintiff-Appellee, v. STATE of Louisiana, Through the DEPARTMENT OF TRANSPORTATION & DEVELOPMENT, Defendant-Appellant.
    No. 8078.
    Court of Appeal of Louisiana, Third Circuit.
    March 11, 1981.

      Warren D. Ponder, Baton Rouge, for defendant-appellant.
    Riddle & Bennett, John T. Bennett, Marksville, for plaintiff-appellee.
    Joseph B. Olinde, Jr., Baton Rouge, for intervenor-appellee.
    Simmons, Nelson & Dunn, Vince Dunn, Jr., Baton Rouge, for defendant-appellee.
    Before CULPEPPER, FORET and SWIFT, JJ.
   SWIFT, Judge.

The State of Louisiana, through the Department of Transportation and Development (DOTD), has appealed a judgment in favor of Govie Moraus, Lydia Armstrong and Ann Marie Lacy awarding each damages allegedly sustained as a result of a collision.

The facts of the accident are relatively undisputed. On December 5, 1978, at approximately 6:45 a. m. Joseph Y. Moraus was driving his pickup truck in which his father, Govie Moraus, was a passenger southerly on Louisiana Highway 1 approaching the bridge which crosses the At-chafalaya River at Simmesport. Simultaneously, Lydia Armstrong was driving an automobile in which Ann Marie Lacy was a passenger northerly approaching the same bridge. There was a thin sheet of ice on the road surface of the bridge. As the Armstrong automobile was ascending the bridge and the Moraus truck was descending, the car skidded, hit the side of the bridge to its right, bounced across the center lane, hit the other side of the bridge and stopped or almost stopped turned sideways across the southbound lane where it collided with the truck.

Neither vehicle was traveling fast. Mr. Moraus testified the speed of the truck was about five miles per hour and Mrs. Armstrong said she was going about 25 miles per hour when her car first hit the side of the bridge.' Nothing indicated otherwise. The speed limit was 55 miles per hour.

The December 4 edition of the Alexandria Town Talk reported that the National Weather Service had predicted a freeze warning for central Louisiana with the low temperature that night into the 20s. Mr. Norvin J. Lemoine, DOTD’s supervisor for this district, subscribed to the paper but denied having read same that day. He admitted, however, he was instructed by his superior in the Alexandria office on December 4 to display all “ICE ON BRIDGE” signs in the district because they were expecting a freeze the next morning with bridges icing over. His parish foremen were notified to do so shortly after 7:00 a. m. on December 4 and trucks were loaded that afternoon with lightweight gravel to be used in case of a freeze and ice on the bridges. Despite the notice the warning signs were not displayed until after the accident involved in this suit occurred. Mr. Lemoine contended this was because there was only a frost on December 5, but he also said that a gravel truck had been sent to a bridge on Highway 1 north of Marksville as ice was reported thereon at 6:30 a. m. that morning.

Both J. Y. Moraus and Mrs. Armstrong testified they did not see any ice on the bridge until their respective vehicle ascended same, but Moraus acknowledged there was ice on a small bridge which he had crossed earlier. These drivers said they found frost on their vehicles when they started same earlier that morning.

Mr. Moraus sued DOTD for damages, alleging negligence in failing to warn of and to correct the hazardous condition of the bridge. DOTD answered, denying negligence, but pleading contributory negligence in the alternative. DOTD further asserted third party demands against Lydia Armstrong and Joseph Moraus, alleging negligence by each and seeking indemnification or contribution.

Lydia Armstrong answered and filed a reconventional demand against DOTD for personal injuries and property damage. Later Ann Marie Lacy filed a petition of intervention for her personal injuries and damages allegedly resulting from DOTD’s negligence.

DOTD filed peremptory exceptions of prescription to Mrs. Armstrong’s reconven-tional demand and Ms. Lacy’s intervention. Both exceptions were overruled.

DOTD’s third party demands against Mrs. Armstrong and Joseph Y. Moraus were dismissed on the basis of compromise settlements and releases executed by the latter parties, their insurers and the plaintiff. However, there remained at issue the possible reduction of the plaintiff’s claim against DOTD under Harvey v. Travelers Insurance Company, 163 So.2d 915 (La.App. 3 Cir. 1964).

After trial on the merits the trial judge concluded that DOTD was negligent in its failure to display the “ICE ON BRIDGE” signs and to place a surfacing agent over the ice within a reasonable time. He further concluded the two drivers were free from any negligence. Govie Moraus was awarded $105,687.07 as special damages and $100,000.00 for pain and suffering. The award to Ann Marie Lacy was $1,878.75 for special damages and $5,000.00 for pain and suffering. Lydia Armstrong was awarded $5,879.25 for special damages and $5,000.00 for pain and suffering.

