text:
    Charles BINDER v. Edgar D. McGEHEE et al.
    No. 13809.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 15, 1980.
    Rehearing Denied Jan. 26, 1981.

      Patrick J. Berrigan, Slidell, for defendant-appellee.
    Richard M. Michalczyk, Metairie, for defendant-appellant.
    Charles A. Binder, pro se.
    Before ELLIS, COLE and WATKINS, JJ.
   COLE, Judge.

The issue in this case is whether the third party defendant insurance companies have a duty to defend their insureds or whether the language of the policy clearly excludes coverage of the claim. Because we find the trial court was clearly wrong in concluding the insurance companies owed a defense to the insureds, we reverse the judgment of the trial court. Arceneaax v. Domingue, 365 So.2d 1330 (La.1978), rehearing denied 1979.

This dispute arose when plaintiff, Charles Binder, a deputy sheriff for Tangipahoa Parish, sued Edgar McGehee, a deputy sheriff for St. Tammany Parish, George Broom, sheriff of St. Tammany Parish, and the St. Tammany Parish Sheriff’s Office. Binder claimed his reputation had been damaged by slanderous remarks made by McGehee. Deputy McGehee allegedly made the following statement to a group of law enforcement officers attending a Regional Organized Crime Information Center meeting in Little Rock, Arkansas: “Don’t trust Charles Binder, he’s on the take.”

The Sheriff’s Association of the State of Louisiana provides insurance coverage for the sheriff and deputies of both parishes involved. Claims up to $15,000 are deductible, payable from the sheriff’s general fund and joint checking account with the broker. Claims from $15,000 to $50,000 are payable from the policy provided by North River Insurance Company. The next three layers of insurance are provided by International Surplus Lines Insurance Company. Defendants were informed by their insurance agent, Gray and Company, that no defense would be provided because of certain exclusionary language in the base policy.

Defendants filed a third party claim against North River Insurance Company and International Surplus Lines Insurance Company, seeking damages for the insurers’ violation of their duty to defend. In the meantime, plaintiff Charles Binder dismissed his demand against the original defendants. The trial court denied the insurers’ motion for summary judgment and granted partial summary judgment in favor of third party plaintiffs, declaring third party plaintiffs were covered by the insur-anee policy in question. A hearing was held to determine the amount of legal fees incurred by the third party plaintiffs (the original defendants) in their defense of Binder’s defamation suit. Judgment was rendered in this matter in the amount of $18,125.00. The insurance companies have appealed both the partial summary judgment and the money judgment which were rendered in favor of the third party plaintiffs.

The pertinent language of the base policy reads as follows:

“NAME OF INSURED (ASSURED):
The ‘NAMED INSURED’ shall be defined as follows:
‘Named Insured’ means each Sheriff of the Parishes of the State of Louisiana, each legally commissioned Deputy Sheriff, and each employee of the Sheriff.... Wherever the word ‘Insured’ appears herein, it will be understood to mean the Named Insured.
“EXCLUSIONS
“This policy does not apply:
(a) To any obligation for which the insured or any carrier as his insurer may be held liable under any workmen’s compensation, unemployment compensation, disability benefits law, or under any similar law, or to personal injury or bodily injury sustained by any paid full and part time law enforcement officer of the names (sic) insured directly or indirectly related to his employment by the named insured; (Emphasis added.)
“Coverage C — Personal Injury
‘Personal Injury’ means false arrest, erroneous service of civil papers, false imprisonment, malicious prosecution, libel, slander, defamation of character, deprivation of rights . . . provided that no act shall be deemed to be or result in personal injury unless committed or alleged to have been committed during the currency of this policy arising out of the performance of the duties under color of law of any duly elected or appointed office of sheriff or deputy sheriff of any Parish of the State of Louisiana as stipulated herein;” (Emphasis added.)

Under the language of the policy, plaintiff Deputy Sheriff Charles Binder is clearly an insured. The defendants Deputy Sheriff Edgar McGehee and Sheriff George Broom, are also insureds under the policy. Under exclusion (a), there is no coverage for personal injury sustained by a law enforcement officer of the named insured when that injury is directly or indirectly related to his employment by the named insured. (Personal injury is defined as including libel, slander and defamation of character.)

We find it is apparent from the facts of the case this suit is by one insured against another insured and therefore the exclusion applies. In his reasons for denying a summary judgment sought by the insurance companies, the trial court noted the intention of the insurer must have been to prevent suits by a deputy of one parish against the sheriff of the same parish. The court reasoned the exclusion was not intended to prevent suits by the deputy of one parish against the sheriff of another parish. We cannot agree. Although exclusion clauses are to be narrowly construed, they must be given effect when there are no conflicting statutes or public policy and the language is clear and unambiguous. Andrus v. Police Jury of Parish of Lafayette, 270 So.2d 280 (La.App. 3d Cir. 1972); Cormack v. Prudential Insurance Company of America, 259 So.2d 340 (La.App. 4th Cir. 1972), writ refused 1972. We find the. language to be clear. Even though it may be doubtful the insurer intended the ultimate result of the exclusionary language, if the policy language is clear, it is beyond the authority of the court to reform the contract to make the exclusionary provision apply in a manner different from the language of the policy. Continental Automobile Association, Inc. v. Hansen, 334 So.2d 437 (La.App. 4th Cir. 1976).

The only other issue pertinent to coverage is whether or not the injury sustained by Deputy Sheriff Binder was directly or indirectly related to his employment by the named insured. We find the injury was at least indirectly related to his employment because it was a statement which concerned his integrity as a law enforcement officer. The statement was made by Deputy Sheriff McGehee during the scope and course of his employment while attending a professional law enforcement meeting. The statement was made to other law enforcement officers. In his petition plaintiff seeks damages for the resulting discredit of his character and reputation before his fellow law enforcement officers. Certainly any personal injury resulting from a statement such as “Don’t trust Charlie Binder, he’s on the take,” would be felt by Binder most keenly in his capacity as a deputy sheriff. We certainly cannot say this allegedly defamatory statement and resulting injury is not related to Binder’s employment as a law enforcement officer.

Since the injury sustained was at least indirectly related to the insured’s employment and since the suit was filed by one insured against another, we hold the policy language clearly excludes coverage on behalf of the insureds. For this reason, we reverse the judgments of the trial court. Costs are assessed equally against third party plaintiffs.

REVERSED.

      . Gray and Company was also named a defendant in the third party demand but was dismissed by summary judgment because it is an insurance agency rather than an insurance company.

      . The insureds are considered to be Sheriff Broom and Deputy Sheriff McGehee. There is some dispute as to whether or not the third named defendant, the St. Tammany Parish Sheriff’s Office, is a legal entity. We need not decide this issue here because we are only concerned with the insured defendants. The St. Tammany Parish Sheriffs Office is not listed as an insured.


source: Caselaw Access Project

author: WATKINS, Judge.

license: Public Domain

text:
    June Azar CRUMP v. James C. CRUMP.
    No. 13572.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 15, 1980.

      William D. Grimley, Baton Rouge, for plaintiff-appellant June Azar Crump.
    Billy 0. Wilson, Baton Rouge, for defendant-appellee James C. Crump.
    Before ELLIS, COLE and WATKINS, JJ.
   WATKINS, Judge.

This is an action for defamation brought by a former wife, Mrs. June Azar Crump, against her former husband, Dr. James L. Crump. The trial court found that there had been no defamation. We affirm.

In an alimony hearing between those parties held in Division “B”, Family Court, East Baton Rouge Parish, Mrs. Crump gave certain testimony with regard to the source of the funds for the purchase of a Cadillac automobile which Mrs. Crump had ordered. Some time after the hearing, Dr. Crump went to the office of Walter Monsour, Executive Assistant District Attorney for the Parish of East Baton Rouge, and told him in the presence of Dr. Crump’s present wife and his lawyer that the statements made by his former wife, Mrs. June Azar Crump, in the alimony hearing with regard to her acquisition of the automobile were substantially inconsistent with certain statements made by her and her mother, Mrs. Marie Azar, in depositions taken by stipulation of counsel subsequent to the alimony hearing. The testimony, we hold, is in conflict. Dr. Crump may have gone a step further and indicated there was a possibility perjury had been committed. In any event, Mrs. June Azar Crump received a letter signed by Walter Monsour and Bob H. Hester, Assistant District Attorney, indicating allegations of perjury had been made against her, and asking Mrs. Crump to go to the District Attorney’s office to discuss the matter. Mrs. Crump saw Mr. Hester in the presence of her attorney, offered an explanation of her testimony, and no action was taken by the District Attorney’s office. The present action for defamation was later brought.

Five elements are necessary to maintain an action for defamation, (1) defamatory words, (2) publication, that is, communication to someone other than the party defamed, (3) falsity, (4) malice, actual or implied, and (5) resulting injury. See Trahan v. Ritterman, 368 So.2d 181 (La. App. 1st Cir. 1979), and the cases cited therein. If the alleged defamatory remark is accusation of the commission of a crime, the remark is defamatory per se, and falsity and malice need not be proved. See Tra-han, supra.

We find that it is unnecessary to determine whether or not the remark made by Dr. Crump in the present case was defamatory per se, as we find the truth of the remark to have been established by plaintiff’s own evidence presented before the trial court in the form of the testimony of Messrs. Monsour and Hester, the deposition mentioned above of Mrs. June Azar Crump and Mrs. Marie Azar, and the record of the proceeding in Division “B” of the Family Court, all of which were introduced by plaintiff.

Basically, Dr. Crump told Monsour that statements made by Mrs. June Azar Crump in Family Court were inconsistent with the statements made by Mrs. June Azar Crump and Mrs. Marie Azar in depositions. We have reviewed the record of the Family Court for East Baton Rouge and the two depositions thoroughly, and we agree with Dr. Crump; the statements were inconsistent. Mrs. Crump testified that she received money to buy a Cadillac from a Vince Piazza, who was a family friend who was visiting her mother, and felt that Mrs. Crump’s car was unsafe. Mrs. Marie Azar testified in a deposition taken on August 31, 1978, that she had not seen Mr. Piazza for several years. The Cadillac was a 1976 model. Furthermore, Mrs. Crump testified that her mother had given her “approval” to her taking the money (Mrs. Crump was of age, obviously) for the Cadillac, and Mrs. Azar testified that she did not know the money had been given to her daughter, and was surprised so to be told by counsel taking her deposition. Obviously, the mother’s and daughter’s versions of what transpired cannot both have been correct, although both may have been false, and there was a basis for Dr. Crump’s statement that the testimony was not credible. We might go a step further and say that, even if Dr. Crump told Mr. Monsour that there may have been perjury, his remark was true as it does appear that there may have been perjury.

