text:
    FIRST GUARANTY BANK v. Max H. DURHAM, Jr., et al.
    No. 12266.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1982.

      Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Herschel L. Abbott, Jr., New Orleans, for defendants-appellees.
    Pittman & Matheny, Tom H. Matheny, Christoper Moody, Alton B. Lewis, Hammond, for plaintiff-appellant.
    Before REDMANN, GULOTTA and BARRY, JJ.
   GULOTTA, Judge.

First Guaranty Bank (the Bank) appeals from the dismissal of its suit against Max H. Durham, Jr. (Durham) and Durham & Lazard (Partnership) for the balance due on a promissory note. In the judgment of dismissal, the trial court maintained Durham’s exception of res judicata and further granted defendants’ motion for summary judgment. We affirm.

Loans had been made by the Partnership from the Bank before 1970. On November 3, 1971, a promissory note was executed in favor of the Bank in the amount of $17,-000.00 and signed “Sidney H. Lazard by Guy W. Smith under P/A”. According to the Bank, the note was signed as a partnership obligation given in payment for a previously existing partnership debt. Durham and the Partnership, on the other hand, considered the note as Lazard’s personal obligation given in payment for a previously existing partnership debt that he had assumed.

In May, 1972, Durham executed in favor of the Bank a $20,000.00 collateral mortgage note and mortgage on real property owned by him. Again, the parties differed as to the purpose of this device. Durham contended that the collateral mortgage was issued to secure future advances on his personal line of credit with the Bank, whereas the Bank viewed the mortgage as security for payment of the $17,000.00 note.

In November, 1972, Durham executed a note in favor of the Bank for $3,500.00 secured by the collateral mortgage. He subsequently repaid this loan, and thereafter filed suit in Tangipahoa Parish to erase the $20,000.00 collateral mortgage. The Bank reconvened praying for recognition of the mortgage and for judgment in the amount of $12,103.00, the balance owed on the $17,000.00 note. The trial court awarded the Bank a judgment against Durham for the balance due on the note; however, the First Circuit Court of Appeal reversed. The Bank’s reconventional demand seeking recognition óf the mortgage and the balance due on the note was dismissed.

On July 12, 1976, the Bank filed the instant suit against Durham individually and against the Partnership for the $12,103.00 balance remaining on the $17,000.00 note. In maintaining the exception of res judica-ta, the trial judge determined that the Bank’s reconventional demand in the first-filed suit in Tangipahoa Parish was the same as its demand in the instant suit. In granting the motion for summary judgment filed by the Partnership, the judge further observed that there was no indication in the note that it was executed on behalf of the Partnership, or that Guy Smith, who signed for Lazard, had acted as a mandatary for the Partnership. The trial judge also noted that the Bank had failed to file any affidavits suggesting suretyship or a promise to pay Lazard’s debt.

Appealing, the Bank claims initially the trial judge erred in applying res judicata. The Bank points out that in the first-filed suit recognition of the collateral mortgage and connection between the mortgage and the $17,000.00 note were sought; while in the instant suit, the balance on the unsecured $17,000.00 debt is sought. The Bank claims also that, unlike the first-filed suit, the instant case involves a question of guaranty. The Bank further argues that the trial judge erred in granting summary judgment.

RES JUDICATA

The Louisiana Supreme Court has recognized that res judicata under Louisiana law is much narrower in scope than its common law counterpart and is applicable only when the parties, the “cause” and the things demanded are identical. The absence of any of these requirements is fatal to an exception of res judicata. See Welch v. Crown Zellerbach Corp., 359 So.2d 154 (La.1978); Mitchell v. Bertolla, 340 So.2d 287 (La.1976). Further, res judicata is stricti juris and a second suit is not barred where there is any doubt about the applicability of Article 2286. Lambert v. Maryland Cas. Co., 403 So.2d 739 (La.App. 4th Cir. 1981).

The term “cause of action” used in LSA-C.C. Art. 2286, has been defined by the Supreme Court as “cause” or “the juridical or material fact which is the basis of the right claimed, or the defense pleaded”. Thus, it has been held that a plaintiff’s earlier suit to nullify a contract for nonpayment of rent and for lesion beyond moiety did not bar a second suit for nullity based on the grounds of fraud and lack of consideration, since there was no identity of “cause” to support the plea of res judicata. Mitchell v. Bertolla, supra. See also, Dixon, Et al, “Res Judicata in Louisiana Since Hope v. Madison, 51 Tul. Law Review 611 (1977). However, res judicata does not depend on the appellate court’s opinion in litigation between the same parties on the same cause of action, but on “what was the object of the judgment ”, (emphasis added), on whether the “thing demanded [is] the same,” LSA-C.C. 2286.

The cause asserted in the first-filed suit in Tangipahoa Parish filed by Durham against the Bank and the clerk of court is the erasure of the collateral mortgage. The Bank, in reconvention, prayed for judgment against Durham for the balance due on the promissory note and recognition that the $17,000.00 note was secured by the collateral mortgage. The First Circuit Court of Appeal stated in its opinion that the “only” issue facing the court was “the effect of the collateral mortgage and collateral mortgage note” executed by Durham. However, the decree not only reverses the trial court on that “security claim” but also reverses a judgment against Durham for the $12,-103.00 balance on the note here sued on, by granting “further judgment dismissing the reconventional demand of said defendant.” There exists an inconsistency in the issue as posed by our brothers on the First Circuit in the body of the opinion and the decree. Nevertheless, the Supreme Court in denying writs decided “the judgment is correct.”

Res judicata applies as to Durham because the Bank, by reconventional demand on the earlier suit, has already sued Durham to recover the balance owing on the note. The object of the judgment and the thing demanded (balance owed on the note) are the same.

SUMMARY JUDGMENT

The summary, judgment was also correct in dismissing this suit as to the Partnership. This is a suit on a note (and an alleged “guarantee” thereof by a partner individually). The note’s maker’s signature is “Sidney H. Lazard by Guy W. Smith under P/A.” The partnership of Durham and Lazard did not even purport to sign the note anywhere, and the then law, former LSA-R.S. 7:18 (like present law, LSA-R.S. 10:3-401), provides that no person is liable on an instrument whose signature does not appear thereon. Thus the Partnership cannot be liable on the note. It is not even argued (much less alleged) that the Partnership guaranteed the note. There is no basis upon which a judgment could be rendered against the Partnership on this note.

Having so concluded, we affirm the judgment of the trial court.

AFFIRMED.

      . Smith was acting under the written power of attorney granted by Lazard.

      . Durham v. First Guaranty Bank of Hammond, 331 So.2d 563 (La.1976), writ denied, 334 So.2d 431 (1976).

      . LSA-C.C. Art. 2286 provides:
      “Art. 2286. Res judicata, essential elements The authority of the thing adjudged takes place only with respect to what was the object of the judgment. The thing demanded must be the same; the demand must be founded on the same cause of action; the demand must be between the same parties, and formed by them against each other in the same quality.”


source: Caselaw Access Project

author: GULOTTA, Judge.

license: Public Domain

text:
    Kathleen Vick, Wife of/and Kendall VICK v. NATIONAL AIRLINES, INC.
    No. 12356.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1982.

      Patrick M. Reily, New Orleans, for plaintiffs-appellees.
    Deutsch, Kerrigan & Stiles, Frederick R. Bott, New Orleans, for defendant-appellant.
    Before SAMUEL, GULOTTA and BARRY, JJ.
   GULOTTA, Judge.

In this breach of contract suit, the trial judge awarded plaintiffs, Kathleen and Kendall Vick, $2,500.00 each “for their pain and suffering, mental anguish, inconvenience and inability to carry out their vacation plans” because of defendant’s failure to fly them non-stop from New Orleans to Miami, the first leg of the Vicks’ vacation trip. The trial court further granted judgment in the amount of $507.40 to compensate plaintiffs for out-of-pocket expenses incurred in connection with their abandoned vacation. We affirm.

The undisputed testimony was that Mr. and Mrs. Vick had planned a vacation in December, 1977. They purchased tickets for a non-stop National Airlines flight from New Orleans to Miami on December 17, 1977. At Miami, the Vicks planned to board a connecting flight on another airline to the Caribbean.

The Vicks arrived at the New Orleans airport in time for an 8:40 a. m. departure. Their plane was scheduled to arrive in New Orleans earlier from Tampa after making a stop in Pensacola en route to New Orleans before its non-stop flight from New Orleans to Miami. Because of bad weather conditions, the plane was unable to make a stop in Pensacola, and arrived three hours late in New Orleans. The Vicks left New Orleans under the impression that they were flying non-stop to Miami (as ticketed) and could still make their connecting flight to the Caribbean, despite the delay.

En route, without having been informed beforehand, the Vicks learned of a Pensacola stop, apparently to allow passengers on the earlier flight from Tampa to disembark and to pick up new passengers flying from Pensacola to Miami.

The plane landed in Pensacola under extreme weather conditions. Mr. Vick testified that the flight into Pensacola was “incredibly rough” and “like a roller coaster”. Mrs. Vick testified that, because of prior experiences, flying in bad weather affects her emotionally and that the flight to Pensacola was “terrible” as they “bumped and bounced the entire way.”

After landing in Pensacola, the plane was additionally delayed over two hours because of inclement weather before departing for Miami. During the lay-over, Mrs. Vick became nervous because of the rough landing, the bad weather, and a lack of information from National personnel concerning their takeoff time and connecting flight. When it became apparent that it was impossible to make the connecting flight in Miami, and, in view of the uneasy flying conditions, Mrs. Vick decided to get off the plane and drive to Miami in a rented car. Mr. Vick decided to continue on the flight to Miami and meet Mrs. Vick there the following day to make new arrangements for continuing to the vacation spot.