The appellant’s first specification of error is directed at the overruling of DOTD’s peremptory exception of prescription of one year to the intervention of Ann Marie Lacy which was filed on May 19, 1980, well over a year after the accident of December 5, 1978.

Govie Moraus filed the main demand against DOTD on July 19, 1979. DOTD answered and filed its third party demands against Mrs. Armstrong and J. Y. Moraus on September 19, 1979. Service thereof was made on Moraus on the same day and on Armstrong on September 25, 1979. On December 21, 1979, Armstrong answered and filed her reconventional demand against DOTD. Lydia Armstrong was able to avoid a similar plea of prescription because her incidental demand was not prescribed when the main demand was filed and she filed her reconventional demand within 90 days of service of process on. her of DOTD’s third party demand. LSA-C. C.P. Article 1067.

This article, however, is not applicable to Ms. Lacy’s cause of action. By its plain terms it applies to a defendant or a third party defendant who files an incidental action in the suit within 90 days of the service on such party of a main demand or a third party demand. Ms. Lacy was not a party to the suit until her intervention was filed and, of course, was not served with any demand prior thereto. Therefore, neither the 90 day period nor the other provisions of the codal article have any relationship with her situation. Also, we might point out that under any interpretation of Article 1067, Ms. Lacy is unable to rely thereon as a bar to the one year prescription that accrued against her tort claim as her incidental action was not filed within 90 days of service of process of either the main or the third party demands on any party in this suit.

Ms. Lacy contends that the trial judge correctly relied on Allstate Ins. Co. v. Theriot, 376 So.2d 950 (La.1979), in overruling DOTD’s exception of prescription. In that case Allstate, who was obligated to employee Moore for workmen’s compensation benefits by reason of a previous work-related accident, sued tort feasor Theriot alleging that in a subsequent automobile accident he aggravated Moore’s back injury and thereby increased the compensation benefits Allstate was required to pay. Allstate was attempting to assert a right of subrogation under LSA-R.S. 23:1101. The suit was filed within the applicable one year prescriptive period. However, when Moore intervened seeking damages for the same injuries allegedly sustained in that second accident the year had expired. Allstate’s main demand was dismissed as not stating a cause of action. However, the Supreme Court held that it had interrupted prescription by giving the defendant timely notice of Moore’s claim based on the same factual occurrence because of the close connection “in relationship and identity of interest with the original plaintiff.” We note that the cases cited by the supreme court to support this conclusion all involved one principal cause of action. In the case at bar there are three different claimants each asserting his or her distinct and separate cause of action which arose from the same accident. In our opinion these claimants are not sufficiently connected in relationship and identity of interest for the judicial demand of one to interrupt prescription running against each claimant. The judgment will therefore be reversed insofar as the award to Ann Marie Lacy is concerned as we find that her claim was extinguished by the prescription of one year.

Next, the appellant contends the trial court erred in holding that it violated any duty owed to Moraus and Armstrong.

Citing Laborde v. Louisiana Dept, of Highways, 300 So.2d 579 (La.App. 3 Cir. 1974) as the standard for imposition of liability, DOTD contends that it had no notice of the existence of a patent or obvious dangerous condition of the highway that it failed to correct within a reasonable time. We are in full accord with the trial judge’s finding to the contrary on this factual issue. As stated above the supervisor for the district in which the bridge is located was informed by his superior on December 4 that a freeze and icing of bridges were expected on the following morning. Although trucks loaded with gravel or sand were available that afternoon, the “ICE ON BRIDGE” signs were not displayed, nor were any other warnings given or safety precautions taken until after this accident occurred the next morning.

The situation involved in this suit differs from that in Coleman v. Houp, 319 So.2d 831 (La.App. 3 Cir. 1975). In Coleman the weather reports did not indicate such a likelihood of bridges icing over as to have an overnight crew standing by and it was doubtful that the highway department had sufficient time to take the necessary precautions between the receipt of notice of the icing conditions in the area and the occurrence of the accident. Under those circumstances this court held there was no substandard conduct on the part of the department and also that it was not proven that what its employees did or did not do was a cause in fact of the accident. In the instant suit it was established that DOTD’s employees had sufficient notice to take steps to prevent this accident.

We also agree with the trial judge’s findings that the two drivers exercised reasonable care under the circumstances and were not guilty of negligence that proximately caused the accident.