Appellant contends that the truth of a remark that is defamatory must be affirmatively alleged by defendant in pleadings. Clearly, in the present case, defendant failed to raise the affirmative defense of the truth of the remark. However, plaintiff opened the whole matter by evidence presented by her own counsel in the form of testimony, the record of the proceeding in Family Court, and depositions, and cannot now be heard to insist that defendant be limited by his pleadings.

We note further that defendant pleaded privilege as an affirmative defense. A qualified privilege exists if a defamatory communication is made (1) in good faith, (2) on a matter in which the person communicating has an interest or with regard to which he has a duty, (3) to a person having a corresponding interest or duty, Toomer v. Breaux, 146 So.2d 723 (La.App. 3d Cir. 1962). Dr. Crump was quite clearly in good faith in stating that Mrs. Crump’s remarks were inconsistent. They were. Dr. Crump had a duty to report circumstances involving a possible crime (perjury) to the District Attorney’s office, and that office had a corresponding duty to receive that information. The public and all individuals have an interest that circumstances constituting possible criminal activity be brought to the scrutiny of the proper authorities, and, although reckless charges should not be accorded privileged status, remarks made in good faith setting forth charges that are well-founded and have firm factual bases are clearly privileged.

Finally, the trial court found there had been no actionable defamation. In that determination, as we have seen, we find no error.

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

AFFIRMED.


text:
    Julie Baker CHAPPETTA v. Lloyd N. CHAPPETTA.
    No. 13765.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 15, 1980.
    Elaine W. Guillot, Slidell, for plaintiff-appellant.
    G. Brice Jones, Slidell, for defendant-ap-pellee.
    Before ELLIS, COLE and WATKINS, JJ.
   WATKINS, Judge.

This is an appeal from a judgment dismissing a rule brought by Julie Baker Chappetta against her husband, Lloyd N. Chappetta, from whom she was judicially separated, for an increase in the amount of child support for their two minor children from $40.00 per week to $80.00 per week, and to obtain judgment for child support in arrears in the sum of $500.00 based on $60.00 per week from February 13, 1976, until that amount was reduced to $40.00 per week by amended judgment which petitioner in rule refers to as being dated February 3, 1978, and thereafter in that sum, and to have the husband punished for contempt of court for failure to pay child support. The amended judgment of February 3, 1978, is not in the record, and the most recent judgment fixing the amount of child support per week is a judgment dated March 8, 1976, fixing child support at $60.00 per week. The wife has appealed dismissal of her rule. We reverse and remand.

The only witness called to testify on trial on the rule was Mrs. Chappetta, whose testimony was cut short when she testified that Judge Greene of the juvenile court had ordered her husband to pay $40.00 per week in criminal nonsupport proceedings. The trial court in oral reasons held that the judgment of the juvenile court in criminal nonsupport proceedings was controlling, and rendered written judgment dismissing the rule. The law, we find, is to the contrary. A court in criminal nonsupport proceedings is without jurisdiction to reduce a judgment for child support rendered in civil proceedings. Collette v. Olivier, 309 So.2d 894 (La. App. 3d Cir. 1975), writ refused 313 So.2d 827 (1975). The proper remedy of the husband or wife against whom a judgment for child support has been rendered is to file a rule for reduction of the amount of child support. Accordingly, we hold the trial court in the present proceedings improperly held the amount the husband was ordered to pay in criminal nonsupport proceedings to be binding and amendatory of the civil child support judgment.

The wife in her brief testimony (which was, as we said, cut short) alluded to a judgment of divorce. No judgment of divorce or petition or other pleading leading to the obtaining of a divorce is in the record. We have insufficient evidence upon which to render judgment, and it does not appear from the record that this case was ever properly submitted.

We, therefore, reverse the judgment of the trial court, and remand the case to the trial court with instructions to treat the judgment of the juvenile court with respect to child support for the minor children of Julie Baker Chappetta and Lloyd N. Chap-petta as irrelevant to the present proceeding.

REVERSED AND REMANDED.


text:
    AMITE COUNTY CO-OPERATIVE v. Wallace E. HECK.
    No. 13772.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 15, 1980.
    Robert W. Stratton, Baker, for plaintiff-appellant, Amite County Co-Op.
    William R. Aaron, Baton Rouge, for defendant-appellee, Wallace E. Heck.
    Before ELLIS, COLE and- WATKINS, JJ.
   WATKINS, Judge.

This is an action upon an open account for the balance alleged to be due on that account, $6,368.78, and interest from December 30, 1977. After plaintiff had presented his case, defendant moved for dismissal of plaintiff’s suit, and the motion to dismiss was granted. We affirm the dismissal.

Amite County Co-operative, plaintiff, agreed to plant certain land belonging to defendant, Wallace E. Heck, with rye grass. The grass was planted, but a dispute arose between plaintiff and defendant with regard to whether or not the seed had come up properly. Charles Coker, manager of the Feliciana Farmers’ Co-op in Clinton, Louisiana, a branch of plaintiff co-operative, was told that the planting was unsatisfactory, and was given a check for half the balance of the account because defendant said only half the grass had germinated properly. The check was in the sum of $8,992.06. Written on the check was the statement “Endorsement hereon constitutes payment in full through Dec. 12,1977 statement”. Mr. Heck told Coker that the check was in his mind a settlement of anything owed as of that date. The check was negotiated after Coker’s conversation with a supervisor (who alone had authority to authorize a settlement), and stamped “For Deposit Only, Feliciana Farmer’s Co-op (AAL)”.

Defendant contends plaintiff’s acceptance and negotiation of the check constituted accord and satisfaction. Accord and satisfaction is an Anglo-American legal concept that has been adopted by the Louisiana jurisprudence. There are three elements to accord and satisfaction: (1) an unliquidated or disputed claim, (2) a tender of the debtor, and (3) an acceptance by the creditor. See Linda Mercantile Corp. v. Bowers, 230 So.2d 302 (La.App. 1st Cir. 1970), writ refused 255 La. 810, 233 So.2d 250 (1970). The facts are clear that the debtor, Heck, made a tender of the check in the sum of $8,992.06, and plaintiff creditor accepted and deposited the check. The record shows that both the written statement on the check and Heck’s own verbal statement made to Coker when he tendered Coker the check indicated that the check was given in full settlement of the account. Coker’s own testimony indicates that there was a dispute as to whether or not the rye grass had come up properly. There is nothing that would indicate that Heck was in bad faith or unreasonable in taking the position that the grass had not come up properly, as Coker himself testified that the grass had not come up properly, but would do so in time. Coker may have been right that the rye grass seed would all have germinated properly, given time, but certainly a valid, reasonable and bona fide dispute existed as to whether or not that was the case. Hence, all of the elements of accord and satisfaction were present, and the suit was properly dismissed.

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

AFFIRMED.


text:
    HAMMOND MOTORS, INC. v. Joe GLASS.
    No. 13782.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 15, 1980.

      A. S. Easterly, Baton Rouge, for third party defendant-appellant Ford Motor Co.
    W. Hugh Sibley, Greensburg, for defendant-appellee and third party plaintiff Joe Glass.
    T. Norwood Whitley, Hammond, for plaintiff-appellee Hammond Motors, Inc.
    Before ELLIS, COLE and WATKINS, JJ.
   WATKINS, Judge.

This is an action brought by Hammond Motors, Inc., against Joe Glass for the costs and expenses of replacing the engine of a 1977 Ford F-150 pickup truck owned by Glass, and which Glass had purchased from Hammond Motors. Glass filed a reconven-tional demand against Hammond Motors and a third party demand against Ford Motor Co. seeking rescission of the sale and return of the purchase price for breach of an express and implied warranty with respect to the engine. The trial court rendered judgment in favor of Hammond Motors and against Glass in the sum of $1,469.38, with interest and 25% attorney’s fees, and in favor of Glass and against Ford for the same amount, interest at the same rate, and identical attorney’s fees. Ford Motor Co. has appealed. Glass has neither appealed nor answered the appeal, nor has Hammond Motors appealed. We affirm the judgment of the trial court.

On or about June 10, 1977, Glass bought the four-wheel drive Ford pickup truck from Hammond Motors. He used it for about three months, and then returned it to the dealer, complaining that the engine was “smoking”. About a month before the date on which Glass brought the truck back to the dealer, he had had the air cleaner element replaced. The dealer determined when the truck was brought in because the engine was “smoking” that the engine had been damaged beyond repair by dust, mud, and sand that had entered the engine, and replaced the engine. The truck had been driven only 5,063 miles at the time the truck was returned and the engine replaced. Ford refused to honor the warranty, and the dealer demanded payment from Glass for the installation of the replacement engine. Thus, the present suit arose.

It appears to be conceded by Ford that the engine was in warranty, but Ford contends that Glass breached the purchaser’s obligation by abusing or misusing the truck. Peter Held, an expert witness for Ford, testified that the outside of the engine was covered with dirt and grime, and that the engine had been damaged by dust and sand ingested into the engine as a result of failure to replace the air filter, which had been replaced only once, about a month, Glass testified, before he returned the truck to the dealer. The owner’s manual in one of several tables headed “General Warranty and Maintenance”, the table in question appearing on page 115, indicates that the carburetor air cleaner element is to be replaced every 30 months or 30,000 miles. Beside the listing are the numbers “5” and “6”. If we turn to page 117 of the owner’s manual, we see that Note 5 reads “More often if operated in severe dust conditions”. We find that Glass did not breach this requirement, as he replaced the air filter after the truck had been driven only approximately two months and certainly less than 5,000 miles, although, considering the deposit of sand, dirt and grime found on the engine, we feel the truck was driven in severe dust conditions. We cannot find, however, that failure to replace the filter before the time when it was replaced constituted a breach of the instructions somewhat unclearly set forth in the owner’s manual, but rather, we find the replacement constituted an attempt by the owner to follow the instructions.

Ford contends, however, that the replacement filter was of the wrong size, and that the improper size of the filter caused the damage to the engine. The record indicates that a filter of the wrong size was installed, as it was of the wrong diameter, and prevented a proper seal from being formed in the filter chamber. However, Ford’s expert witness, Peter Held, testified merely that the improper size of the replacement filter “could have been one factor ... ” in permitting dirt to enter the engine. We cannot say that the assertion is sufficient basis to find that the installation of the wrong filter was the precipitating factor in the ruin of the engine.