Mr. Vick testified that upon landing in Miami after an uneventful flight, there was “chaos and confusion” as irate passengers who had missed connecting flights attempted to see a “very few” National agents to arrange alternate accomodations. Vick testified that “people were five deep shouting at the ticket agents” and that he waited in line to speak with an agent. After failing to obtain help from National personnel, Vick tried to check into a hotel across the airport concourse from the ticket counter but there was no vacancy. He then went to the Antilles Airline counter (his connecting airline for the continuation of his flight) and learned that he could not get a flight to the Caribbean either that night or the next day. He thereupon decided to return to New Orleans and left within an hour.

In the meantime, Mrs. Vick, after leaving the Pensacola airport, drove toward Miami in a rented car. Upon arrival in Tallahassee she attempted to call her husband at the Miami Airport and nearby hotels but could not reach him. After staying in a motel she was able to talk to her husband the next morning and learned that he had returned to New Orleans. She then drove to Tampa, boarded a plane and returned home.

Appealing, National contends that plaintiffs’ cause of action is in contract and they are restricted to the $507.40 out-of-pocket claimed loss. Alternatively, defendant contends, the Vicks were guilty of causing their own problems by Mrs. Vick’s decision to leave the plane in Pensacola and drive to Miami and by Mr. Vick’s “abrupt departure” for New Orleans after arriving in Miami. According to defendant, these actions by the Vicks were the cause of their vacation’s cancellation. National further argues that any award for inconvenience should be “very nominal” in the range of $250.00 instead of the $2,500.00 amount awarded each plaintiff by the trial court. We disagree.

The undisputed evidence supports the trial judge’s conclusion that defendant breached its contract to fly plaintiffs nonstop from New Orleans to Miami. It is clear from the record that plaintiffs attempted to find alternate means to make a connecting flight in Miami to the Caribbean and we cannot say that either their attempt or their decision to return home was unreasonable. As the trial judge pointed out in well-written reasons for judgment:

“The Court finds from the evidence that defendant agreed to fly plaintiffs nonstop to Miami, in order for plaintiffs to make connection with another airline to take them to their destination, where they intended to spend their vacation. Defendant knew of plaintiffs’ plans and of the connections which had to be made, in order for plaintiffs to reach their destination.
Instead of carrying out its contract, defendant chose to fly its plane — in the face of very bad weather — to Pensacola. The plane descended in Pensacola and remained grounded long enough to make it impossible for plaintiffs to make their plane connections, and thus to reach their ultimate destination.
Both plaintiffs made every effort to reach their destination by other means, without success. In desperation, they were forced to return to New Orleans, thus destroying all plans for their long-prior-arranged vacation.”

We adopt these reasons.

We further find no error in the award of damages for plaintiffs’ “pain and suffering, mental anguish, inconvenience and inability to carry out their vacation plans”. Non-pecuniary damages for mental distress are available in actions for breach of contract if the contract has as a principal object the gratification of some intellectual enjoyment. See LSA-C.C. Art. 1934(3); Gele v. Markey, 387 So.2d 1162 (La.1980); Meador v. Toyota of Jefferson, Inc., 332 So.2d 433 (La.1976); Elliott v. Louisiana Intrastate Gas Corp., 390 So.2d 571 (La.App. 3rd Cir. 1980). Defendant’s contract to transport plaintiffs non-stop from New Orleans to Miami was the first leg of plaintiffs’ Christmas vacation to the Caribbean. The flight was a sine qua non of this vacation package. We conclude that the flight had for its object (as part of a vacation) the gratification of plaintiffs’ intellectual enjoyment. Accordingly, we hold plaintiffs are entitled to damages.

Despite our holding, we do not mean to imply that any airline passenger who misses a connecting flight is entitled to recovery from the airline. We are aware that missed flights occur from time to time and that the airlines provide passengers with hotel accommodations or alternate flights to rectify the travelers’ problems. We are also aware of the problems and delays caused by bad weather; however, the Vicks purchased tickets for a non-stop flight but were not informed beforehand of National’s decision, for business reasons or otherwise, to change the flight plan. Plaintiffs were subjected to an unscheduled stop and delay in Pensacola under adverse weather conditions and were not afforded reasonable assistance by National personnel either there or in Miami to arrange alternate accommodations. Defendant’s failure was in not adequately informing plaintiffs of the changed flight schedule and in being callous to the problems caused by the delays and the airline’s decision to make an unannounced stop in Pensacola. Plaintiffs are entitled to recovery.

Finally, considering the problems, anxiety and inconvenience suffered by plaintiffs, we cannot say the amount awarded is an abuse of the trial court’s discretion.

The judgment is affirmed.

AFFIRMED.

      . Plaintiffs alone testified. Defendant introduced no evidence.

      . LSA-C.C. Art. 1934(3) provides:
      “3. Although the general rule is, that damages are the amount of the loss the creditor has sustained, or of the gain of which he has been deprived, yet there are cases in which damages may be assessed without calculating altogether on the pecuniary loss, or the privation of pecuniary gain to the party. Where the contract has for its object the gratification of some intellectual enjoyment, whether in religion, morality or taste, or some convenience or other legal gratification, although these are not appreciated in money by the parties, yet damages are due for their breach; a contract for a religious or charitable foundation, a promise of marriage, or an engagement for a work of some of the fine arts, are objects and examples of this rule.”


author: SCHOTT, Judge.

text:
    WEST CASH AND CARRY BUILDING MATERIALS OF NEW ORLEANS, INC. v. J. W. BOHRER.
    No. 12250.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1982.

      Terry A. Bell, Carimi Law Firm, Gretna, for plaintiff-appellant.
    Charles E. Cabibi, Cabibi & Cabibi, New Orleans, for defendant-appellee.
    Before SCHOTT, GARRISON and KLEES, JJ.
   SCHOTT, Judge.

Plaintiff, West Cash and Carry Building Materials of New Orleans, Inc., has appealed from a judgment dismissing its claim against defendant, J. W. Bohrer, on a motion for summary judgment. The issue is whether the pleadings and affidavits show no genuine issue as to material fact so as to entitle defendant to a summary judgment under LSA C.C.P. Art. 966.

Plaintiff made the following allegations in its original petition: Defendant owes plaintiff $11,877.26 for materials it furnished defendant in March and April, 1979, and May of 1980. These materials were furnished for and used in the construction of improvements at the property at 6730-32 Bellaire Drive in New Orleans, which property was purchased by defendant from Sanctuary Investment Corporation on April 16,1980. There was no recorded contract in connection with the construction. On May 12, 1980, plaintiff recorded an affidavit of its claim in the mortgage office pursuant to LSA-R.S. 9:4812. Plaintiff asserted a privilege on the property and personal liability on the part of the defendant.

On October 2, 1980, defendant responded with a motion for summary judgment which the court scheduled for a hearing on October 24. Defendant attached to his motion an affidavit which contained the following statements: At the time of the alleged sale and delivery of the merchandise to the property at 6730-32 Bellaire Drive it was not owned by him but by Sanctuary Investment Corporation. On May 2, 1979, Sanctuary had borrowed money from First Homestead Association for the purpose of paying for all repairs and remodeling work it had done on the property, and in connection with the sale and resale with the Homestead a mortgage certificate was ordered in Sanctuary’s name. This certificate, redated subsequent to the recordation of the sale and resale, reflected no claims against the property. At no time subsequent to the sale and resale did Sanctuary employ or hire anyone to do further work on the premises. On April 15,1980, Sanctuary sold the property to defendant and the mortgage certificates issued in connection with that sale showed no evidence of the recordation of any claims or liens against Sanctuary. Defendant, as owner of the property, never authorized anyone to do any repairs on the property. B&B Services was never authorized to act as his agent, contractor, or sub-contractor, and Burl Mahl was not the authorized agent of defendant and was not undertaking any work for his account on May 5, 1980.

On October 23, the day before the motion for summary judgment was scheduled to be heard, plaintiff filed a memorandum in opposition to defendant’s motion for summary judgment and attached a photographic copy of an affidavit by Burl Mahl, dated May 7, 1980. However, the original of this affidavit was not filed until October 24 at 9:41 AM, giving rise to a threshold issue raised by defendant. C.C.P. Art. 966 permits the adverse party to serve opposing affidavits prior to the day of the hearing. Defendant contends that only the original affidavit is admissible and since it came too late it may not be considered in connection with the motion, as in Mainliner Motor Express, Inc. v. Winn State Bank & Trust Co., 390 So.2d 932 (La.App. 2nd Cir. 1980), Acme Refrig, of Baton Rouge v. Cal Joan, Inc., 346 So.2d 743 (La.App. 1st Cir. 1977). However, these cases are not applicable here, in view of plaintiff’s having filed a photographic copy of the original affidavit with its memorandum on the day before the hearing. A reading of that memorandum suggests that it was plaintiff’s intention to attach the original affidavit to the document. Under the circumstances it would appear that a refusal on our part to consider the affidavit simply because the original was not filed until the morning of the hearing would overemphasize form at the expense of substance and would be inconsistent with the goal of providing justice to both parties in the lawsuit.

The affidavit of Burl Mahl contains the following assertions: He was an employee of B&B Construction Company, the general contractor of the house constructed at 6730-32 Bellaire Drive. The construction has not yet been completed with work remaining to be done on the kitchen floor in one apartment, air conditioning, electric work, plumbing repairs and roof repairs. No acceptance of the job has been filed by the record owner of the property. He picked up materials from plaintiff’s office and delivered and installed them in the property at 6730-32 Bellaire Drive. The materials cost $11,877.26 as of the date of his affidavit. He has been instructed by defendant to finish construction on the property by completing the work he previously listed.