Although Mr. Moraus said he noticed ice on a bridge crossed earlier, he reduced his speed at the Atchafalaya bridge and was proceeding almost at a walk in his own traffic lane when the collision occurred. There is no indication that Moraus was not maintaining a proper lookout, was not exercising proper control of his truck or was negligent in any other respect when the Armstrong vehicle crossed into his lane.

While Mrs. Armstrong lost control of her automobile because of the ice as she ascended the bridge, she had no prior notice of such hazardous condition and was then traveling at a reasonable rate of speed. The record fails to indicate that she was negligent in any way.

Even if both drivers had knowledge that ice might be present, just because they chose to cross the bridge does not necessarily constitute negligence which caused the accident. The record supports the trial court’s findings that in doing so both motorists exercised reasonable care under the circumstances.

Mr. Govie Moraus, the plaintiff, was a guest passenger and unquestionably was not guilty of contributory negligence that caused the accident.

Finally, appellant disputes the amounts of the awards. In our opinion that of Mrs. Armstrong is clearly within the maximum limit of the trial court’s discretion. While it appears to us that the award to Govie Moraus is very high, particularly in view of his failure to follow his physician’s recommendation of a fusion operation to help alleviate the pain which he contends he has experienced from the two ruptured discs that have been diagnosed to exist in his cervical spine, it is difficult for us to say the trial judge abused his “much discretion” in the award to Mr. Moraus in view of recent pronouncements of the courts of this state. Coco Industries, Inc. v. Winston, 341 So.2d 332 (La.1977); Reck v. Stevens, 373 So.2d 498 (La.1979); Polman v. Mohasco, 371 So.2d 838 (La.App.‘ 4 Cir. 1979); Fa-ciane v. Carter, 381 So.2d 1312 (La.App. 4 Cir. 1980).

For the foregoing reasons, the judgment of the district court is reversed insofar as it awards damages to Ann Marie Lacy in the sum of $6,878.75, with interest and court costs, and it is hereby ORDERED, ADJUDGED and DECREED that there be judgment herein in favor of the defendant-in-intervention, State of Louisiana, through the Department of Transportation and Development, and against the intervenor, Ann Marie Lacy rejecting the latter’s demands and dismissing the intervention at her costs (which are determined to be one-sixth of the total court costs in this proceeding). Otherwise the judgment is affirmed. The court costs assessed against the State of Louisiana, through the Department of Transportation and Development, including this appeal, are hereby fixed in the sum of $1011.30.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.

      . An incidental demand is not barred by prescription or peremption if it was not barred at the time the main demand was filed and is filed within ninety days of date of service of main demand or in the case of a third party defendant within ninety days from service of process of the third party demand.


author: GUIDRY, Judge.

text:
    Raymond C. DAVIS, Plaintiff-Appellee, v. RAYMOND PETROLEUM, INC. et al., Defendants-Appellants.
    No. 8080.
    Court of Appeal of Louisiana, Third Circuit.
    March 11, 1981.

      Salter, Streete & Hale, Steven W. Hale, Lake Charles, for defendants-appellants.
    Reesby & Townsend, Jeff Townsend, Lake Charles, for- plaintiff-appellee.
    Before GUIDRY, CUTRER and LA-BORDE, JJ.
   GUIDRY, Judge.

Defendants-appellants, Raymond Petroleum, Inc., Charles Raymond Talen, Finley Hilliard, and James Creaghan, appeal from a judgment which denied their recovery of damages and attorney’s fees allegedly resulting from the wrongful issuance of a temporary restraining order obtained by plaintiff-appellee, Raymond C. Davis. The decision of the trial court holding that the temporary restraining order was wrongfully issued has not been appealed.

Plaintiff-appellee filed a motion to dismiss this appeal contending that the judgment of the trial court is an “order relating to a temporary restraining order” and thus, is non-appealable under the provisions of LSA-C.C.P. Art. 3612. Defendants-appellants filed an answer in opposition to this motion.

FACTS

On February 5, 1980, Raymond C. Davis filed a petition seeking a temporary restraining order and preliminary injunction prohibiting Raymond Petroleum, Inc. from conducting a shareholder’s meeting scheduled for February 11, 1980. Davis alleged in his petition that a substantial and serious dispute regarding the ownership of stock in Raymond Petroleum, Inc. existed between himself and the remaining shareholders of that corporation. Thus, Davis sought to enjoin the corporation from conducting the scheduled meeting until after this dispute was resolved by the courts. In addition, Davis alleged that the purpose of the scheduled meeting was to oust him from positions of power within the corporation and that he would therefore sustain irreparable injury if the meeting was not enjoined.