The trial court found that Glass had not violated the purchaser’s obligation under the warranty through any abuse or misuse of the truck. The truck was a 4-wheel drive truck, built for use off the highway in rugged terrain. In view of the type of use that such a vehicle is designed to perform and the evidence as a whole with respect to its use, we find no error on the part of the trial court in this regard. Canter v. Koehring Co., 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

The manufacturer and the dealer may be held in solido for return or diminution of the sale price if the manufacturer or dealer breached an express or implied warranty with regard to the sale of a motor vehicle. Savoie v. Don Siebarth Pontiac, Inc., 345 So.2d 210 (La.App.3d Cir. 1977). Although it would appear that the trial court should have held Hammond Motors liable in solido with Ford, Glass did not appeal the judgment dismissing his recon-ventional demand against Hammond Motors, and Ford, as a debtor in solido, may be held for the whole of the debt. LSA-C.C. arts. 2091, 2094.

Accordingly, the judgment of the trial court is affirmed, all costs to be borne by Ford Motor Co.

AFFIRMED.


text:
    Jerry L. FINLEY et al. v. Odom GRAVES, Sheriff of Livingston et al.
    No. 13800.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 15, 1980.
    John R. Rarick, St. Francisville, for plaintiffs-appellees.
    John Burgess, Livingston, Stephen W. Glusman and Stephan Broyles, Baton Rouge, for defendants-appellants.
    Before ELLIS, COLE and WATKINS, JJ.
   WATKINS, Judge.

This is an action brought by Jerry L. Finley, a practicing attorney, to obtain a preliminary injunction preventing a sheriff’s sale of a Lanier No Problem Word Processor Typewriter which had been seized by the Livingston Parish Sheriff’s Office under a writ of fieri facias, to obtain a mandamus ordering the sheriff to restore the possession of the typewriter to plaintiff, and to obtain damages and attorney’s fees from the sheriff, the judgment creditor, Wray Williams Display Co., and an attorney, G. Thomas Arbour, apparently counsel for the judgment creditor. The trial court granted a preliminary injunction barring the sheriff’s sale, and granted the sheriff’s exception of no cause of action with respect to damages and attorney’s fees. From that judgment, Wray Williams Display Co. and Arbour have appealed. We affirm.

Under LSA-R.S. 13:3881, the general Louisiana statute on seizure, “The tools, instruments, and books necessary to the exercise of a trade, calling, or profession by which [the debtor] earns his livelihood, in whole or in part...” are exempt from seizure. The test of whether an object qualifies as a tool of instrument of the trade or profession is whether or not the tool or instrument is necessary for the exercise of the trade or profession, that is, whether or not the debtor will be prevented from exercising his trade or profession if he is deprived of the tool or instrument. We believe the latter question turns upon the former, and that the debtor cannot be deprived of the tools or instruments if the profession or trade cannot be practiced without them without severe hardship. See Oubre v. Hinchman, 365 So.2d 17 (La.App. 4th Cir. 1978), writ refused, 365 So.2d 1375 (1978).

Certainly, a typewriter is necessary to the practice of law, as is shown by affidavits of practicing attorneys introduced by Mr. Finley, and to deny the practicing lawyer a typewriter is to subject him to severe hardship and to place him in an almost untenable position vis a vis other lawyers, his clients, and the general public. We find that a typewriter is an instrument or tool used in the practice of law, and that a typewriter as used by a lawyer clearly falls within the scope of the statute.

Appellant further contends that a word processor typewriter is quite expensive, and that law could be practiced with a less expensive typewriter. The statute in question (LSA-R.S. 13:3881) does not distinguish between expensive and inexpensive tools, instruments, or books. The question of whether or not more expensive types or models of tools or instruments should be excluded from the coverage of the statute is a question for the legislature, not for the courts, to address. The statute as now written (the provisions of which we do not wish to imply are unsound) covers all instruments, tools, and books, expensive and inexpensive, provided they are necessary for the exercise of a trade, calling, or profession by which a debtor earns his livelihood. The statute clearly applies to the facts herein presented.

Accordingly, the judgment of the trial court is affirmed, at appellant’s cost.

AFFIRMED.


author: COVINGTON, Judge.

text:
    Donald J. KRAEMER v. LOUISIANA POWER & LIGHT COMPANY.
    No. 13784.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 15, 1980.

      John L. Lanier, of Pugh, Lanier & Pugh, Thibodaux, for Donald J. Kraemer.
    Terrence O’Brien, of Monroe & Lemann, New Orleans, for Louisiana Power & Light Co.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   COVINGTON, Judge.

Defendant, Louisiana Power & Light Company, appeals from a judgment awarding plaintiff, Donald J. Kraemer, total and permanent disability workmen’s compensation benefits, penalties of 12% on past due payments and attorney’s fees. Plaintiff has answered the appeal, seeking an increase in the attorney’s fees because of the appeal.

On appeal, the defendant makes one basic contention, that the trial court erred in awarding total permanent disability as opposed to partial permanent disability.

The evidence adduced at the trial consists of the testimony of the plaintiff, his wife, his nephew and the depositions of two medical doctors. The defendant offered the testimony of an employee in its personnel department and joined in the offer of the deposition of one of the doctors, Dr. Landry. The defendant also filed medical reports from the two doctors. The trial court found that plaintiff’s disability was due to his inability to perform any work without substantial pain.

Mr. Kraemer was employed as a lineman by the defendant, and had worked for the company about 12 years at the time of his injury on July 29, 1977. He was hurt as he climbed out of a basket, on a basket truck, in the course and scope of his employment with Louisiana Power & Light Company. Following his injury, Kraemer was seen by Dr. Richard Landry, an orthopedist in Hou-ma, Louisiana, who diagnosed his condition as “a large disc rupture at L-4, 5 and a small one at L-5, S-l.” A double laminec-tomy was performed by Dr. Landry and Dr. Dexter A. Gary on August 9,1977. Kraemer was seen periodically by Dr. Landry until November 20,1978, when he was discharged with “a 10 per cent partial physical impairment to the body as a whole.” Dr. Landry testified in his deposition that between the time of the injury and the time of his discharge, Kraemer was unable to return to his job as a lineman or to do heavy manual work. Dr. Landry stated that he never advised the defendant that Kraemer was “able to return to his former vocation.” Dr. Landry’s testimony corroborated Kraemer’s complaints of pain. Kraemer underwent physical therapy for about one year and wore a back brace for about six months; yet, he continued to suffer pain. Even light household chores aggravated his condition. The testimony of the plaintiff and his wife shows that he continued to have considerable difficulty and pain with his back following his discharge by Dr. Landry. Kraemer testified that his back gets stiff and hurts when he remains in a standing or sitting position over any extended period of time. The trial judge noted that while testifying, the plaintiff was obliged to stand from time to time to relieve the discomfort and pain in his back. Kraemer also testified that riding in an automobile for a long period of time aggravated his condition. His testimony was supported by that of his nephew, Ray Kraemer, that the plaintiff was unable to do any work involving strenuous activity.

Plaintiff was also examined by Dr. Homer Kirgis, a neurosurgeon at Ochsner Clinic, in June of 1979, when he continued to suffer with his back. The pain was compatible with Dr. Kirgis’ objective findings. He indicated that Kraemer would not be able to return to work as a lineman for defendant. He further testified that the healing process in such cases depends upon the particular individual, and that if the back pain persisted, a spinal fusion may become necessary. Dr. Kirgis stated in his deposition:

“A. I would be opposed to his attempting to lift objects weighing sixty pounds, and he shouldn’t lift objects weighing fifty pounds very often, very frequently, but he should limit his lifting to objects of twenty-five to thirty pounds, and it’s important for patients of this type to avoid stooping as much as they can. If they wish to lift anything from the floor, including newspaper, they should squat to pick it up instead of stooping to pick it up.
Q. Doctor, let us assume that prior to his accident in July of 1977 that Mr. Kraemer worked as a lineman for Power & Light Company, a job which required him to climb poles, to carry heavy objects, to do generally fairly heavy manual labor. As of the date of your examination on June 25th, 19, excuse me, on June 13th, 1979 did you believe that Mr. Kraemer was in condition to engage in such an occupation at that time?
A. No, sir.
Q. Dr. Kirgis, as you indicated, Mr. Kraemer was complaining to you that if he tried to perform any light work around his home, even for a few hours, he developed a marked return of pain and disability and discomfort in his back. Were those complaints compatible with the findings which you had in your examination of him?
A. Yes, sir.
Q. Was this due to the instability which you found in his back?
A. Yes, sir.
Q. Doctor, do you believe that Mr. Kraemer at this time or at the time of your examination could have returned to any sort of gainful employment where manual labor was involved?
A. I don’t think he could have continued to work sufficiently long hours that any employer would hire him.
Q. Doctor, insofar as his problems with his back, do you classify his problems to be mainly brought about by the instability of his back?
A. Well, they were brought about by the ruptured discs. But the problem as of time of my examination was instability or weakness of his spine. The muscles are not weak, but the spine is weak. The back is structurally weak.
Q. Is this the reason why you recommend to him that he wear back support when doing such things as taking long automobile ride or trying to do any manual activity?
A. Yes, sir. You see the man will improve if scar tissue builds up around these injured discs to strengthen that part of the spine, and this will progress to an effective level if he doesn’t put undue stress in his back periodically and disrupt the process. The process can be protected by his avoiding stooping, wearing the back support, and so forth.
Q. Doctor, how long generally does it take for this to occur?
A. It varies in every individual. He’s forty-two years of age. This would progress moderately fast, but it varies in every case, and this can be determined only by periodic examination.
Q. Can you give us perhaps a general range when you would normally expect such a healing process to be accomplished?
A. Well, if Mr. Kraemer doesn’t repeatedly aggravate the symptoms by attempting to do too much work too soon, I would be hopeful that he would be able to perform some kind of light work in approximately a year from the time of my examination.
Q. In other words, Doctor, you believe that it would be at least a year before he could do any kind of light work even without running the risk of further difficulties with his back?
A. Judging from the history that I obtained I think so.
Q. Now, when you talk about perhaps in a year he might be able to return to some type of light work, what do we mean by light work. Now what would you allow him to do?
A. I would be in agreement with his obtaining a position on a security force if he were not expected to perform too much, too many activities requiring a great deal of physical exertion.
Q. In other words, you would suggest that perhaps he could work as some sort of security officer?
A. Yes.
Q. Do you think he’ll ever be able to return to any sort of job involving manual labor?
A. I think he might be able to perform light manual labor, but he should not attempt to return to work that would be classified as heavy manual labor.
Q. Doctor, the disability which you found in Mr. Kraemer on the date of your examination, do you attribute it to the disc injury which he sustained in July of 1977 and the resulting instability following the surgical removal of these ruptured discs?
A. If the history was accurate, I would do so.
Q. And you consider him as being unable to return to his former occupation as of the date of your examination?
A. Yes, sir.”