Plaintiff’s suit is based on R.S. 9:4812 with respect to an unrecorded contract. That statute provides that in the absence of an affidavit of completion by the owner, a furnisher of materials has 60 days from the date of the last delivery of all material upon the property to file an affidavit and preserve a privilege on the property. The statute also provides that the supplier of materials has a personal cause of action against the owner under these circumstances for one year from the date of the recordation of his claim. A fair reading of Mahl’s affidavit sets up genuine issues of material fact in contradiction of defendant’s affidavit such as to preclude defendant’s entitlement to summary judgment relief. Some of the factual issues which are not precluded by the affidavits and may have a bearing on the ultimate outcome of the case are whether Mahl was acting as the agent of defendant and/or Sanctuary in ordering material from plaintiff, the relationship between Sanctuary and defendant (documents attached to defendant’s affidavit show that he was the President and Secretary of Sanctuary) which might support the application of the principles discussed in Capital Bank & T. Co. v. Broussard Paint & Wall Co., 198 So.2d 204 (La.App. 1st Cir. 1967) and whether the work begun by Sanctuary was still in progress in May, 1980, and was never abandoned by Sanctuary and/or defendant. See First Wis. Nat. Bank of Milwaukee v. Novem, 349 So.2d 370 (La.App. 4th Cir. 1977).

In our recitation of facts in this case we have purposely limited the discussion to those facts which are pertinent to the issue before us, namely, the propriety or correctness of the summary judgment. We note that defendant has raised issues which upon trial will have to be explained by plaintiff, such as its failure to provide a signed affidavit from the manager of plaintiff and the fact that in May, 1979, this manager recorded a claim for $11,804.89 for materials furnished to property at 6721-23 Bellaire Drive. This is the exact difference between the a,mount of plaintiff’s claim against defendant and the “last ticket written” by plaintiff on May 5, 1980, for $72.37 for materials sold to B&B Services at 6730-32 Bellaire Drive. We also note the coincidence contained in defendant’s affidavit that Burl Mahl was a tenant of defendant residing at 6730 Bellaire Drive and he was evicted from those premises on May 7,1980, for failing to pay three months’ rent. This was two days before plaintiff’s affidavit was filed against defendant. Nonetheless, the cases are legion to the effect that the summary judgment procedure is not a proper substitute for trial and is to be used sparingly, and all doubt is resolved in favor of the party opposing the summary judgment.

Accordingly, the judgment appealed from is reversed and set aside. There is judgment in favor of plaintiff, West Cash and Carry Building Materials of New Orleans, Inc., and against defendant, J. W. Bohrer, denying his motion for summary judgment. The case is remanded to the district court for further proceedings.

REVERSED AND REMANDED.


text:
    Terrell Ann POWER v. OTIS ELEVATOR COMPANY, New Orleans International Trade Building Corporation, International Trade Mart, ABC and XYZ Insurance Companies.
    No. 12192.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1982.
    T. Peter Breslin, Gauthier & Murphy, Kenner, for plaintiff-appellant.
    Jack M. Alltmont, Sessions, Fishman, Ro-senson, Boisfontaine & Nathan, New Orleans, for defendants-appellees (New Orleans Intern. Trade Bldg. Corp. and Intern. Trade Mart).
    James H. Drury, Drury & Lopez, New Orleans, for defendant-appellee (Otis Elevator Co.).
    Before SCHOTT, GARRISON and KLEES, JJ.
   SCHOTT, Judge.

Plaintiff, Terrell Ann Power, has appealed from a dismissal of her suit for damages she sustained in a fall on an escalator in the International Trade Mart Building in New Orleans where she was employed. Defendants are New Orleans International Trade Building Corporation, the owner of the building, and the Otis Elevator Company which installed and maintained the escalator under contract with the building owner. The case was tried to a jury.

Plaintiff, who was 22 years of age at the time of the accident, was descending between the third and second floor in the company of another young woman when the two fell from a point about half way between floors. They tumbled down on the stairs of the escalator to the floor below. She alleged and offered evidence to prove that her accident was caused by a defect in the escalator in that “it malfunctioned, causing it to jerk violently and stop suddenly.”

Plaintiff’s evidence consisted of her own testimony and that of two witnesses who were at the top of the escalator when the accident occurred. Her companion was not called as a witness. Plaintiff testified that as she was descending a step behind her companion the escalator jerked, whereupon she and her companion began to fall, tried to grab each other and went tumbling down the stairs together. She also described the escalator’s movement as “like a pull,” and a “funny movement.”

Dage Hove testified that as plaintiff and her friend were half way down the escalator he and a companion, Robert Sage, were starting down the escalator from the third floor. As he was ready to step on the escalator from the third floor it “made a funny movement and kept going again.” At this point the two girls fell. He stated, “I could see that it stalled and then started.” He also characterized the escalator’s movement as an instantaneous jerk.

Mr. Sage testified that he had just gotten on the escalator when he felt a surge or irregularity, whereupon he grabbed the hand-hold and realized that people were falling in front of him. He also characterized the escalator’s movement as an erratic movement, “like an irregularity of the speed of the escalator.” He explained that it seemed to slow down and then surge as it resumed its normal speed.

On the other hand, defendant Otis produced as witnesses Leonard Labrousse, who operated a shop near the foot of the escalator on the second floor, John P. Christman, Jr. and Norris Ward, Otis mechanics who serviced the elevator, and David Steel, an escalator engineer. Labrousse’s attention was called to plaintiff and her companion when he heard them laughing and talking and next saw them falling on the escalator. He ran to their assistance and called down to the Security Guard on the floor below. This guard came up and stopped the escalator by pressing a button.

Christman, who was the regular maintenance mechanic for this escalator, and Ward, his supervisor, both inspected the escalator after the accident and found nothing wrong with it. They also testified that there had never been any trouble with the escalator since its installation some years before. Ward testified that the escalator is constructed in such a way that if the current is interrupted causing it to stop it cannot start again unless a key is inserted in a switch. Otis offered in evidence a key switch identical to the one installed on the escalator in question and demonstrated how the contacts are held apart by a spring when the current is interrupted so that the points of contact cannot be brought together thereafter without the use of a key. He also explained that the escalator would automatically stop in the event that something became jammed between moving parts and that it could not start up thereafter without the key switch being utilized.

Mr. Steel, the escalator engineer, explained that the speed of the escalator is governed by the cycles in electrical power which is 60 cycles uniformly throughout the United States. He explained that the only way the escalator could slow down would be as a result of a slow down in the cycles which would necessarily cause a slow down of all electric motors and clocks in the area and could only result from a serious problem in the generating station providing electricity for a large area. He also explained in detail that the escalator’s components were such that if the escalator stopped it could not start up on its own. In his opinion, it was not possible for the escalator to have jerked, surged or made an erratic or funny movement without at least coming to a stop. He offered as an explanation for Mr. Sage’s feeling of a funny movement or surge as Sage’s reaction as he suddenly changed from the speed of walking onto the escalator to the greatly reduced speed that the escalator travels of approximately one-third the speed at which a person normally walks. He also surmised that Mr. Sage’s funny movement might have been the vibration transmitted along the stairs as the two girls were tumbling down. Finally, Mr. Steel explained that if the escalator were jammed and brought to a forceful stop as with a jerk, the kinetic energy built up by this heavy moving equipment would necessarily cause damage to some parts of the escalator, and the absence of such damage necessarily precluded a sudden stop or jerk.

The jury heard all this testimony and necessarily concluded that the escalator did not malfunction and that plaintiff’s fall was more probably due to her own failure to take adequate precautions as she rode the escalator. They may have inferred from the- testimony of Mr. Labrousse that as plaintiff and her companion were laughing and talking they were inattentive and lost their balance or they may have been impressed with some evidence elicited from plaintiff on cross examination that her attention was focused on a napkin that was caught in the escalator parts and which she called to her companion’s attention just before they fell. In any event, plaintiff’s evidence was not compelling and the jury had a sufficiency of evidence before it to conclude that plaintiff did not prove her case of a defect in the escalator. For us to reverse would constitute an invasion of the fact finding function of the jury.

For this reason plaintiff’s reliance on Wolverton v. City Stores Co., 363 So.2d 1321 (La.App. 4th Cir. 1978) is misplaced. There the court was faced with an appeal from a judgment in favor of plaintiff and concluded:

“Under the circumstances it is difficult to say that the trial judge committed manifest error when he concluded, as a finding of fact, that the escalator had made some sort of jerk which caused Judy to fall and injure her knee.”

A reading of the Wolverton case reveals that the quality of the evidence presented by defendant to show that the escalator could not have jerked was far less convincing than what was placed before the jury in the instant case, which may explain why the results in the trial courts were different in the two eases. However, the same principle which led us to affirm in Wolverton dictates the same result in this case; i.e., we cannot say that the jury was clearly wrong in concluding adversely to plaintiff on her attempt to prove that the escalator malfunctioned.

Finally, plaintiff assigns error in the trial courts allowing six peremptory challenges to each of the defendants. The record does not show that an objection was timely made to this decision by the trial court so that the objection was waived. LSA-R.S. 13:3052. Even if an objection had been made it would have been meritless because C.C.P. Art. 1764 allows six peremptory challenges to each side. Otis Elevator Company and the building owner were not on the same side of this lawsuit but were parties to a third party demand filed by the building owner.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.


author: GARRISON, Judge.

text:
    CITICORP PERSON-TO-PERSON FINANCIAL CENTER, INC. v. Diane Radke, Wife of/and George D. FEE.
    No. 12196.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1982.

      Caryl H. Vesy, New Orleans, for plaintiff-appellee.
    Matthews & Breeden, Patrick D. Bree-den, New Orleans, for defendant-appellant.
    Before SCHOTT, GARRISON and KLEES, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court maintaining Citicorp’s exception of no right and/or cause of action to maintain a class action and dismissing the class action demand. From that judgment, which we affirm, the Fees appeal.