On February 6, 1980, the trial court issued the temporary restraining order and ordered that a hearing on the preliminary injunction be held on February 14, 1980. At that hearing, defendants-appellants requested leave of court to file a peremptory exception of no cause of action. The trial court granted defendants’ request and rescheduled the hearing for February 29, 1980. The temporary restraining order was not extended and thus expired by its terms ten days after issuance. On February 20, 1980, defendants-appellants filed a rule to dissolve the restraining order wherein they also petitioned the court for damages and attorney’s fees. At the hearing held on February 29, 1980, the plaintiff-appellee withdrew his request for a preliminary injunction. The trial court rendered judgment declaring that the temporary restraining order was wrongfully issued, however denied defendants’ prayer for damages and attorney’s fees.

This court is confronted with two issues on appeal: (1) Is a judgment denying damages and attorney’s fees on a rule for wrongful issuance of a temporary restraining order a final judgment and therefore appealable? (2) Are the defendants-appellants entitled to damages and attorney’s fees due to the wrongful issuance of the temporary restraining order?

MOTION TO DISMISS

Plaintiff-appellee contends that a judgment denying damages and attorney’s fees for the wrongful issuance of a temporary restraining order is an “order relating to a temporary restraining order” which cannot be appealed from under the provisions of LSA-C.C.P. Article 3612, supra. We conclude that, under the particular circumstances of this case, this contention is without merit.

The only relief sought by Davis in this matter was the issuance of a temporary restraining order and an injunction prohibiting the defendant-corporation from conducting a scheduled meeting on February 11,1980. When this matter was ultimately tried on February 29, 1980 the plaintiff withdrew his request for an injunction and the court took under advisement defendants’ demand for damages and attorney’s fees. Ultimately on July 7, 1980 the trial court signed a judgment finding that the temporary restraining order was wrongfully issued but denied defendants’ demands for attorney’s fees and damages. LSA-C. C.P. Article 1841 provides as follows:

“A judgment is the determination of the rights of the parties in an action and may award any relief to which the parties are entitled. It may be interlocutory or final.
A judgment that does not determine the merits but only preliminary matters in the course of the action is an interlocutory judgment.
A judgment that determines the merits in whole or in part is a final judgment.”

The judgment rendered in this case is, in all respects, final insofar as this litigation is concerned as it determined the merits of the controversy between plaintiff and defendants and is therefore appealable.

DAMAGES

Raymond Petroleum, Inc. and three of its shareholders, Charles Raymond Talen, Finley Hilliard, and James Creaghan, allege that the wrongful issuance of the temporary restraining order resulted in a severe disruption of corporate business, and caused both the corporation and its individual shareholders embarrassment, humiliation, loss of privileges, loss of reputation, inconvenience, mental anguish, and emotional upset. Defendants-appellants contend that they are entitled to damages under the provisions of C.C.P. Articles 3607 and 3608. These articles provide:

C.C.P. Article 3607:

“An interested person may move for the dissolution or modification of a temporary restraining order or preliminary injunction, upon two days’ notice to the adverse party, or such shorter notice as the court may prescribe. The court shall proceed to hear and determine the motion as expeditiously as the ends of justice may require.
The court, on its motion and upon notice to all parties and after hearing, may dissolve or modify a temporary restraining order or preliminary injunction.”

C.C.P. Article 3608:

“The court may allow damages for the wrongful issuance of a temporary restraining order or preliminary injunction on a motion to dissolve or on a reconven-tional demand. Attorney’s fees for the services rendered in connection with the dissolution of a restraining order or preliminary injunction may be included as an element of damages whether the restraining order or preliminary injunction is dissolved on motion or after trial on the merits.”

Before proceeding to a discussion of the precise issue presented on this appeal we consider it necessary to set forth our view with regard to the meaning of LSA-C. C.P. Article 3608. In our opinion the first sentence of the cited article allows the recovery of damages for the “wrongful issuance” of a temporary restraining order on a motion to dissolve or on a reconventional demand, irrespective of the fact that when the demand is made the wrongfully issued restraining order has already expired by its terms. The second sentence of the cited article allows the inclusion of attorney’s fees as an element of such damages only for services rendered in connection with the dissolution of a restraining order or preliminary injunction. Therefore, we conclude that if the wrongfully issued restraining order has already expired when the demand for dissolution is made, damages are recoverable but attorney’s fees are not.