Considering the foregoing evidence, the trial court concluded that under the facts and circumstances of the instant case, the plaintiff could only return to work in substantial pain; consequently, he was totally and permanently disabled within the meaning of the workmen’s compensation law, as amended by the 1975 Act.

As a matter of law, an injured employee who is able to work, but only in substantial pain, is totally and permanently disabled and entitled to the benefits conferred by LSA-R.S. 23:1221(2); Whitaker v. Church’s Fried Chicken, Inc., 387 So.2d 1093 (La.1980, No. 65401). However, the determination of the degree of pain is a factual determination; the conclusion reached depends to a great extent on an evaluation of the plaintiff’s credibility, because in the final analysis the plaintiff is the only one capable of describing his pain. See Wilson v. Ebasco Services, Inc., 386 So.2d 371 (La.App. 4 Cir. 1980); Holmes v. Morville Plantation, Inc., 314 So.2d 752 (La. App. 4 Cir. 1975).

Thus, the essential question in cases of this nature is whether the injured employee’s pain is substantial enough to be considered disabling.

In Racial v. Highlands Insurance Company, 355 So.2d 1355 (La.App. 3 Cir. •1978), writ denied, 358 So.2d 645 (La.1978), the Court construed LSA-R.S. 23:1221, as amended by Act 583 of 1975, to mean that an injured employee is considered totally and permanently disabled “if he is unable to pursue any gainful employment without experiencing substantial pain.” We agree with this construction of the amended statute.

In Simmons v. State, Department of Transportation and Development, 368 So.2d 770 (La.App. 2 Cir. 1979), the plaintiff sustained a protruded disc while pushing a cart loaded with samples of concrete. Two orthopedic surgeons testified that the plaintiff was capable of doing light work which did not require heavy lifting, pushing or bending, but that prolonged sitting or standing would cause substantial pain. The plaintiff testified that he suffered substantial back and leg pain when sitting or standing for long periods of time. His wife corroborated his testimony, explaining that he would have substantial back pain even upon doing light household chores. The Simmons Court held that an injured employee who endured substantial pain when engaged in any gainful employment was totally and permanently disabled just as though he was incapable of performing any work at all. The Court pointed out that the reason for this conclusion is that an employee is not required to work in substantial pain and he is not to be penalized when he does so work or tries to work. This jurisprudential rule was not changed by the 1975 Amendment to the Louisiana Workmen’s Compensation Act. See Phillips v. Dresser Engineering Co., 351 So.2d 304 (La. App. 3 Cir. 1977), writ denied 353 So.2d 1048 (La.1978).

In the instant case the trial judge had no difficulty in concluding that the plaintiff’s pain was substantial. The plaintiff testified to the severity of his pain; his testimony was corroborated by that of his wife and his nephew; and the orthopedist and the neurosurgeon testified that the pain which the plaintiff described was consistent with their medical findings. As indicated above, whether the pain is “substantial enough” is a question of fact to be determined by the trier of fact. Such determination of fact will not be disturbed on appeal when there is evidence before the trier of fact which upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for such findings, unless such findings are clearly wrong. Crump v. Hartford Accident and Indemnity Company, 367 So.2d 300 (La.1979).

After our careful consideration of the evidence, we do not find manifest error on the part of the trial court in determining that the plaintiff was totally and permanently disabled. The evidence that Kraemer was in substantial pain when he performed any strenuous activity greatly preponderates. A finding of “substantial pain” requires a holding that the plaintiff is disabled from work. See Whitaker v. Church’s Fried Chicken, Inc., supra.

Regarding the claim for penalties and attorney’s fees, the trial court found that the Company had been arbitrary and without probable cause in terminating Kraemer’s workmen’s compensation benefits, thus entitling him to penalties and attorney’s fees. The basis for the lower court’s decision on this question is stated as follows in the trial judge’s written reasons for judgment:

“Louisiana Power & Light Company terminated Mr. Kraemer’s benefits on or about November 30, 1978 following Dr. Landry’s report of November 20, 1978. “Dr. Landry deposed that:
“(1) That as of November 20, 1978 Mr. Kraemer was 10% partially physically disabled;
“(2) That the letter of his findings to L.P. & L. never indicated that Mr. Kraemer was capable of returning to his former occupation;
“(3) That he never at any time indicated to L.P. & L. that Mr. Kraemer could return to his former occupation.
“L.P. & L. had no definite expression from Dr. Landry or any other doctor that Mr. Kraemer’s disability had ended. Further, L.P. & L. did not inquire into the condition or progress of Mr. Kraemer before arbitrarily terminating his compensation payments. Under the facts of this case claimant is entitled to statutory penalties and reasonable attorney fees.
“The Court finds that attorney fees of $2,500.00 would be appropriate in this case considering the degree of skill exhibited and the volume of work performed in prosecution and collection of this claim. The evidence reflects that Mr. Kraemer did not receive workmen’s compensation for approximately thirty-eight weeks, a total of $3,610.00 in weekly benefits. At the statutory rate of 12%, this amounts to a penalty of $433.20.”

LSA-R.S. 23:1201.2 provides that any employer who discontinues payment of workmen’s compensation benefits shall be liable for penalties and attorney’s fees “when such discontinuance is found to be arbitrary, capricious or without probable cause.”

The record reflects no evidence which justified the employer in discontinuing payments to the injured employee herein. Clearly, the employer was arbitrary, capricious and without probable cause in terminating the benefits. Accordingly, we affirm the award of penalties to the plaintiff. See Lachney v. Cabot Corporation, 368 So.2d 500 (La.App. 3 Cir. 1979), writ denied 371 So.2d 834 (La.1979).

Plaintiff has answered the appeal, seeking additional attorney’s fees for the appeal. His request is granted. The appeal has necessitated additional work on the part of his counsel. Under the circumstances, we have concluded that an additional award in the amount of $1,000.00 should be made for attorney’s fees. See Horn v. Vancouver Plywood Company, 322 So.2d 816 (La.App. 3 Cir. 1975).

It is therefore ordered, adjudged and decreed that the judgment of the trial court is amended to increase the award for attorney’s fees to the sum of $3,500.00 and, as amended, the judgment is affirmed. Costs of the appeal are taxed against the appellant, Louisiana Power & Light Company.

AMENDED AND AFFIRMED.


text:
    Darlene P. SMART v. L.S.U. MEDICAL CENTER, Shreveport, La.
    No. 13919.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 15, 1980.

      Darlene P. Smart, in pro. per.
    William A. Norfolk, Louisiana National Bank Building, Baton Rouge, for L.S.U. Medical Center, appellee.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   COVINGTON, Judge.

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

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

APPEAL DISMISSED.


author: CHIASSON, Judge.

text:
    BARBER BROTHERS CONTRACTING COMPANY, INC. v. CHET HOMES, INC., and Chester C. Rushing.
    No. 13727.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 15, 1980.
    Writ Refused Feb. 6, 1981.

      Lawrence A. Durant, Baton Rouge, counsel for plaintiff-appellee, Barber Brothers Contracting Company, Inc.
    Guy A. Módica, Baton Rouge, counsel for defendant-appellant, Chet Homes, Inc.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   CHIASSON, Judge.

Chet Homes, Inc., defendant-appellant, appeals the decision of the trial court awarding Barber Brothers Contracting Company, Inc., plaintiff-appellee, the sum of $33,888.06, being the balance due on a contract existing between the parties. Appellant also appeals from the dismissal of its reconventional demand.

The following facts were stipulated to by the parties, to wit:

1) Chet Homes, Inc., as owner, entered into a contract with Barber Brothers Contracting Company, Inc. on July 3, 1973, for the construction of the streets, sidewalks, drainage and sanitary sewer facility in North Sherwood Estates Subdivision, East Baton Rouge Parish, Louisiana.
2) Plans and specifications were prepared by Billie F. Spell, Consulting Engineer.
3) The total amount of the contract, when signed on July 3, 1973, was for $244,736.40. The contract was based on unit prices and the final contract price totaled $247,331.30.
4) The subdivision was accepted by the City-Parish on October 23, 1974.
5) Letter dated July 9, 1973, was sent by owner to contractor for contractor to commence work as per the contract.
6) Work was started by contractor on July 16,1973, and, as per the contract, was to be completed within 150 calendar days. (December 13, 1973).
7) No extension of time was granted nor requested by either party whatsoever, either oral or written.
8) Owner nor contractor never suspended or terminated the contract in writing or (orally) as per paragraphs 43 and 44 of the “General Conditions of the Contract.”
9) Advances for the payment of the partial estimates were made to Chet Homes, Inc. by Cameron-Brown Company, which was financing the project on an interim basis.
10) Total payments made by owner to contractor amounted to $214,193.30.
11) Chet Homes refused to pay Barber Brothers the retainage ($33,888.06) after the expiration of the lien period.

The stipulated facts reveal that Barber Brothers completed the project 314 days after the completion time expressed in the contract. Barber Brothers finished the project, though it did not receive some payments until well over a year after completion. Because Chet Homes had not met the stage payments timely, Barber Brothers had an option under the contract to either suspend work or complete the project. It chose the latter and is now demanding full payment of the contract price.

Chet Homes objects contending that Barber Brothers breached the contract by not having the project completed on December 13, 1973, the 150th day of the contract. Chet Homes argues that time was of the essence as specifically provided in the contract and the failure of the plaintiff to finish the work within the 150 days allotted constitutes a breach of the contract. Because of the breach, defendant contends plaintiff is liable for damages as stated in the contract in the amount of $100.00 a day. Defendant wants to offset this liquidated damage to the retainage it has kept from plaintiff.

In the alternative, defendant urges that there was actual damages in the amount of $117,853.90 and plaintiff is liable for that amount.