On September 13, 1979, Citicorp sued the Fees on a promissory note. On October 8, 1979, defendants answered and reconvened against Citicorp. On October 23,1979, Citi-corp answered the reconventional demand. On January 9, 1980, Citicorp filed an exception of no right and/or cause of action to maintain a class action.

The Fees had discovered variances between the note and mortgage in that the note called for interest computed on the outstanding balance until paid, while the mortgage recited that interest run from maturity and the note provided for 119 payments of $168.00 and one payment of $408.68, while the mortgage calls for 120 payments of $168.00. The Fees further discovered that Citicorp had 349 other notes where a variance between the note and the mortgage existed. The class action sought to litigate the issue: whether Citicorp can use executory process where the note and mortgage disagree.

While a common question of law is a necessary element of a class action suit, a common question of law alone is insufficient:

“The original federal class action from which our Article 591 was adapted provided for three kinds of class actions, the so-called ‘true’, ‘hybrid’, and ‘spurious’. The hybrid and spurious class actions generally required no more connexity between the rights of the representative and of the absent members than the existence of a common question of law or fact, whereas the true class action required a stronger relationship between the claims. Thus, we are satisfied that, in rejecting the hybrid and spurious class actions our legislature intended that there be a relationship between the claims greater than simply that of sharing a common question of law or fact.
* * * * * *
“In determining how the legislature intended the courts to define and apply the concept of allowing a class action to enforce rights with a common character, we are mindful of the basic goals or aims of any procedural device: to implement the substantive law, and to implement that law in a manner which will provide maximum fairness to all parties with a minimum expenditure of judicial effort. Implicit, then, in decision that rights are of a common character is a consideration of the extent to which a clear legislative policy might be thwarted, or hampered in its implementation, by the lack of availability of the class action device.
“But this does not end the inquiry. Fairness to the parties demands at the least that the relationship between the claims of members of the class should be examined to determine whether it would be unfair to the members of the class, or to the party opposing the class, to permit separate adjudication of the claims. In determining whether it would be unfair to require separate adjudications, for instance, the courts should consider the precedential value of the first decision, as well as the extent of injustice that will be produced by inconsistent judgments in separate actions. Another factor to be considered, for example, is the size of the claims of the absent members of the class, for the greater the claim, the greater the interest of its owner in prosecuting it in a separate action.
“We should note once again that existence of a common question of law or fact does not by itself justify a class action, even though the parties be too numerous to be joined practicably and even though adequate representation is afforded by the typical member or members of the class who are parties to this suit. To this extent, the criteria of the revised Federal Rule 23 had been rejected by our legisla-, ture.”

Stevens v. Bd. of Trustees of Police Pension Fund, 309 So.2d 144, 150-151 (La.1975).

We agree with the finding of the trial judge that there exists here only a common question of law and that no other connexity exists. We note that the trial judge is granted “considerable discretion” and we cannot conclude that he abused his discretion by failing to certify a class where a number of the debtors have not defaulted on the loans and where Citicorp has attempted foreclosure by executory process on only one loan — the instant appeal.

For the reasons discussed, the judgment of the district court is affirmed.

AFFIRMED.


author: CHEHARDY, Judge.

text:
    August T. WETZKA, et al. v. BIG THREE INDUSTRIES, INC.
    No. 12251.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1982.

      Reynolds, Nelson & Theriot, Charles W. Nelson, Jr., New Orleans, for plaintiffs-ap-pellees.
    Christovich & Kearney, C. Edgar Cloutier, New Orleans, for Big Three Industries, Inc., defendant-appellant.
    Taylor, Porter, Brooks & Phillips, W. Arthur Abercrombie, Jr., Baton Rouge, for The Pace Companies and Jacobs Engineering Group, third party defendants-appel-lees.
    Before SAMUEL, BOUTALL and CHE-HARDY, JJ.
   CHEHARDY, Judge.

Defendant, Big Three Industries, Inc. (Big Three), appeals a district court decision in favor of plaintiffs, August T. Wetzka and Septime O. Bossier, Jr., and against the defendant in the amount of $71,000 together with legal interest from date of judicial demand. Costs were also assessed against the defendant.

In an additional judgment all actions against The Pace Companies (Pace) and Jacobs Engineering Group (Jacobs) were dismissed; and pursuant to a motion to fix expert fees, an amended judgment was issued awarding Max J. Derbes, Inc., $1,150 and awarding G. A. Heft Engineers, Inc., $2,840.08.

At a trial on the merits of the case Wetz-ka testified that he and Bossier are the owners of a tract of land in St. Charles Parish bounded on its four sides by Airline Highway, Edgewood Drive, property belonging to Shell Oil Company, and land belonging to the Norco Sewerage District. He testified that on the other side of Edge-wood Drive his neighbor is Big Three, and he added his and Bossier’s parcel of land contains approximately 5.86 acres.

Wetzka explained there is no access to his property from Airline Highway, and the only access to it is from Edgewood Drive. He said that during the years since 1951 he had never seen the road impassable as a result of flooding, nor had his own property ever flooded. Wetzka added the property is zoned for light manufacturing. In 1951, he stated, his wife (from whom he inherited the subject property) and the prior owner of the tract now belonging to Big Three each “gave twenty-five feet to a road.” In 1959, he said, the sewer district then built Edgewood Drive as a shell road at its own expense.

Wetzka stated that although he knew Big Three was going to put a blacktop road at Edgewood Drive, he did not become aware that it would be elevated until September of 1977. He also said although the road was elevated previously only 8 to 10 inches above his property, after reconstruction the road was elevated to a height of approximately 5 feet above his acreage. He added that prior to reconstruction he could drive a vehicle off the road onto his property but subsequent to that work there was no way to drive a truck or car off the road. Wetz-ka further said the ditch between his property and Edgewood Drive is filling up with debris and no one from Big Three ever consulted him about the proposed elevation of the road prior to its construction.

Nelson Kuglar, secretary-treasurer for the sewerage district at Norco, said he had held that position since 1957 and added the sewerage district property is north of the plaintiffs’ property. He testified he had never seen Edgewood Drive flooded to an extent that it was impassable and no one at the sewerage district had been consulted about the road prior to its reconstruction. He added the sewerage district property was raised only 1.3 feet above grade when the plant was built.

John Walden, project engineer for Big Three, stated it was necessary to reconstruct Edgewood Drive because it was inadequate for the company’s trucks, and it was not high enough to insure access to and egress from the plant in bad weather. He said the road was previously 3 feet above sea level and it was elevated another 3 feet in reconstruction, as was recommended by Pace, Big Three’s engineering contractor.

Walden stated that pursuant to learning Shell Oil Company had constructed its plant on neighboring property at 7.8 feet above mean Big Three also set its plant floor at 7.8 feet above sea level, and set the road, Edgewood Drive, approximately 1 foot below the plant level. He also said studies from the U.S. Corps of Engineers showed, according to the 100-year flood level, that the road should have been constructed even higher; however, these studies were not received prior to the beginning of construction. He also admitted he had never attempted to learn if the drainage characteristics at the Shell plant were similar to those at Big Three, and he said he “assumed” the property belonging to the plaintiffs was going to have to be filled if it was to be developed. He added the slope of the road was within the maximum allowed by the St. Charles Parish ordinance covering road design.

Henry W. Tatje, III, an appraiser for Max J. Derbes, Inc., testified that selling the plaintiffs’ property as one parcel the estimated value would be $90,000, and if it were subdivided into lots its value would be $100,000. He said the only way of estimating the damage done by the road to the subject property was by a cost to cure method. In this case he believed the damage done was through loss of access to the property by vehicular traffic and psychological effects seriously affecting marketability. However, he did not think there were any serious drainage problems on the plaintiffs’ land at that time.

David Garred, vice president of G. A. Heft Engineers, Inc., stated the surface of Edgewater Drive is approximately 4 feet above the plaintiffs’ property. He said the slope of the sides of the road is below the minimum standards he would recommend for erosion control, which will cause the ditch to become clogged. He also stated the slope of the road, according to the plans, encroaches on the subject property by approximately 4 feet.

Garred explained that to raise the Wetz-ka-Bossier property back up to within 1 foot of the road would require 30,000 cubic yards of fill at a cost of approximately $190,000. He said another alternative was to provide a continuous slope along the property in order to make it accessible to vehicles at any point along the road. He estimated this remedy would require 11,891 yards of fill with a resultant cost of $71,344. The third alternative — providing a ramp or driveway from the road onto the land — he estimated would cost $4,284 per ramp after deduction for normal access.

Joe Durritt, accepted by the court as an expert in engineering, estimated the difference in cost between building such a ramp before the construction of Edgewood Drive and afterwards was approximately $960. He felt this was an appropriate ingress and egress to a light industrial site.

Risdon S. Wood, accepted by the court as a real estate broker, developer and appraiser, stated that considering selling the plaintiffs’ land in two tracts and thereby having to provide two access ramps at a cost of approximately $1,000 each, this cost was offset by the substantial benefit provided to the property by the hard surface road. He stated he had, at some time, seen water covering the road prior to construction, although it was not impassable.

LSA-C.C. art. 667 states:

“Although a proprietor may do with his estate whatever he pleases, still he can not make any work on it, which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him.”

LSA-C.C. art. 668 also establishes that one can do whatever he pleases on his own ground if it merely causes his neighbor some inconvenience (such as raising his house, resulting in darkening the lights of his neighbor’s house) rather than damage.