The record discloses that by order of the trial court, Raymond Petroleum, Inc. was temporarily restrained, enjoined, and prohibited from conducting a shareholder’s meeting scheduled for February 11, 1980. It is well-settled that the plaintiff (defendants herein are plaintiffs-in-rule) has the burden of proving all allegations of damages contained in his petition. Fox v. Argonaut Southwest Ins. Co., 288 So.2d 102 (La. App.4th Cir. 1974); Cheramie v. Jones, 327 So.2d 601 (La.App.4th Cir. 1976); Dillon v. Rice, 375 So.2d 742 (La.App.4th Cir. 1979), writ granted, 377 So.2d 1251 (La.1979), 384 So.2d 344 (La.1980). A review of the record reveals that it is devoid of evidence establishing the validity of the defendants’ claim of damages. Our brethren of the First Circuit Court of Appeal in Amacker v. Amaeker, 146 So.2d 672 (La.App.1st Cir. 1962) have previously commented:

“Appellants’ claim of damages for alleged mental pain and anguish, humiliation, and embarrassment and injury to reputation purportedly resulting from the injunction which improperly issued herein, may be dismissed with the statement that the record before us is barren of evidence to support such claim.”

See also Kinchen v. Kinchen, 249 So.2d 926 (La.App.1st Cir. 1970); Rieger v. Tierney, 265 So.2d 279 (La.App.4th Cir. 1972). As stated in the trial court’s written reasons for judgment, there is no showing made beyond the broad allegations of the petition that defendants suffered damages as a result of the wrongful issuance of the temporary restraining order. Accordingly, the defendants’ claim for damages was rightfully denied by the trial court.

Since we find that the individual defendants, like Raymond Petroleum, Inc., have utterly failed to establish by a preponderance of the evidence that they suffered any damages as a result of the unlawful issuance of the restraining order, we need not consider their contention that they are entitled to damages because they are “interested persons” within the meaning of the language contained in LSA-C.C.P. Article 3607.

ATTORNEY’S FEES

Defendants-appellants contend that they are entitled to attorney’s fees allegedly incurred as a result of seeking the dissolution of the temporary restraining order and defending the rule for a preliminary injunction. LSA-C.C.P. Art. 3608 provides in pertinent part, “... Attorney’s fees for the services rendered in connection with the dissolution of a restraining order or preliminary injunction may be included as an element of damages...” (Emphasis supplied). As this court state in Lighthouse Life Insurance Company, Inc. v. Rich, 343 So.2d 444 (La.App.3rd Cir. 1977):

“Jurisprudence makes it clear that where the temporary restraining order has expired by operation of law ten days after issuance, and where there is no showing of any necessity to obtain an attorney to dissolve the restraining order, attorney’s fees cannot be awarded. Robinson v. Jackon. 255 So.2d 846 (2d Cir. 1971), writ denied, 260 La. 700, 257 So.2d 155; Pizzitola v. Pace. 161 So.2d.441 (1st Cir. 1964); Intercity Express Line v. Guarisco. 165 So.2d 727 (1st Cir. 1936); Austin v. Currie, 16 La.App. 875, 134 So. 723.”

Thus, under this jurisprudence, it is clear that no attorney’s fees can be awarded in connection with the temporary restraining order in the instant case.

The record discloses that the temporary restraining order was issued on February 6, 1980. No extension was granted. Thus, the temporary restraining order expired by its terms ten days after issuance. LSA-C. C.P. Art. 3604. The rule to dissolve the temporary restraining order was not filed by defendants until February 20,1980. The hearing on the propriety of issuing a preliminary injunction was not held until February 29, 1980, approximately twenty-three days after the order was granted. At the hearing, the plaintiff-appellee withdrew his request for a preliminary injunction. Our court in the Lighthouse case, supra, noted that no statute allows attorney’s fees for simply defending a rule for a preliminary injunction. See also, Pizzitola v. Pace, supra. In the instant case, the plaintiff-ap-pellee withdrew his request for a preliminary injunction, therefore, defendants-appellants were not even required to defend such a rule. After a consideration of the jurisprudence and applicable statutes, we conclude that the defendants-appellants are not entitled to attorney’s fees under the circumstances of the instant case.

For the above and foregoing reasons the judgment of the trial court is affirmed.

AFFIRMED.

      . LSA-C.C.P. Art. 3612 provides:
      “There shall be no appeal from an order relating to a temporary restraining order.
      An appeal may be taken as a matter of right from an order or judgment relating to a preliminary or final injunction, but such an order or judgment shall not be suspended during the pendency of an appeal unless the court in its discretion so orders.
      An appeal from an order or judgment relating to a preliminary injunction must be taken and a bond furnished within fifteen day from the date of the order or judgment. The court in its discretion may stay further proceedings until the appeal has been decided,
      Except as provided in this article, the procedure for an appeal from an order or judgment relating to a preliminary or final injunction shall be as provided in Book III.”