The trial court found that the defendant, by not making its stage payments timely, was in default and “that one who is in default cannot seek specific performance or put the other party in default.” It concluded that Chet Homes needed to be in strict compliance with its obligation before it could seek damages.

The contract that was entered into by the parties is the law as between them. La. C.C. art. 1901. The contract in this instance provided for many of the situations that arose in this case. Pertinent provisions of the contract are as follows:

“TIME LIMIT: The Contractor shall commence work under this contract within ten (10) days of the date of this Contract, and upon written notice to proceed. Time is of the essence of the Contract and the work order shall be issued promptly.
“The work under this Contract shall commence on or before the 7th day following the date of mailing by regular mail of the notice to proceed, and shall be finished in One Hundred and Fifty (150) calendar days from said date.
“The Contract shall include all work to be performed under this Contract.
“A request by the Contractor for an extension of the contract time will be considered only if, in support of the request, the Contractor shall allege delay in the performance of the work by either or both the following causes:
(a) An act of the Owner
(b) ‘Fortuitous events’ or ‘events beyond the control’ as defined in Louisiana jurisprudence.
“FAILURE TO COMPLETE WORK ON TIME: Should the Contractor fail to complete the work within the time limit above specified, then in such event, and for each calendar day of such delay, the Contractor agrees to pay the Owner the sum of One Hundred and No/100 ($100.00) Dollars per day, which amount will be considered as liquidated damages due the Owner by reason of the Contractor’s failure to complete the Contract within the specified time limit. The Contractor further agrees that the Owner may deduct such liquidated damages, computed at the rate of One Hundred and No/100 ($100.00) Dollars per day, from monies due or coming due to the Contractor under this Contract.
“PARTIAL PAYMENTS: The Owner will pay monthly estimates, on or about the tenth day of the month, if the amount due on the entire Contract amounts to Five Hundred and No/100 ($500.00) Dollars or more. Partial payments will not be made for a smaller amount.
“FINAL PAYMENT: Upon satisfactory completion of the work, the Owner will issue a written acceptance of the work to the Contractor who will immediately thereafter file same with the Recorder of Mortgages for the Parish of East Baton Rouge.
“Not less than thirty (30) days after filing the formal acceptance of the work with the Recorder of Mortgages, provided that all work done under this Contract is at that time found to be in good condition insofar as the Contractor is responsible for it, the Owner will pay the Contractor the retained portion of the Contract price, after deducting therefrom such sums as may be lawfully withheld under any of the provisions of this Contract, ...”

Pertinent provisions of the General Conditions of the Contract are as follows:

“44. Contractor’s Bight to Suspend Work or Terminate Contract:
“The Contractor may suspend work or terminate Contract upon ten (10) days’ written notice to the Owner and the Engineer, for any of the following reasons:
sfc * * * * *
(b) If the Engineer should fail to act upon any Request for Payment within ten (10) days after it is presented in accordance with the General Conditions of the Contract.
(c) If the Owner should fail to act upon any Request for Payment within thirty (30) days after its approval by the Engineer.
******
“76. Extension of Contract Time:
“A delay beyond the Contractor’s control occasioned by an Act of God, or act or omission on the part of the Owner or by strikes, lockouts, fire, etc., may entitle the Contractor to an extension of time in which to complete the work as determined by the Engineer, provided, however, that the Contractor shall immediately give written notice to the Engineer of the cause of such delay.
“80. Engineer’s Action on Request for Payment:
“Within ten (10) days of submission of any Request for Payment by the Contractor, the Engineer shall:
(a) Approve the Request for Payment as submitted.
(b) Approve such other amount as he shall decide is due the Contractor, informing the Contractor in writing of his reasons for approving the amended amount.
(c)Withhold the Request for Payment informing the Contractor in writing of his reasons for withholding it.
“81. Owner’s Action on an Approved Request for Payment:
“Within thirty (30) days from the date of approval of a Request for payment by the Engineer, the Owner shall:
(a) Pay the Request for Payment as approved:
(b) Pay such other amount in accordance with Paragraph 82 as he shall decide is due the Contractor, informing the Contractor and the Engineer in writing of his reasons for paying the amended amount.
(c) Withhold payment in accordance with Paragraph 82 informing the Contractor and the Engineer of his reasons for withholding payment.
“82. Owner’s Right to Withhold Payment of an Approved Request for Payment:
“The Owner may withhold Payment in whole or in part on an approved Request for Payment to the extent necessary to protect himself from loss on account of any of the following clauses discovered subsequent to approval of a Request for Payment by the Engineer:
(a) Defective Work.
(b) Evidence indicating the probable filing of claims by other parties against the Contractor.
(c) Failure of the Contractor to make payments to subcontractors, material suppliers or labor.
(d) Damage to another Contractor.
“83. Interest on Unpaid Requests for Payment:
“Should the Owner fail to pay an approved Request for Payment within thirty (30 days from the date of approval by the Engineer, and should he fail to inform the Engineer and the Contractor in writing of his reasons for withholding payment, the Owner shall pay the Contractor interest on the amount of the Request for Payment at the rate of six per cent (6%) per annum until payment is made.”

If parties contract with one another they must live up to their agreements or suffer the consequences that are provided for therein. In this case, Chet Homes made its first two payments untimely without any written reason being given to the contractor or engineer. Barber Brothers could have either suspended work or terminated the contract. (Condition 44). In addition, they could have sought interest on the amount not paid at the rate of six percent (6%) per annum. (Condition 83). In good faith it proceeded with the contract and waived the rights it had contracted for.

On December 13, 1973, Chet Homes again failed to make a timely payment on an estimate submitted on November 3, 1973, by Barber Brothers. Barber Brothers did not seek either of the two remedies provided for in the contract. This course of action, untimely stage payments, continued. Eventually on February 24, 1975, all back payments were made by Chet Homes to Barber Brothers except a balance of $33,-888.06, which is the subject of this suit.

On the other hand, Barber Brothers failed to perform timely the work it had undertaken under the contract. They had not performed the work within the 150 days allotted. (Special Conditions — Time Limit). Chet Homes then had the option to either cancel the contract (Condition 43) or withhold $100.00 a day as liquidated damages. (Special Condition — Failure to Complete Work on Time). As it turns out, Barber Brothers took an additional 314 days to complete the job and Chet Homes has withheld the liquidated damages from the final contract price.

A classification of this contract will enable us to determine the applicable provisions of the Civil Code. We deem this contract to be a building contract under Chapter 3 of Title IX of Book III of the Civil Code. La.C.C. arts. 2745 and 2756.

“Art. 2745. Labor may be let out in three ways:
1. Laborers may hire their services to another person.
2. Carriers and watermen hire out their services for the conveyance either of persons or of goods and merchandise.
3.Workmen hire out their labor or industry to make buildings or other works.”
“Art. 2756. To build by a plot, or to work by the job, is to undertake a building or a work for a certain stipulated price.”

See also Town of Winnsboro v. Barnard & Burk, Inc., 294 So.2d 867 (La.App. 2nd Cir. 1974) writ denied 295 So.2d 445 (La.1974). Murphy Corporation v. Petrochem Maintenance, Inc., 180 So.2d 716 (La.App. 1st Cir.1965).

Under this classification, we look to the provisions of Section 3, Chapter 3 of Title IX. Pertinent to our case are the following articles:

“Art. 2765. The proprietor has a right to cancel at pleasure the bargain he has made, even in case the work has already been commenced, by paying the undertaker for the expense and labor already incurred, and such damages as the nature of the case may require.”
“Art. 2769. If an undertaker fails to do the work he has contracted to do, or if he does not execute it in the manner and at the time he has agreed to do it, he shall be liable in damages for the losses that may ensue from his non-compliance with his contract.”

From a reading of these articles, we find that either party may relieve himself of the contract before it is completed subject only to damages and losses incurred by the other party. The owner may relieve himself at his pleasure while the contractor is required by the jurisprudence to substantially perform his contract before he can sue for the contract price. Aireo Refrigeration Service, Inc. v. Fink, 242 La. 73, 134 So.2d 880 (1961); Merrydale Glass Works, Inc. v. Merriam, 349 So.2d 1315 (La.App. 1st Cir. 1977) writ denied 350 So.2d 1211 (La. 1977); Henson v. Gonzalez, 326 So.2d 396 (La.App. 1st Cir. 1976).

In the case at hand, we not only had substantial performance on the part of the contractor, we had actual completion as of October 23, 1974. Thus the contractor has the right to sue for the contract price. Merrydale, supra and Henson, supra. Barber Brothers is entitled to the remainder of the contract price, which has been stated to be $33,888.06.

Even though Barber Brothers is entitled to sue for the remainder of the contract price, they are “liable in damages for the losses . .. from his non-compliance with his contract.” La.C.C. art. 2769. The noncompliance of this contract is the failure of Barber Brothers to execute the contract at the time he has agreed to do it. Barber Brothers had agreed to execute the contract within 150 days or before December 13, 1973. As stated earlier, it was not completed until October 23, 1974 or 314 days later. Thus Barber Brothers is liable for the damages stipulated in the contract.

It has been argued that Chet Homes is not entitled to damages since damages could only be awarded from the putting in default of a breaching party. La.C.C. art. 1912. Barber Brothers argues that since Chet Homes breached the contract by making untimely payments, it was in default and could not put Barber Brothers in default. La.C.C. art. 1913. The trial court was of a similar thought when it said Chet Homes needed to be in strict compliance with its obligations before it could recover damages. We find these statements to be inapplicable in building contract cases, since the controlling code article does not require a putting in default.

As was stated in the Merrydale case, supra:

“Article 2769 is an exception to the general rule applicable to commutative contracts that no payment is due under a contract in the absence of total performance. Lambert v. Jones-McCloskey Construction, Inc., 311 So.2d 488 (La.App. 4th Cir. 1975); G. Salvaggio & Co., Inc. v. Delta Heights, Inc., 277 So.2d 754 (La. App. 4th Cir. 1973).”

Since the code provides that Barber Brothers can sue for recovery of the remainder of the contract price, it is entitled to that amount from Chet Homes. Additionally, Barber Brothers under the code is likewise liable for damages in not performing its obligations timely.

It has been stipulated that the retainage kept by Chet Homes is in the amount of $33,888.06 which represents the balance due under the contract. We now hold that Chet Homes is indebted to the plaintiff in the amount of $33,888.06 subject to a deduction of $31,400.00 which represents the liquidated damages as stipulated in the contract. ($100.00 a day for 314 days).