In Chaney v. Travelers Insurance Company, 259 La. 1, 249 So.2d 181 (1971), the court stated it would not follow the majority decision of Reymond v. State Department of Highways, 255 La. 425, 231 So.2d 375 (1970), in those statements by that court regarding LSA-C.C. art. 667, which limited the applicability of that article to structural changes in or on the land and excluded activity on the property. Instead, the court in Chaney stated that, following an uninterrupted civilian tradition, Louisiana courts have understood LSA-C.C. art. 667 to cover constructions as well as activities on an estate that will cause unwarranted harm to another estate.

However, in Hero Lands Company v. Texaco, Inc., 310 So.2d 93, 100 (La.1975), the court expressly stated in a per curiam opinion:

“ * * * We have not held that allegations of damage based upon a depreciation of land value because of ordinary constructions and activities on a neighbor’s property necessarily state a cause of action. The opinion has held that allegations that the maintenance of an ultra-hazardous construction on defendant’s servitude has caused them damage does under the factual allegation state a cause of action. * * * ”

That rationale was similarly followed by this court in Charia v. Stanley, 359 So.2d 291 (La.App. 4th Cir. 1978), wherein we stated, discussing the holding in Hero, supra, at 293-294:

“The paragraph which describes the applicability of Article 667 makes it clear that Article 667 recovery is dependent on grounds distinct from negligence, namely, the performance of some act which is inherently dangerous to a neighbor despite the manner (negligent or nonnegli-gent) in which it is carried out. Thus, when the damage to neighboring property is shown to result from the negligent omission or commission of an act, absent proof that that act, conducted properly, is inherently dangerous to the neighbor, application of Article 667 as an additional basis for recovery is not warranted.
“The jurisprudence supports this conclusion. In many cases applying Article 667, the damage-producing activity has been one which, conducted in a normal and careful manner, nevertheless resulted in damage, thereby earning such activity the appellation “ultrahazardous activity.” See, e. g., Hero Lands v. Texaco, supra; Lombard v. Sewerage & Water Board, 284 So.2d 905 (La.1973); Langlois v. Allied Chemical Corp., 258 La. 1067, 249 So.2d 133 (1971); Fontenot v. Magnolia Petroleum Co., 227 La. 866, 80 So.2d 845 (1955); Burke v. Besthoff Realty Co., 196 So.2d 293 (La.App. 4th Cir. 1967); Daigle v. Continental Oil Company, 277 F.Supp. 875 (W.D.La.1967).”

Mandated as we are to follow this interpretation of LSA-C.C. art. 667, we cannot find that the road built at Edge-wood Drive by the defendant can be considered an ultrahazardous activity or construction. Therefore, we must hold that no recovery is possible under LSA-C.C. art. 667.

The court also said in the Hero case, however, at 97:

“It does not follow, however, that Article 667 is the only basis upon which neighbors may seek redress for damages caused by proprietors in the vicinity. Article 2315 may also serve as a basis for recovery under appropriate circumstances. But when this authority is relied upon, fault must be proven. Article 2315 contemplates responsibility founded on fault, namely, negligence or intentional misconduct, including abuse of rights. The notion of fault in this context is conduct which violates the standard of reasonableness in the community, an act that a careful and prudent person would not undertake. * * * ”

In his written opinion the district court judge found the defendant negligent in building the road by sacrificing the necessary slope, encroaching on the plaintiffs’ property and not investigating properly to determine if the road could have been built at a lower elevation in order to avoid damage to the subject acreage. There is ample evidence and testimony in the record to support this conclusion on the part of the district court judge, as noted above. The defendant did not even attempt to ascertain what sort of effect building such an elevated roadway would have on the adjoining properties of neighbors in the immediate area, simply “assuming” that all such neighboring landowners intended to build up their properties to the height of that road. Such a disregard of the consequences to the neighbors, combined with deficient construction of the road in regard to its slope and boundaries, and with resultant injury, as in this case, can only be looked upon as negligence, thereby satisfying the requirements of fault articulated in LSA-C.C. art. 2315.

Nor can we agree with defendant’s contention that the district court erred in assessing damages. In Ewell v. Petro Processors of Louisiana, Inc., 364 So.2d 604 (La.App. 1st Cir. 1978), the court said at 608-609:

“There is no hard and fast rule in Louisiana as to the measure of damages in cases such as this. In some cases involving immovable property our courts have used the cost of restoration as the measure. Wilson v. Scurlock Oil Co., 126 So.2d 429 (La.App. 2nd Cir. 1960); Melancon v. Oilfield Lubricant Services, Inc., 292 So.2d 908 (La.App. 1st Cir. 1974). In other cases, the difference between the value of the property before and after the damage has been the measure. Womack v. Travelers Ins. Co., 258 So.2d 562 (La.App. 1st Cir. 1972); Curole v. Acosta, 303 So.2d 530 (La.App. 1st Cir. 1974). In one case, a combination of the two methods was used. Daspit v. State, Department of Highways, 325 So.2d 368 (La.App. 3rd Cir. 1975).
“We think that the proper measure of damages must be determined from the circumstances of each case, considering such factors as the extent of the damage; the use to which the property may be put; extent of economic loss, both as to value and income; and the cost of and practicability of restoration.”

In the present case, plaintiffs’ expert testified it would be extremely difficult to estimate damages in any way other than the cost to cure method. Although defendant presented expert testimony regarding the offsetting of damages due to enhancement of the property by the subject road, and testimony was also presented regarding the feasibility of ramp installations, the continuous slope access was a fair measure of damages considering that prior to construction of the road the plaintiffs did have access to their property at all points bordering the roadway. We cannot, therefore, find that abuse of much discretion that would allow us to disturb the district court’s award. Reck v. Stevens, 373 So.2d 498 (La.1979).

Defendant also argues that the trial court judge erred in granting expert witness fees in accordance with invoices submitted by those experts. The court noted in State Department of Highways v. Kornman, 336 So.2d 220 (La.App. 1st Cir. 1976), that the agreement between an expert and the party for whom he testifies is not the sole criterion to set the amount to be taxed as court costs for his services, but to alter an award an appellate court must find the trial judge abused the great discretion properly accorded him in such matters. In Cypress-Black Bayou Rec. & W. Con. Dist. v. Campbell, 259 So.2d 363 (La.App. 2d Cir. 1972), the court also said that absent an abuse of discretion the appellate court should not disturb the amount actually charged by the expert for his services, and the amount of charges should be taken into consideration by the court in fixing a fair and reasonable amount commensurate with the time expended by a witness in preparation for trial and his appearance in court. In State Department of Highways v. Manning, 322 So.2d 362 (La.App. 2d Cir. 1975), however, the court said that a party cannot claim the charges made by the expert for time spent in consultation with his legal counsel prior to trial.

In State Department of Highways v. Gordy, 322 So.2d 418 (La.App. 3d Cir. 1975), the court stated at 423-424:

“The parties to an expropriation suit may engage appraisers of their choice, and they may agree to pay those experts specified fees for their services. The experts may also testify as to the time they spent in preparatory work and in testifying. However, an agreement entered into by a party as to the fee which an expert appraiser is to receive, or the statement of the expert as to his charges or even the actual payment of such a fee to the expert, are not binding on the court and are not criteria to be used by the court in fixing the expert fees which are to be assessed as costs in the suit. LSA-R.S. 13:3666; State v. Donner Corporation, 236 So.2d 841 (La.App. 3 Cir. 1970); Recreation and Park Commission v. Perkins, 231 La. 869, 93 So.2d 198 (1957); State Department of Highways v. Black, 207 So.2d 583 (La.App. 3 Cir. 1968).
“An expert appraiser who testifies in an expropriation suit is entitled to reasonable compensation for his appearance in court and for preparatory work done by him, but the fees allowed him and taxed as costs must be reasonable and they must be somewhat in line with the fees heretofore allowed by the courts of this state in other similar cases. State, Department of Highways v. Black, supra. The fees allowed expert witnesses also should be “based on the relative usefulness-of their respective testimony.” Melancon v. Oilfield Lubricant Services, Inc., 292 So.2d 908 (La.App. 1 Cir. 1974).
“In determining whether the fee allowed an appraiser and taxed as costs in an expropriation suit is reasonable, we think consideration must be given to the question of whether the preparatory work done by the appraiser was reasonably necessary, whether it actually tended to show the value of the property taken or severance damages, and whether the conclusions he reached based on that preparatory work were of some usefulness in determining the award which should be made. We also believe that consideration must be given to the value of the property being taken and the amount of severance damages sustained by the landowner. An appraisal fee greatly in excess of all of the awards made is not reasonable and should be reduced.”

A review of the record reveals that the invoice of Max J. Derbes, Inc., states a charge, among others itemized therein, of $100 for conference with the plaintiffs’ attorney. Accordingly, this court will reduce the award made to that expert by $100, however, we can find no other abuse of discretion by the district court judge which would allow us to further disturb the award to these two experts, especially in view of the fact that the court’s quantum of damages awarded to the plaintiffs was based on their testimony. The court clearly, as provided by LSA-R.S. 13:3666, had the authority to tax these costs to the defendant either by a rule to show cause or from the testimony adduced at trial, as was done in the present case.