For these reasons, the judgment of the trial court is amended to the sum of $2,488.06, and as thus amended, is affirmed. Costs of this appeal are taxed against plaintiff-appellee.

AMENDED AND AFFIRMED.


text:
    Lynn J. VICE v. DEPARTMENT OF PUBLIC SAFETY, State of Louisiana.
    No. 13783.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 15, 1980.

      Karl E. Lewis, Jr., Houma, for plaintiff and appellee.
    Robert L. Roshto, Asst. Gen. Counsel, Baton Rouge, for defendant and appellant.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   CHIASSON, Judge.

The Department of Public Safety, State of Louisiana (Department), appeals the judgment of the district court granting Lynn J. Vice, plaintiff-appellee, a restricted driver’s license.

Lynn J. Vice has three times pleaded guilty to driving while intoxicated and has been sentenced on each occasion. His first conviction was on October 18, 1973, in the Second Parish Court, Parish of Jefferson. The second conviction occurred in City Court for the City of Lake Charles on January 12, 1976. The last conviction occurred on March 9, 1978, in the City of Morgan City.

After the second conviction, the Department suspended Vice’s drivers license for a period of one year. Upon receiving verification of Vice’s latest conviction for driving while intoxicated, the Department sent him a notice on April 5, 1979, informing him of the second suspension of his driving privileges.

Vice applied to the district court for a restricted license to enable him to continue to earn his livelihood. The trial court granted the restricted license. We reverse.

The Department suspended the appellee’s drivers license under the authority of La. R.S. 32:414 B.(2) which, in part provides:

“B. The department shall forthwith revoke the license of any person, for a period of twelve months, upon receiving satisfactory evidence of the conviction or of the entry of a plea of guilty and sentence thereupon or of the forfeiture of bail of any such person charged with any of the following crimes:
(2) Conviction or the entry of a plea of guilty and sentence thereupon, or of the forfeiture of bail of any such person on the second or subsequent offense for operating or being in actual physical control of a motor vehicle while under the influence of intoxicating beverages, ...”

Louisiana Revised Statute 32:415.1 A.(l) provides, in part:

“A.(l) Upon suspension, revocation, or cancellation of a person’s drivers license for the first time only as provided for under R.S. 32:414(B), (C), (D), (E), and R.S. 32:415 said person after initial notice from the department shall have the right to file a petition in the district court of the parish in which the applicant is domiciled alleging that revocation of his driving privileges will deprive him or his family of the necessities of life or will prevent him from earning a livelihood.. .. ” (Emphasis added).

The district court is granted authority to issue a restricted license only after the first suspension of a driver’s license. Sibley v. Louisiana Dept. of Public Safety, 385 So.2d 505 (La.App. 1st Cir. 1980), Perry v. State, Dept. of Pub. Saf., Driver’s L. Div., 353 So.2d 318 (La.App. 1st Cir. 1977).

Appellee admits that his driver’s license has been previously suspended. Since this is the second time Mr. Vice’s license is suspended, the trial court was without authority to grant him a restricted driver’s license.

For these reasons the judgment of the trial court is reversed and plaintiff-appel-lee’s petition for a restricted driver’s license is dismissed at his costs.

REVERSED AND RENDERED.


author: PONDER, Judge. LOTTINGER, Judge,

text:
    FIRST NATIONAL BANK OF DENHAM SPRINGS v. SOUTH CAROLINA INSURANCE COMPANY.
    No. 13612.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 15, 1980.
    Robert H. Morrison, III, Denham Springs, for plaintiff-appellee First National Bank of Denham Springs.
    Tom H. Matheny, and Charles G. Walker, Hammond, for defendant-appellant South Carolina Insurance Co.
    Before ELLIS, LOTTINGER, CHIAS-SON, EDWARDS and PONDER, JJ.
   PONDER, Judge.

Defendant appealed from a summary judgment granted to plaintiff on an insurance draft.

The issue is the propriety of summary judgment.

We reverse.

An adjuster issued a draft to Kevlin Owens in payment of an insurance loss insured by the defendant. It was drawn upon Sei-bels-Bruce Group through The South Carolina National Bank, and provided that “upon acceptance pay to the order of . . . Owens.” Plaintiff paid the proceeds of the draft to Owens. When the draft was presented to the South Carolina National Bank, defendant had stopped payment, after concluding the insurance claim was improper.

Plaintiff, alleging that the draft is a negotiable instrument and that it was a holder in due course, sued for recovery. Appellant defended on the basis that the words “upon acceptance” made the draft a conditional promise to pay, thus preventing it from being a negotiable instrument.

There is some jurisprudence, not yet adopted in Louisiana, that when the drawer and the drawee are the same the act of drawing is also one of accepting and the draft is negotiable. See Wachovia Bank & Trust Co. v. American Bankers Insurance Co. of Florida, 146 S.E.2d 79 (N.C.1966) and First National Bank of Huttig v. Rhode Island Ins. Co., 43 S.W.2d 535 (Ark.1931).

The motion for summary judgment refers to an attached affidavit. The trial court refers to stipulation of counsel. Both judgments, one signed on January 11 and the other on January 25,1980, refer to evidence adduced at the hearing, to documents, affidavits, testimony and other evidence. The record contains no stipulation, no affidavits, no transcript of testimony and no other evidence except the draft sued on.

Counsel has furnished a copy of affidavit in support of motion for summary judgment. Even if we can consider it, it does riot show the relationship among the signer of the draft, the Seibels-Bruce Group, South Carolina Insurance Co. and The South Carolina National Bank. We therefore have no proof that the drawer and drawee is the same.

Without going into the merits of the case, we find that plaintiff has not borne its burden in securing a summary judgment.

The judgment is therefore reversed and the case is remanded for further proceedings not inconsistent with these reasons. The cost of this appeal is cast against the appellee. All other costs are deferred pending the outcome.

REVERSED AND REMANDED.

LOTTINGER, J., dissents and assigns written reasons.

LOTTINGER, Judge,

dissenting.

I find only issues of law to be present and thus conclude this matter ripe for summary judgment. Therefore, I respectfully dissent.


text:
    Wanzie PENNINGTON v. CHURCH’S FRIED CHICKEN, INC. et al.
    No. 13823.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 15, 1980.

      Dorsey C. Martin, III, and Roy A. Mau-ghan, Baton Rouge, counsel for plaintiff-appellant, Wanzie Pennington.
    Benjamin L. Guelfo, Baton Rouge, counsel for defendant-appellee, Church’s Fried Chicken, Inc.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   CHIASSON, Judge.

The trial court denied the claim of plaintiff-appellant, Wanzie Pennington, for personal injuries sustained by her when she was robbed of her purse on the premises of the defendant-appellee, Church’s Fried Chicken, Inc. Appellant was awarded $115.00 for property damages. Appellant appeals the denial of her claim for personal injuries and appellee filed an answer to the appeal challenging the award of property damages to the appellant.

On August 29, 1978, at approximately 4:50 P.M., appellant entered the premises of Church’s Fried Chicken by driving her vehicle from Adams Street into the parking lot which is located at the intersection of Adams and North Acadian Thruway West, in the city of Baton Rouge.

Church’s Fried Chicken is a fast food host whereby people stand in line on the outside of the building to order and purchase takeout fried chicken.

After Mrs. Pennington had parked her vehicle in the parking lot, she entered the line at the fast food window to order fried chicken. There were two ladies in front of her at this time and she was advised that the chicken would not be ready for about ten minutes. She returned to her automobile and then returned in the line behind the two ladies. Several male persons entered in the line behind her. While the first lady at the window was being served, Mrs. Pennington’s purse was snatched off of her shoulder by a young male person, fifteen to seventeen years of age. During the purse snatching, Mrs. Pennington was spun around causing her to fall to the ground. As a result of this fall, Mrs. Pennington sustained injuries to her knee and to her ribs.

In her purse at the time was a wallet containing $90.00 in cash. The purse was valued at $20.00 and the wallet was valued at $5.00. The total of these items amounts to the $115.00 awarded to appellant by the trial court for property damages.

Appellant contends the trial court erred as follows:

1. In not finding that appellee had a duty to protect appellant from assault in light of appellee’s knowledge of previous criminal activities in the area; and
2. In not finding that appellee had a duty to warn appellant concerning the possibility of danger from assault because of its knowledge of criminal activities in the area.

Pursuant to the duty-risk approach, the trial judge held that appellee did not have a duty to hire security officers to be on the premises at 4:50 in the afternoon on a bright, sunshiny day to stop purse snatching. Further, appellee did not have a duty “to post signs on its premises that might read you enter the premises at your own risk; you might be mugged; your purse might be snatched; items might be stolen from your vehicle; you might be raped, or any other of the crimes against persons or crimes against properties.” Under the facts of this case, we agree.

A police computer printout of the crimes committed in this area was introduced in the record. This computer printout reveals that most of these crimes occurred at another business location in the same area. The computer printout lists only two instances of purse snatching at appellee’s place of business, one in April of 1976 and one in April of 1975. In addition, the printout shows that there were seven other theft charges originating on appel-lee’s premises in a three year period prior to the occurrence. We are unable to ascertain from these facts alone that the criminal activities in this area were sufficient to require the posting of warning signs or the hiring of security guards. Guidry v. Toups, 351 So.2d 1280 (La.App. 1st Cir. 1977) writ refused.

Appellee’s duty is limited to the exercise of reasonable care. As was stated in the Roberts v. Tiny Tim Thrifty Check, 367 So.2d 64 (La.App. 4th Cir. 1979) case:

“A store owner is under a duty to take reasonable care for the safety of his patrons, but he is not the insurer of their safety. Anderson v. Clements, 284 So.2d 341 (La.App. 4th Cir. 1973); DeHart v. Travelers Ins. Co., 10 So.2d 597 (La.App. Orl.1942); Matranga v. Travelers Insurance Co., 55 So.2d 633 (La.App.Orl.1952). It has also been stated that a proprietor of a public place has a duty to protect his patrons from injuries at the hands of third parties when it is within his power to do so. Cooper v. Ruffino, 172 So.2d 717 (La.App. 4th Cir. 1965) (emphasis added).”

Appellee herein had no opportunity to prevent the act against its patron, so it did not breach any duty. Roberts, supra.