This court can find no error in the district court’s dismissal of Big Three’s third party demand against Pace and Jacobs. Regarding the standards to be applied in deciding the negligence of engineers or surveyors, the court said in Charles Carter & Company v. McGee, 213 So.2d 89, 92 (La.App. 1st Cir. 1968):

“The test of liability of one employed to render professional services on the ground that he has been deficient or remiss in the performance of such services is well stated in Pittman Construction Co., Inc. v. City of New Orleans, La.App., 178 So.2d 312, from which we quote with approval the following:
‘In determining the liability of Go-dat, the same standard of care applied in the case of architects, physicians, attorneys, and others engaged in professions requiring the exercise of technical skill should be applied. The test is whether he performed his service in accordance with the skill usually exercised by others of his profession in the same general area; and the burden of proving he did not, is upon the party making the charge, in this case the City, third-party Plaintiff. The City has not discharged this burden here because all expert testimony vindicates the professional skill and judgment exercised by Godat in this case.’
“The Court further commented that: ‘ “The undertaking of an architect implies that he possesses skill and ability, including taste sufficient to enable him to perform the required services at least ordinarily and reasonably well, and that he will exercise and apply in the given case his skill and ability, his judgment and taste, reasonably and without neglect. But the undertaking does not imply or warrant a satisfactory result. It will be enough that any failure shall not be by the fault of the architect.” * * *
‘Further, use of the term “architect” is intended to cover “engineers” as well * * * expert testimony is needed to establish lack of care and resulting negligence on the part of architects and engineers.’
“We see no reason why the above stated rule should not apply to surveyors.”

In the present case no expert testimony was presented establishing lack of care or resulting negligence on the parts of these third party defendants. Because the burden of establishing such was on Big Three, third party plaintiff, its demand against these two parties was properly dismissed.

For the reasons assigned the district court judgment is amended and the award made to Max J. Derbes, Inc., for expert fees is hereby reduced to $1,050. In all other respects the trial court judgment is affirmed. Costs in this court are to be paid by defendant-appellant.

AMENDED AND AFFIRMED.


text:
    Honora F. GRAVOIS v. Louis OCKMOND and Mildred O. Landry.
    No. 12263.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1982.
    Writ Denied April 15, 1982.
    J. Arthur Smith, III, Baton Rouge, for plaintiff-appellant.
    Martin, Himel, Peytavin & Nobile, John L. Peytavin, Lutcher, for Louis Ockmond, defendants-appellees.
    Before SAMUEL, BOUTALL and CHE-HARDY, JJ.
   CHEHARDY, Judge.

Plaintiff Honora F. Gravois appeals a district court decision in favor of defendant Louis Ockmond and against the plaintiff, sustaining that defendant’s exception of no cause of action and dismissing the plaintiff’s suit as to Ockmond at plaintiff’s costs.

Gravois alleges in his petition that defendants Ockmond and Mildred O. Landry maliciously and without probable cause instituted criminal proceedings against the plaintiff, causing him to be falsely arrested, imprisoned and defamed. He further avers that at 9 p. m. on Sunday, September 24, 1978, he was arrested at his home for the purported misdemeanor offense of “criminal damage to property,” and said arrest was made pursuant to an arrest warrant issued by Ockmond, a justice of the peace.

The petition also states that the warrant was purportedly supported by an affidavit signed by the other defendant, Mildred 0. Landry, citing the plaintiff for destroying property by “knocking down mail box and paper box, post, breaking it with a cement truck.”

The petition further alleged the defendants knew that the incident complained of was caused by someone else; that if the defendant Ockmond did not know of the falsity of the affidavit he should have known and, accordingly, the arrest warrant was not supported by probable cause; and that Ockmond acted in “bad faith” and with “ill will” toward the plaintiff due to a grudge he carried against the plaintiff regarding nonpayment of a debt Ockmond owed Gravois and regarding an argument over the incident which was complained of by defendant Landry.

Explaining the peremptory exception raising the objection of no cause of action, the court said in Bamber Contractors, Inc. v. Henderson Bros., Inc., 345 So.2d 1212 (La.App. 1st Cir. 1977), at 1214:

“The peremptory exception raising the objection of no cause of action is utilized to raise the question of whether the plaintiff’s petition alleges a particular grievance for which the law affords a remedy to anyone. La.-C.C.P. art. 927(4); Hero Lands Company v. Texaco, Inc., 310 So.2d 93 (La.1975); American Bank & Trust Company v. French, 226 So.2d 580 (La.App. 1st Cir. 1969); McMahon, ‘Parties Litigant in Louisiana,’ 11 Tulane L.Rev. 527 (1937).
“The well-pleaded facts of the petition are accepted as true for the adjudication of the peremptory exception raising the objection of no cause of action; all doubts are resolved in favor of the sufficiency of the petition. American Bank & Trust Company v. French, supra; Bielkiewicz v. Rudisill, 201 So.2d 136 (La.App. 3rd Cir. 1967).
“No evidence is admissible at any time to support or defeat the peremptory exception raising the objection of no cause of action. La.-C.C.P. art. 931; American Creosote Company v. Springer, 257 La. 116, 241 So.2d 510 (La.1970); American Bank & Trust Company v. French, supra.
(Emphasis ours.)

Addressing the issue of judicial immunity the court said in Conques v. Hardy, 337 So.2d 627 (La.App. 3d Cir. 1976), at 629-631:

“ * * * Plaintiff’s principal argument against immunity for Justice of the Peace Hardy is that he was acting beyond his jurisdiction when he issued the warrant of arrest for young Conques. In plaintiff’s earlier suit against the sheriff of St. Martin Parish (Conques v. Fuselier, supra), we said: ‘Justice of the Peace Hardy improperly issued a warrant for young Conques’ arrest without jurisdiction over the minor. . . . ’ Our authority for this conclusion is LSA-R.S. 13:1569 and 13:1570, which exclude justices of the peace from the enumeration of courts and judges having jurisdiction over juveniles. We noted, however, that Article 931 of our Code of Criminal Procedure authorizes the issuance of warrants by justices of the peace. The question is, was defendant’s act of issuing a warrant for Edward Conques’ arrest an act so far beyond his general warrant authority as to make him liable for resultant damages? In our opinion, it was not.
“We believe the definitive case on an inferior magistrate’s liability for damages resulting from acts exceeding his jurisdiction is Berry v. Bass, 157 La. 81, 102 So. 76 (1924). In that case, the sheriff and mayor were sued for false arrest and false imprisonment. The court disposed of the false arrest charge by holding that there simply was no arrest. The court then held that the magistrate-mayor had exceeded his jurisdiction by imprisoning plaintiff instead of giving him the right to pay a fine. The court explained:
‘But in one sense the mayor exceeded his jurisdiction; that is to say, he imposed a penalty unauthorized by the ordinance, and therefore in excess of his powers. But it is none the less true that in imposing that sentence he was acting judicially and without malice.’
An exhaustive discussion of previous jurisprudence on the point of liability of judges and justices of the peace for acts in excess of their jurisdiction followed. Justice St. Paul, writing for the Berry court, summarized prior jurisprudence this way: ‘In all of the foregoing (cases) it will be observed that our court has laid no special stress upon any distinction between inferior magistrates and judges of superior jurisdiction . . .; but the cause of action (against the judges) has been laid principally upon malice and corruption. It is true it was twice laid on want of jurisdiction, Bore v. Bush, 6 Mart.(N.S.) 1, and Lafon v. Dufrocq, et al., 9 La.Ann. 350; but in Buquet v. Watkins, 1 La. 131, the court (Porter, J.) was not prepared to say that the mere imposition (in good faith) of a penalty beyond that provided for by law was such acting out of the jurisdiction of the court as to authorize the infliction of damages . . . . ’
“According to the Berry court, the trend was to hold inferior magistrates, including justices of the peace, to the same accountability in the exercise of their functions as the judges of superior courts. In the opinion, malice is recognized as an element of an action against the magistrate who has exceeded his jurisdiction by imprisoning a defendant. The court explained:
‘Where they (i.e., judges) have exercised their function in good faith, without malice and corruption, they should not be held liable for errors of judgment, even in respect to the extent of their jurisdiction, or of their powers under the laws which they are called upon to enforce.’
“Plaintiffs do not even allege in their petition that defendant acted maliciously or in bad faith in exceeding his jurisdiction. The trial judge states in his written narrative that defendant was in good faith and was free of malice or corruption. Therefore, according to the rule of Berry, defendant is immune from liability.
“Plaintiff would distinguish Berry from the instant case on the grounds that it does not deal with a false arrest but instead with a false imprisonment. The rule of law of Berry is a general one, which applies to both arrests and imprisonments. In fact, the rule appears to be one of general application to all cases where judges in good faith and without malice exceed their jurisdiction. The Berry opinion recognizes that the determination of jurisdiction is a judicial duty, and that an honest good faith error in such a determination is within the rule of immunity of judges from damages resulting from acts performed in their judicial capacity.
“We conclude, therefore, that judicial immunity will protect defendant from his honest error of judgment in this case.
“We feel that this is an appropriate occasion to recall the purpose of judicial immunity. Prosser justifies the rules’ existence with this explanation:
‘Even though a cynic might be forgiven for pointing out just who made this rule, the reason is of course not a desire to protect the corrupt, malicious, misbehaving official, but rather the necessity of preserving an independent judiciary who will not be deterred by the fear of vexatious suits and personal liability, together with the manifest unfairness of placing any man in a position where his judgment is required, and at the same time, holding him responsible according to the judgment of others. Prosser, Law of Torts, 4th Ed. 1971, 1987-88.’
“The United States Supreme Court echoed the same sentiment in Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967).”

As noted in Bamber Contractors, Inc., supra, as well as in Lucas v. Ludwig, 265 So.2d 245 (La.App. 4th Cir. 1972), for purposes of an exception of no cause of action, all factual allegations of a petition must be taken as true. The petition in the present case alleges that Ockmond acted in bad faith and with ill will toward the plaintiff due to a grudge regarding a debt between the two parties and a prior argument. The petition also states that the defendants acted maliciously and without “probable cause.” However, there is no allegation that Ockmond was acting outside his jurisdiction. Plaintiff, to allege a cause of action against this defendant, must show not only malice or corruption but that defendant was acting beyond his jurisdiction. Under our interpretation of Conques, supra; Berry v. Bass, 157 La. 81, 102 So. 76 (1924); and Cleveland v. State, 380 So.2d 105 (La.App. 1st Cir. 1979), the factual allegations of the plaintiff’s petition, therefore, if taken as true, do not state a cause of action and, accordingly, dismissal of the suit on the exception of no cause of action was proper.