The duty to protect business patrons does not extend to the unforeseeable or unanticipated criminal acts of an independent third person. The owner or management does have a duty to protect patrons when it has knowledge, or can be imputed with knowledge, of the third person’s intended conduct. See Anderson v. Clements, 284 So.2d 341 (La.App. 4th Cir. 1973). In this case, appellee did not have, nor can it be imputed with, knowledge that a criminal act was about to occur.

As found by the trial court the purse snatching incident occurred “real fast.” This was substantiated by the appellant’s testimony and by the testimony of the police officer who investigated the crime. Under these circumstances, the trial court erred in holding that the employees of ap-pellee could have prevented the purse from being stolen. Since appellee’s duty to plaintiff for property damages is the same as its duty for personal injuries, and having found no breach of said duty, plaintiff’s claim for property damages is denied.

For these reasons, the judgment of the trial court is affirmed insofar as it denied recovery to appellant for personal injuries and is reversed insofar as it allowed property damages to appellant. Judgment is rendered dismissing appellant’s suit at her cost.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.


author: LEAR, Judge.

text:
    Ray H. LEWIS v. TOLEDO NATIONAL INSURANCE COMPANY et al.
    No. 13509.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 15, 1980.
    Writ Refused Feb. 13, 1981.

      Johnnie A. Jones, Baton Rouge, for plaintiff.
    Robert E. Palmer, Ponchatoula, for Elias Sandel, Jr., and Troy E. Sandel, defendants.
    Charles A. O’Brien, III, John E. Castle, Baton Rouge, for Credit General Ins. Co.
    Jimmy Hammer, in pro. per.
    Before EDWARDS, LEAR and WATKINS, JJ.
   LEAR, Judge.

This matter is before us on remand from the Supreme Court to articulate the factual conclusions and evidentiary basis for our prior decision affirming the judgment of the trial court.

This cause arose out of a two car collision on Highway 51 in the Parish of Tangipahoa. Appellant, Ray H. Lewis, filed suit in tort against defendants, Elias Sandel, Jimmy Hammer and Troy E. Sandel and his uninsured motorist carrier, Toledo National Insurance Company. In his suit, he alleged that these defendants were liable in solido to redress plaintiff’s damages.

Plaintiff alleged that defendants Troy Sandel and Jimmy Hammer had created a dangerous situation on the roadway when, after their cars collided and obstructed passage by other cars upon the highway, they failed to give warning to other motorists of the danger created thereby. Defendant Elias Sandel was sued as owner of the vehicle.

At the trial of the case, Toledo National Insurance Company (whose name was later changed to Credit General Insurance Company) filed an answer and third party demand, naming Hammer and the Sandels as defendants.

The only testimony offered by plaintiff on the issue of liability was his own. He testified in substance that he was proceeding north on Highway 51 between 11:00 and 11:30 p. m. when he encountered an oncoming vehicle whose driver asked “. . . for his light .. . . ” By his testimony, Lewis interpreted the blinking lights on the other vehicle as a request that he dim his own, with which he complied. He also stated that he slowed his vehicle:

“Q. You dimmed your lights?
A. I dimmed my lights. I was creeping along there, so I got right up on this other car cross ways the road on me, and so when I put on my brakes I pulled my brakes and my car kind of slid . . . and so when I did there when my car hit the other car and my chest hit against the steering wheel . . . and my head went through the steering wheel. It knocked me out. I stayed in the car a little while, then I got out and staggered to the other car and I looked. I didn’t see nobody, and wasn’t no lights on.
Q. Did anybody say anything to you?
A. Nobody said nothing to me.
Q. What did you do?
A. I staggered back to the car and I looked, and I went back to the car and stood up on side of the car shaking my head, and I got back

Defendants’ version of the incident was materially different. Troy Sandel testified, and his testimony was corroborated by that of his sister, Cynthia Sandel, who was a passenger in his car.

In substance, their testimony was to the effect that they too were proceeding north when they were confronted by a sudden emergency. A southbound vehicle being driven by Jimmy Hammer was forced into their lane while attempting to avoid hitting a vehicle in front of them. When this happened, the southbound vehicle ended up in defendants’ lane of travel, causing a collision involving defendants’ car and that of Jimmy Hammer. Shortly after this collision, plaintiff proceeded northbound until he was confronted by this situation on the roadway. Troy Sandel testified as follows:

“[BY MR. PALMER:]
Q. You have heard the testimony of Mr. Ray Lewis as to what he saw and did on the night of the accident, could you state in your own words what happened that night?
[TROY SANDEL:]
A. What happened is I was . . me and my sister . . were coming from Hammond, and we had passed through Independence. This was South of Amite .. Iam not sure exactly how far South. There was a light rain. I was driving about 48 miles per hour, and a car changed lanes ahead of me .. it had been going South .. a car in front of him slowed down, he put on his brakes real quick, and spun around and landed in my lane, so that’s how the original collision happened. We were there in that position, with the two cars more or less joined together, blocking the northbound lane. The southbound lane was open, and...
BY MR. PALMER:
Q. At this point I would like to interject one question. There has been testimony by Mr. Lewis that a car came by and asked him to dim his lights . . in other words blinked . . right before the collision. Do you have any recollection of a car coming and blinking?
BY THE COURT: Strike the editorialization of the question when another car coming asked the other vehicle to blink his lights.
BY MR. PALMER: Your Honor I was quoting from him. He said he asked me ..
BY THE COURT: Proceed.
WITNESS:
A. I don’t remember seeing any other car. What we did at the time his car came, both cars had their blinkers on ... we had put our safety blinkers on . . my sister was sitting in my car, which was actually owned by my brother .. was sitting in my car holding the flasher on, so the flashers were on, and in addition we had a door open ... I don’t remember which one, but the lights were on inside the car, and it was a white car . . and then as the car got closer I stood in front and waved ....
BY MR. O’BRIEN: Excuse me. What car sir?
A. Mr. Lewis’ car . . . got closer to the scene where the original collision had taken place, I stood in front of the car and waved until I realized that I was going to die if I didn’t move, so I moved out of the way and I saw inside our care (sic) . . which was lit up .. I saw the ear at the time it was hit, and it was still lit up inside then.
BY MR. PALMER:
Q. Were the doors open on your car . . . I didn’t catch that?
A. At least one was, because the inside of our car was lit. I could see clearly inside.
Q. What color was your car?
A. White.
Q. How much time had elapsed, had anyone else taken notice of this accident before Mr. Lewis came on the scene?
A. At least I think ... I don’t remember too well, but I think there were at least a couple of cars had stopped by then, and someone had gone to call the police . .. not as many ass later stopped, but ...
Q. Did they have their lights on, or do you remember?
A. I don’t really remember. I think some of them may have already started trying to driect (sic) traffic and use flashlights and things. I know I didn’t have a flashlight, I was just out in front of the car waving.
Q. You said you would die if yoü didn’t get out of the way and you jumped to the side of the road, and what happened?
A. I jumped off to the shoulder and looked back, and then I saw Mr. Lewis’ car hit ours with my sister inside . .. and more or less crumpled the thing up like a piece of waste paper. It was a pretty hard lick.
Q. Then what did Mr. Lewis do?
A. He got out and looked at the car, and then ...
Q. When you say the car you mean . . .
A. At both of them, at the place where they came together, and then he got back in. I believe he had some trouble trying to get the car loose. I believe maybe the bumpers were locked . .. they were hung together some way . . so he began trying to get them loose. Basically the last thing I remember is that he left.
Q. He was able to pull his car away?
A. Finally ... it took awhile.”

Cynthia’s Sandel’s testimony was fully corroborative of her brother’s statement and which seemed to explain the context of plaintiff Lewis’ testimony that an oncoming driver asked “... for his light .... ”

“[BY MR. PALMER:]
Q. I’m particularly interested in the second accident. You were involved in one where another car came into your lane and struck your vehicle, is that correct?
[CYNTHIA SANDEL:]
A. We struck his vehicle because it came into our lane.
Q. Was that a severe accident?
A. No, very, very mild.
Q. Following that accident what did you do?
A. O.K. the car we were in was relatively old, it was a white car, and . . I don’t know maybe the flasher we could have turned it in such a way it would have stayed on, but we couldn’t figure out exactly how to do it so I said I will just sit in the car and hold the flasher on. The left front door, the driver’s door, was open, because my brother had gotten out to go see if the other guy was o.k. To make sure everybody was all right, and I was sitting in the car holding the flasher on.
Q. Were the flashers working?
A. Yeah. You could see them. It was dark enough outside to where you could see if something was flashing.
Q. You could see them coming on and off?
A. Right, you could see them flashing.
Q. Was the dome light on in your car?
A. The overhead light?
Q. Correct.
A. Right.
Q. The other car that was involved in the first accident, were it’s (sic) flashers on?
A. Yes.
Q. Do you recall whether the headlights of either your car, or the other car, were on?
A. I don’t recall. I couldn’t say one way or the other.
Q. Were your headlights and the other car headlights on before the accident occurred?
A. Yes.
Q. Do you recall having turned your lights on or off, or having them turned off by someone else?
A. I honestly don’t know. I don’t know that the headlights would have been on or I probably would not have been able to see the flashers flashing.
Q. Did your brother get out of the car?
A. Yes.
Q. Were you at anytime aware of an oncoming vehicle in your northbound lane, specifically the vehicle owned and driven by Mr. Ray Lewis?
A. Well I was holding the flasher on, and the direction that his car would have been coming was probably over my left shoulder . . . slightly over my left shoulder .. and I was holding the flasher on, and there was some people had stopped to help . . . there was a man who had stopped, and a couple who were dressed up. They were on their was going somewhere, I don’t know where, and I heard a woman scream. I looked up and saw the headlights coming. Then I just blacked out.
Q. You were in the car when it was struck?
A. Right.
Q. There were other cars that had stopped at the scene of the accident?
A. There were at least two, and I couldn’t say if there were anymore than that .. . but at least two.
Q. Do you know which side of the road they were parked on?
A. One car had parked on the shoulder on our side of the road.
Q. Was he in front of your car, or behind you?
A. He would have been in front of the other car that we had hit.
Q. All right ...
A. .. And the other car was on the other side of the road, on the shoulder, pretty much in the same position we were ... same area, but on the shoulder.
Q. Did either one of those cars have lights or flashers on?
A. No, the guy on the other side of the road, parked on the shoulder, had a high beam flashlight . . but I don’t honestly recall whether he had his lights on or not.
Q. What was he doing with the high beam flashlight?
A. Well he wasn’t doing anything yet, but he was just kind of ... I think they were getting ready to wave traffic around, but like I said the accident had just happened, and I don’t think anyone was prepared for another car coming that soon.
Q. Did the fellow with the high beam flashlight get out of his car with the flashlight?
A. Right.”

The only other witness called by defendants was the investigating officer. He was unable to recall, independently, any substantial details of the accident, but, using his report, he testified that Lewis was not present at the scene when he arrived; that he, therefore, characterized the accident at that time as a “hit and run.” The only testimony given by the officer which bore materially on the question of liability was his recollection that the roadway at the scene of the accident was “straight and level.”

Jimmy Hammer, the defendant-driver of the vehicle which first collided with the Sandel vehicle, did not answer the lawsuit nor did he make any appearance. Plaintiff sought to confirm a preliminary default against him.

The trial court found that plaintiff had failed to sustain the burden of proof by preponderance; that he failed to see what he should have seen, i. e., defendants’ illuminated vehicle, and that his negligence was at least a contributory factor to the accident.

Our review of the testimony compels the same conclusions. Furthermore, the nature of the conflict in testimony necessarily required the trial court to consider the credibility of the witnesses. There was an ample evidentiary basis for the court to con-elude that the defendant, Sandel, had used his flashers to warn approaching traffic; that the vehicle which blinked its headlamps was, indeed, stopped and engaged also in warning approaching traffic, and further that plaintiff simply breached his duty to observe the roadway ahead of him and failed to see and appreciate the hazardous conditions which existed. This negligence was the cause-in-fact of the accident. Dixie Drive It Yourself System v. American Beverage Company, 242 La. 471, 137 So.2d 298, 299 (La.1962); Marcum v. United States, 621 F.2d 142 (5th Cir. 1980). We find no manifest error in the trial court’s decision. Arceneaux v. Domingue, 365 So.2d 1330 (La.1979).

For the foregoing reasons, the judgment appealed from is, therefore, affirmed at appellant’s costs.

AFFIRMED ON REMAND.


text:
    Willie PLAIN d/b/a Interstate Shell Service v. REFRIGERATED TRANSPORT COMPANY, INC. and James L. Soukup.
    No. 13793.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 15, 1980.
    Johnnie A. Jones, Baton Rouge, for plaintiff-appellant Willie Plain d/b/a Interstate Shell Service.
    Kenneth E. Barnette, Baton Rouge, for defendants-appellees Refrigerated Transport Co., Inc., and James L. Soukup.

      Before COVINGTON, CHIASSON and LEAR, JJ.
   LEAR, Judge.

Willie Plain d/b/a Interstate Shell Service perfects this appeal from a judgment rendered in his favor but which limited his recovery of damages.

On September 29, 1977, near the hour of 8:30 p. m. in Baton Rouge, Louisiana, defendant-appellee, James L. Soukup, was operating an eighteen-wheeled vehicle near a service station owned and operated by plaintiff-appellant. In attempting to cross a portion of the service station premises, defendant negligently collided with and damaged a parked 1976 Chevrolet automobile owned by plaintiff. Substantial damages were incurred and plaintiff instituted suit against defendants, James L. Soukup, Refrigerated Transport Company, Inc. and Frank Albiero.

The initial suit herein was litigated through the Supreme Court of Louisiana which dismissed as of nonsuit.

Plaintiff filed suit anew, and the matter was tried and judgment entered in his favor and against James L. Soukup in the sum of $2,864.30. Plaintiff’s claims against Refrigerated Transport Company, Inc. and Frank Albiero were dismissed. Plaintiff-appellant urges several errors on appeal.

Three of the errors assigned by appellant relate to the right of a property owner to recover in tort for the loss of use of the “thing” for a period of time and the manner in which the damages, if any, are determined. In the trial court, plaintiff tried to establish that he was deprived of the use and enjoyment of his vehicle for several months; that it was necessary to rent a car from his brother at a price of $35.00 per day, although the record is devoid of specifics. Plaintiff adduced a modicum of testimony to prove the current market price of a rental car at the time of trial (1979) but not at the time of the accident (1977). The trial court, citing these shortcomings, denied recovery. It did allow, however, the sum of $250.00 for inconvenience, mental anguish and humiliation.

It is significant that the only testimony adduced by the defense concerned the appraisal made by Larry J. Hutchens, the adjuster for Crawford Company. His appraisal was made on October 25, 1977, approximately twenty-six days after the accident. The plaintiff called as a witness Joseph Day, the operator of Instant Body Shop which made the repairs herein, who testified that the estimated time for repairs — including requisition of parts — was approximately four weeks. It is clear, therefore, that plaintiff was deprived of his car for a minimal, calculable period of eight weeks.

Appellant is entitled to recover for the loss of use of his automobile during a reasonable period commencing with the accident and ending with repairs, diligently undertaken. Alexander v. Quick Change Car Center, Inc., 352 So.2d 188 (La.1977); Nolan v. Liuzza, 301 So.2d 892 (La.App. 4th Cir. 1974); and Chriss v. Manchester Insurance & Indemnity Company, 308 So.2d 803 (La.App. 4th Cir. 1975). In Chriss, the court said, at page 806:

“The normal measure of damages for loss of use is the rental value of similar property and perhaps necessary incidental expenses. It is not necessary, however, that a plaintiff actually rent substitute property in order to recover damages due to loss of use. Rental (which accomplishes the substitution of the use of similar property for that of an injured property) does not determine entitlement to damages, but only provides a fair measure of damages in appropriate cases.”

Accordingly, we hold that the lower court’s award of $250.00 for, inter alia, inconvenience, was insufficient in light of the circumstances and we, therefore, increase that amount to $500.00.

The appellant claims that the trial court erred in failing to allow a sum for depreciation in the value of his car due to the tort. However, absent any evidence whatsoever to prove the amount of this item, the court was correct in disallowing it.

Appellant assigns error to the refusal of the lower court to tax costs against defendant-appellee incurred in a prior action involving the same parties and issues. (See Footnote 1.) As the trial court correctly stated, the Court of Appeal’s holding which required plaintiff-appellant to pay all costs was neither reviewed nor reversed by the Supreme Court. That judgment, therefore, is final and non-reversible.

Finally, appellant assigns error to the trial court’s dismissal of action against defendants, Refrigerated Transport Company, Inc. and Frank Albiero. None of the defendants nor any agents thereof testified during the trial. Apparently, proof of liability against these two defendants was based on certain answers to interrogatories submitted by Refrigerated Transport Company, Inc. These interrogatories, answers and attachments thereto were never offered by plaintiff at the trial, although mentioned in the pretrial order. It is axiomatic that the only evidence considered in the trial of a cause is that offered by the parties and admitted by the trial court. Plaintiff’s assignment of error is without merit.

For the foregoing reasons, the judgment of the trial court is amended to increase the award from $2,864.30 to $3,114.30. In all other respects, the judgment of the trial court is affirmed at appellee’s costs.

AMENDED AND AFFIRMED.

      . 367 So.2d 867 (La. 1979).

      . There were no cancelled checks or rent receipts produced and plaintiffs brother did not testify.


text:
    Elise Brown Catchings ROUPRICH v. Stanley Joseph ROUPRICH.
    No. 13834.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 15, 1980.
    George K. Anding, Jr., Baton Rouge, for plaintiff-appellee Elise Brown Catchings Rouprich.
    Patsy Jo McDowell, Baton Rouge, for defendant-appellant Stanley Joseph Rouprich.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   LEAR, Judge.

Appellant, Stanley Joseph Rouprich, appeals from an adverse judgment wherein the lower court granted alimony in favor of his plaintiff wife after she obtained a judgment of divorce based on two year separation.

Appellant and his wife, Elise Brown Catchings Rouprich, were married in San Juan, Puerto Rico, in 1951. They moved to East Baton Rouge Parish in 1952. They are the parents of three children, all adults.

The parties purchased a home and established the same as their matrimonial domicile at 4348 West Lakeshore Drive in Baton Rouge, Louisiana. There they resided as husband and wife until on or about December 25, 1965, when Mr. Rouprich moved out and did not return. Mrs. Rouprich stayed in the family home, apparently with the aid and assistance of appellant, who for nearly seven years thereafter sent his entire pay-cheek to her on a monthly basis.

In 1978, Mrs. Rouprich filed for divorce based upon living separate and apart for more than two years. Appellant answered and reconvened, seeking a divorce in his favor based upon two years’ separation. Mrs. Rouprich then amended her petition, claiming the right of alimony:

“9.
“Petitioner has not been at fault, and has not sufficient means for her support. Petitioner is therefore entitled to, and asks that this Court allow her, permanent alimony from defendant in the amount of $500.00 per month.”

After trial, the lower court granted a divorce in favor of Mrs. Rouprich and further condemned Mr. Rouprich to pay alimony in the following terms:

“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that as alimony for Elise Brown Catchings Rouprich, Stanley Joseph Rouprich is hereby ordered to allow Elise Brown Catchings Rouprich use of the community asset home, until the community is partitioned, after which either party may request a modification.”

The critical question posed on review is that of whether the plaintiff-appellee carried her burden of proving that she is free from fault as required by article 160 of the Civil Code.

At the trial below, not a scintilla of evidence was adduced to prove that the wife was free from fault or that defendant-appellant left his wife without cause.

Appellee’s theory was apparently based on her allegation in the original petition for divorce that appellant had abandoned her. However, once the defendant has answered and denied said allegation, as here, the plaintiff bears the burden of proving the same by a preponderance of evidence. Deliberto v. Deliberto, 337 So.2d 1221 (La.App. 1st Cir., 1976).

We have reviewed the record and find no basis upon which to uphold the lower court’s ruling under the test of Ar-ceneaux v. Domingue, 365 So.2d 1330 (La. 1978).

For the foregoing reasons, the ruling of the lower court awarding alimony herein is reversed and plaintiff-appellee’s petition in that regard is dismissed. Appellee is to pay all costs of this appeal.

REVERSED AND RENDERED.

      . “Art. 160. Alimony after divorce
      “Art. 160. When a spouse has not been at fault and has not sufficient means for support, the court may allow the spouse, out of the property and earnings of the other spouse, alimony which shall not exceed one-third of his or her income. * *

      . “4.
      “On December 25, 1965, defendant abandoned the matrimonial domicile and left petitioner; and he has since constantly and consistently refused to return."