For the reasons assigned, the district court decision is affirmed.

AFFIRMED.


author: BARRY, Judge.

text:
    Michael J. CROWLEY v. Mrs. Sandra Jones CROWLEY.
    No. 12282.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1982.
    Lawrence A. Wheeler, New Orleans, for plaintiff-appellant.
    William R. Brough, New Orleans, for defendant-appellee.
    Before REDMANN, GULOTTA and BARRY, JJ.
   BARRY, Judge.

Plaintiff appeals a judgment which dismissed his Rule for Possession of property acquired after his judicial separation from the defendant. We affirm.

Plaintiff and defendant were married on August 17, 1974 and judicially separated on March 7, 1975. In 1976 they reconciled but did not re-establish the community regime by authentic act as required by LSA-C.C. art. 155. On April 12, 1979 the subject property was purchased in the names of “Sandra Jones, wife of, and Michael J. Crowley”, and the act of sale contains a declaration of family home. On October 24,1980 plaintiff and defendant were again judicially separated.

On November 13, 1980 plaintiff sent a certified letter to his estranged wife requesting her and “other occupants” to vacate the premises, otherwise a monthly rental would be due. On November 22, 1980 plaintiff served a five day notice to vacate because of non-payment of rent, and on December 3, 1980 he filed this Rule for Possession of the property. The Trial Judge concluded that the parties were co-owners of the realty and each has the right to use the property without payment of rent.

Plaintiff and defendant were judicially separated and the community regime had been terminated when the “family home” was purchased in each of their names. Their subsequent reconciliation vitiated the legal separation, but the community estate was not re-established.

. Plaintiff argues that the property is part of his separate estate because it was purchased with his money after the legal separation. Defendant responds that she contributed to the down payment, the title shows her as a co-owner, and she signed the mortgage and promissory note in solido with plaintiff.

Plaintiff’s Rule for Possession of the premises is a summary proceeding for return of possession to the rightful owner or lessor. Papa v. Sullivan, 268 So.2d 326 (La.App.2d Cir. 1972). An appropriate defense to eviction is ownership or equity in the property. The only matter before the lower court was plaintiff’s right to evict the defendant. The First City Court is without jurisdiction to judicially determine ownership of property and that question is not before this court.

Plaintiff had the burden of proving a landlord-tenant relationship. Eznack v. George, 253 So.2d 693 (La.App.3d Cir. 1971). The record plainly shows that plaintiff failed to prove clear title to the property for eviction purposes.

For the foregoing reasons the judgment of the lower court is affirmed with appellant to pay all costs of this appeal.

AFFIRMED.

      . The act of sale was not certified but was identified by both parties.


text:
    Vernon V. PALMER and Scottie L. Palmer v. C. Scott REIS, Rebecca Cunard, and Vincent Scalesi.
    No. 12296.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1982.

      Fabacher & Murov, Lawrence B. Fabacher, II, New Orleans, for plaintiffs-appellants.
    Reis, Stanhope & McKay, David C. Stan-hope, New Orleans, for defendants-appel-lees.
    Before REDMANN, GULOTTA and BARRY, JJ.
   BARRY, Judge.

This matter was tried before Commissioner Rivet sitting Ad Hoc with the District Court. His recommendation was adopted by the lower court from which plaintiffs appeal. The Statement of the Case, Contention of the Parties, and Facts not in Dispute are accurate, well written, and supported by the record, and we adopt them in their entirety:

STATEMENT OF THE CASE
“Plaintiffs seek damages for an alleged breach of a written lease and for allegedly tortious conduct by defendants, while they were in possession of plaintiffs’ home as tenants, and damages are also sought against a defendant, not party to the written lease, such damages being based upon a quantum meruit for unauthorized use of the premises.
CONTENTION OF PARTIES
“Plaintiffs contend, as to the defendants, lessees, that they sub-leased the premises without plaintiffs consent, contrary to the expressed terms of the lease; that the premises were used as a law-office, contrary to the lease conditions, and that defendants caused damage to plaintiffs’ property, in a greater extent than just usual decay, wear and tear, as allowed by the lease.
“As to the defendant, not a party to the written lease, plaintiffs contend that he occupied the premises without their consent and used same for an office, and that he should be made to compensate plaintiffs, based upon a quantum meruit.
“Plaintiffs further contend that all three defendants are liable in solido for the value of possessions and fixtures which were discovered missing or damaged immediately after the defendants vacated the premises, and that all three defendants are likewise liable in solido in damages for mental anguish, inconvenience and aggravation experienced by plaintiffs.
“General denials were filed by all three defendants. Some ten months after issue was joined defendants, lessees, filed a reconventional demand against plaintiffs. Said reconventional demand has no merit since it was filed without leave of court and since there was no service thereof made upon plaintiffs.
FACTS NOT IN DISPUTE
“Plaintiffs, owners of the premises 3715 Coliseum Street, entered into a written contract with defendants, on August 10,1976, for the lease of said premises, in its furnished condition, for a term of 12 months beginning September 15, 1976 and terminating September 15, 1977, at a monthly rental of $500.00, the premises to be used for residental purposes only.
“Pursuant to the lease requirements defendants deposited $700.00, $500.00 of which was to be used for the last month’s rent and $200.00 was a damage deposit, to be refunded upon termination of the lease, if the property, at that time, is in the same condidtion [sic] as when rented, wear and tear excepted.
“The lease provided that there would be no renting, or sub-letting or granting use or possession of the premises to any other party without the written consent of the lessors.
“Plaintiffs left for England on September 9, 1976, leaving the possession of the premises to the mother of plaintiff-wife, who was to turn over possession to defendants on September 15, 1976.
“The defendants, lessees, permitted the defendant Vincent Scalesi to occupy the bedroom on the second floor of the premises over a period of six months, from February of 1977 to September of 1977.
“The defendant-husband lessee, on occasion, did see clients in the premises 3715 Coliseum Street. .
“From September, 1976 to August, 1977, the premises were visited by ten individuals at various times, and on each occasion the premises were observed to be well kept and in good order, and on these various visits no clients of defendant-husband were observed in the premises.”

We also approve and adopt the Commissioner’s Findings, except for the holding that plaintiffs are liable for return of the lessees’ damage deposit. Following is that portion which we adopt:

FINDINGS
“Admittedly, plaintiffs left for England on September 9th and defendants did not take possession of the premises 3715 Coliseum Street until September 15th. The plaintiff husband testified that his mother-in-law occupied the premises from September 9th to September 15th and was to turn over the premises to defendants on September 15th, in the exact condition in which plaintiffs left the premises on September 9th. No proof was offered to support this testimony. Plaintiffs, being absent from the scene had no way of knowing personally that the mother-in-law did occupy the premises during the interim, or that what was turned over to defendants was in the exact condition as existed on September 9th. The mother-in-law was not produced as a witness, and consequently it became impossible for plaintiffs to state what was turned over to defendants or the condition of what was turned over to them. The evidence presented did disclose that while she occupied the premises, plaintiff-husband’s mother-in-law, on occasion, entertained friends therein. Under the circumstances, it was impossible for plaintiffs, returning from England some eleven months later, to say exactly what was in their home or the condition of the contents thereof, when same was turned over to defendants on September 15th.
“Plaintiffs contended that they discovered furniture damaged, plants missing, paintings and etchings damaged, a handmade guilt ruined, a stereo set disconnected, a white sofa soiled, a poetry book missing, two phonograph records and two pieces of crystal missing. They presented several inventories made after their return from England, with values placed thereon by the plaintiff husband. These are self serving [sic] at best and do not constitute legal proof, under the circumstances as heretofore related. The same can be said for checks drawn by plaintiffs to various payees.
“Plaintiffs failed to submit proof in support of their contention that such payments were made necessary as a result of defendants’ abuses or violation of the lease provisions.
“The evidence revealed that the defendant husband maintained a law office on Belle Chasse Highway at the time he took possession of plaintiffs’ premises, and that he continued to maintain that office thereafter. On occasion clients would call or drop by to see him but he made no appointments to meet them at the residence nor did he maintain the residence as an office.
“With respect to the occupancy by defendant Vincent Scalesi of the premises, the evidence disclosed that following a divorce from his wife in New York, he was invited as a guest, to use the upstairs bedroom, which was an extra room designated for guest-use. He paid no rent. He traveled to and from New York, where he visited with his parents, and he did not at any time have sole use or possession of the premises, nor did he conduct business therefrom, since he was, at the time, unemployed.
“Plaintiffs returned from England on August 14, 1977. Defendants were still tenants at 3715 Coliseum Street, the termination date of the lease being September 15th, 1977. Defendants agreed to vacate the premises by midnight September 1st. The $500.00 deposited for the last month was used to pay the rent from July 15th to August 15th, and defendants agreed to pay $250.00 for the two weeks occupancy from August 15th to September 1st. Plaintiffs contended that defendants failed to pay this $250.00. This claim is likewise without merit. Defendants [sic] exhibit D-3 is a cancelled check issued by defendant on August 15, 1977 to the order of the plaintiff-husband, for $250.00 and by plaintiff endorsed.
“There existed a dispute relative to utility bills. However, the evidence clearly showed that plaintiffs, who had lived in the premises during August of 1976 prior to their departure for England, realized that the utility bill would arrive after their departure. They therefore agreed with defendants that if defendants paid the bill when it arrived plaintiffs would in turn pay defendants’ last utility bill which would arrive after defendant’s departure from the premises. And payments of these bills were made in accordance wtih [sic] such agreement, plaintiffs paying the bill received after defendant’s [sic] departure, covering service from July 22nd to August 17th. But defendants occupied the premises to September 1st. The next bill received covered services from August 18th to September 19th. By stipulation the parties agreed that defendants’ share of this bill, in the amount of $217.68, for the period from August 18th to September 19th would be $100.00. The bill was paid by plaintiffs and consequently defendants are indebted unto plaintiffs for this $100.00.”
“The claim against the defendant Vincent Scalesi should be dismissed.”

Ten months after defendants’ answer was filed they reconvened for double their damage deposit plus interest and attorney fees. However, the reconventional demand was not filed with leave of court as required by LSA-C.C.P. art. 1033. Plaintiffs were not required nor did they answer the reconvention and no preliminary default was taken, therefore, any matters raised therein were not before the court. We feel the Commissioner fell into legal error in holding that “. . . since plaintiffs have failed to sustain the burden of proof in support of their claims, this $200.00 (referring to defendants’ damage deposit) should be refunded to defendants.”

For the foregoing reasons, the District Court judgment is annulled insofar as it orders return of the Two Hundred ($200.00) Dollars damage deposit to C. Scott Reis and Rebecca Cunard Reis; judgment is therefore entered in favor of Vernon L. Palmer and Scottie L. Palmer and against C. Scott Reis and Rebecca Cunard Reis in the sum of One Hundred ($100.00) Dollars, with legal interest from the date of judicial demand until paid. Each party to pay their own costs.

ANNULLED IN PART; AFFIRMED IN PART.

      . LSA-C.C.P. art. 1033. Delay for filing incidental demand
      “An incidental demand may be filed without leave of court at any time up to and including the time the answer to the principal demand is filed.
      “An incidental demand may be filed thereafter, with leave of court, if it will not retard the progress of the principal action, or if permitted by Articles 1066 or 1092.”

      . In Contention of the Parties, supra, the Commissioner properly noted that the “.. . recon-ventional demand has no merit since it was filed without leave of court. . .


author: KLEES, Judge.

text:
    Larry FREEMAN v. LEE & LEON OIL CO., INC., Bob Dufrene and Aetna Casualty and Surety Company.
    No. 12310.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1982.

      Richard K. Rathbun, Lemle, Kelleher, Kohlmeyer & Matthews, New Orleans, for defendants-appellees.
    Terrence J. Lestelle, Amato & Creely, Gretna, for plaintiff-appellant.
    Before SCHOTT, GARRISON and KLEES, JJ.
   KLEES, Judge.

This is an appeal from a judgment dismissing plaintiff’s suit for personal injuries and other losses suffered as a result of a fight. The facts are as follows: On May 29, 1979, after a day of trawling, plaintiff stopped at the Lee and Leon Oil Company dock as he had every day since the shrimping season had opened. Accompanied by his two young sons, plaintiff and a companion, Eric Tiser, had stopped to fill up their boats with fuel. Prior to filling their gas tanks, plaintiff and Tiser explained to Lee and Leon’s employee, Dufrene, that Tiser would pay for plaintiff’s gas as well as for Tiser’s own gas since plaintiff had no cash on hand. Defendant retorted that plaintiff and Tiser were trying to confuse him. Whereupon plaintiff borrowed money from Tiser and paid for the gas separately. Upon plaintiff’s return from the cashier, he discovered that Dufrene had sought out the manager to discuss the situation. Dufrene told the manager that plaintiff had a complaint to make. Plaintiff discussed the matter with Dufrene and the manager and responded that he had no complaint, other that Dufrene was “an old grouch” in the way he handled customers. This was said as plaintiff and the manager were walking away. Dufrene then attacked plaintiff without warning, knocking him to the ground. After the altercation, plaintiff was left with a lacerated lip which required 10 or 12 sutures and a small scar.

Appellant contends that the trial court erred in concluding that Defendant Bob Dufrene was not liable and that Lee and Leon Oil Co., Inc., and its insurer Aetna Casualty and Surety Company were not vicariously liable for the intentional assault and battery inflicted upon plaintiff-appellant by Defendant’s employee Bob Dufrene.

A. Liability of Bob Dufrene

In battery cases the plaintiff has the same burden of proof that any plaintiff has in any tort or damage suit. Knuckles v. Beaugh, 392 So.2d 710 (La.App. 3rd Cir. 1980). After the plaintiff meets this burden it becomes incumbent upon the defendant to prove justification or provocation for the battery and this is to be determined in light of the circumstance and facts of each individual case. Ogden v. Smith, 344 So.2d 1099 (La.App. 3rd Cir. 1977).

In the present case, the record contains the uncontradicted testimony of the plaintiff which is partially corroborated by his fishing companion, Eric Tiser, and which clearly reveals that the plaintiff was battered by Dufrene. The burden then shifted to the defendant, Dufrene, who neither answered the suit or appeared at the trial, to prove justification or provocation for the battery.

An examination of the record in the light most favorable to Dufrene, discloses that the only event which even remotely relates to a provocation is the language of the plaintiff and it is sound jurisprudence that provocation by words may, in some instances, be considered in mitigation of damages but they cannot excuse a battery. Morneau v. American Oil Company, 272 So.2d 313 (La.1973); Cappo v. Vinson Guard Service, Inc., 400 So.2d 1148 (La.App. 1st Cir. 1981).

Accordingly, there should be no other conclusion than that the trial judge erred when he ruled in favor of the defendant, Dufrene. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

B. Liability of Lee & Leon Oil Co., Inc., and Aetna Casualty & Surety Company.

C.C. Art. 2320 and the policy of the master-servant law places upon the master the responsibility of the servant’s misconduct in the scope of the master’s enterprise. Normand v. City of New Orleans, 363 So.2d 1220 (La.App. 4th Circuit 1978) Writ Denied 366 So.2d 573. Therefore when an employee’s tortious conduct is closely related in time, place and causation with his employment duties, the risk of harm is fairly imputable to the employer’s business, and the employer is held liable for the damages. Le Brane v. Lewis, 292 So.2d 216 (La.1974). Whether an employee was acting within the course and scope of his employment must be decided on the particular facts of each case. Weysham v. New Orleans Public Service, Inc., 385 So.2d 19 (La.App. 4th Cir. 1980) Writ Denied 392 So.2d 690 (La.1980).

The facts of the present case are more in line with Jones v. Sights and Sounds, Inc., 365 So.2d 15 (La.App. 4th Cir. 1978). Here, as in Jones, the intentional tortious conduct closely followed events in furtherance of the defendant-employer’s business and a careful review of the circumstances surrounding and leading up to the tortious conduct reveals that it occurred just moments after a dispute concerning the receipt of payment for gasoline.

Here, the entire episode began with the defendant’s employee believing that the plaintiff and his companion were attempting to confuse him with regard to the payment for the gasoline and thereby swindle his employer. The motive of the defendant’s employee was to protect and further the interest of his employer, particularly to see to it that he was properly compensated for his gasoline. This was clearly employment related and the tortious act which followed stemmed from this dispute.

As the entire record is before the court, the Supreme Court case of Gonzales v. Xerox Corporation, 320 So.2d 163 (La.1975) suggests that this court, for the sake of judicial economy may fix damages.

C. Damages

(1) Loss of Earnings

As a result of this altercation, plaintiff claims he lost seven (7) days earnings from trawling.

Although plaintiff and his wife testified that he would make from $200 — $300 per day, his shrimping companions stated that $160 or $170 per day was an optimum figure, discounting 20% for fuel and other optimum conditions we find that $132.00 per day for seven days amounts to $924.00.

(2) Physical and Mental Pain & Suffering

The record supports the fact that plaintiff’s lip was split and his gums could be seen through the split. The cut required an estimated 10-12 stiches and a shot to deaden the stitched area. He was also given a few days supply of pain pills. He argues that he has a permanent scar which inhibits the growth of his mustache and a small painful lump of scar tissue. The defense claims the bothersome scar tissue could be removed for as little as $100 without hospitalization. As far as the thumb or wrist problem, the plaintiff never sought medical attention beyond the initial exam by Dr. Hirsch.

Upon a review of awards granted under similar circumstances, we find that $1,100.00 would be proper. See Jacob v. Laborde, 280 So.2d 621 (La.App. 4th Cir. 1973); Munson v. Kendall, 290 So.2d 787 (La.App. 1st Cir. 1974).

(3) Special Damages

Plaquemines Parish Medical Services— $76.00

(4) Expert Fees

The plaintiff appellant is correct in his assertion that Dr. Hirsch should be awarded an expert fee for his deposition which was entered in place of his testimony at trial. Furthermore, the cost of this expert fee should be assessed against the party cast in judgment. See Corley v. West, 346 So.2d 1272 (La.App. 3rd Cir. 1977) Writ Refused 350 So.2d 673 (La.1977).

Accordingly, for the reasons assigned the judgment of the trial court is reversed and cast as follows:

It is Ordered, Adjudged, and Decreed that there be judgment herein in favor of plaintiff, Larry Freeman, and against defendant, Lee and Leon Oil Company, Inc., Aetna Insurance Company, in solido, in the full sum of Two Thousand One Hundred and No/100 ($2,100.00) Dollars together with legal interest on such sum from date of judicial demand until paid.

Expert fees due Dr. Bernard Hirsch are fixed at $150.00. All costs are assessed against the defendants. Costs of this appeal are assessed against appellees.

REVERSED AND RENDERED.

      . C.C. Art. 2320 — “Masters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed.”

      . See Deposition of Dr. Hirsch pp. 87 & 88.

      . Bob Dufrene is not cast in judgment because he never made an appearance in the case. Issue was never joined with him.