author: SARTAIN, Judge. BARRY, Judge.

text:
    Leland Paul BENNETT v. Essie DEWEESE, Wife of Leland Paul Bennett.
    No. 11438.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 10, 1981.
    On Rehearing April 20, 1981.
    Rehearing Denied May 15, 1981.

      Lemle, Kelleher, Kohlmeyer & Matthews, Paul B. Deal, New Orleans, for plaintiff-ap-pellee.
    Nel F. Vezina, Gretna, for defendant-appellant.
    Before SAMUEL, BARRY and SAR-TAIN, JJ.
   SARTAIN, Judge.

In this suit both parties seek a separation, the husband on his main demand and the wife on her reconventional demand. The trial court granted a judgment in favor of the wife but also determined that she “was not free from fault.” The wife appealed on the issue of fault. The husband answered the appeal seeking a reversal of the judgment against him to one in his favor. The incidental matters of custody of the minor children, alimony pendente lite for the wife and support for the children are not at issue. We reverse as to the finding of fault on the part of the wife and otherwise affirm.

In his judgment the trial judge made the following findings:

“Mr. Bennett was at fault for refusing counseling, telling his wife he did not love her and ultimately leaving the domicile. Mrs. Bennett was not free from fault. Her change in lifestyle (intense commitment to religion) was a contributing factor in the ultimate deterioration of this marriage.”

The testimony reveals that Mr. and Mrs. Bennett were married in 1961. Both were Presbyterians and shortly thereafter they became affiliated with the Jefferson Presbyterian Church, Jefferson Parish, Louisiana. Mr. Bennett was then employed by the Jefferson Parish School Board as a music teacher and band director. He derived outside income through his performance with a local band. By his own admission he rarely attended church. When their two children were small Mrs. Bennett either took them to church or saw that they attended.

In 1966 Mr. Bennett was employed by the Tulane University Center, a position he presently holds. He is in charge of all of its entertainment activities for students, including speakers, movies, and musical productions. He has also incorporated his own band (Jubilation, Inc.) and concedes that these pursuits necessitate his absence from the family home on an average of four to five evenings a week. He stated that during the earlier years of his marriage and until some time in 1974, he and Mrs. Bennett entertained in their home and that she was an excellent hostess. However, he claims that in 1974 Mrs. Bennett became associated with the Westwego Assembly of God Church and that from that date on she has become obsessed with religion. She remained in the kitchen when they entertained which was a source of embarrassment to him. She likewise commenced to restrict the type of movies and television programs the children were permitted to attend and observe. In August of 1975, and over his objection, Mrs. Bennett commenced the operation of a retail business. (Gospel Bookstore, Ltd.), selling religious items and literature. The inference is that this business is also associated with her church. He also objects to the fact that both of their children (a son 17 and a daughter 14) attend private schools associated with her church. He stated that his wife and children attend church three to five times a week and have a prayer service in their home one evening a week. He found her zealousness and the proselytizing of his friends and relatives embarrassing. It affected his feelings towards her and “it’s just a matter of gradually growing apart over a period of time.” He does not now love his wife, told her so, and declined to go to counseling on her suggestion. During a discussion between the two he claims she asked him to leave.

Mrs. Bennett’s testimony concerning their early marriage coincides generally with that of her husband. However, she denies that she raised any objection to the entertainment of her husband’s band and university associates in the home. She stated that when the children were young she had the sole responsibility of their religious training. Her husband rarely if ever attended church. He was away from the home an average of five to six evenings a week. On the Sunday mornings he was home he slept late. To her “honest remembrance” she could not recall a single instance when her husband attended church with her and the children from 1961 to 1978. She denies ever objecting to any type of entertainment in the home and went to the kitchen only to replenish the type of refreshment being served. She acknowledged that she objected to going to certain types of movies with her husband and did scrutinize the children’s television programs. She claims that the children have never been in any kind of trouble.

With respect to her church affiliation she stated that she was not happy with the Jefferson Presbyterian Church and desired to change. She visited several churches before selecting the Westwego Assembly of God Church. The children agreed with her selection and also attend. They go to this church on Sunday mornings and evenings and have a study group one evening a week in their home which is scheduled for an evening Mr. Bennett is occupied with his endeavors and would not be present. She said her husband never voiced any objection about her religious persuasion or church activities until shortly before they separated. He also approved of her opening the book store. Both use the same C.P.A. for their personal tax return, Jubilation, Inc., and Gospel Bookstore, Ltd. She claims that the book store is non-denominational and sells Sunday School supplies, church supplies, Christian music to all churches. It does not handle religious literature used by Westwego Assembly of God Church. The daughter does attend a private school conducted by another church of the same general faith. The son attends a private Catholic parochial school that was mutually selected by her and her husband when it was decided for reasons not pertinent to this litigation that he should change from a local public school.

She claims to still love her husband and that she never asked him to leave. She stated that several days before he left he called her from work and told her he was leaving. She asked him to wait until the weekend because the children were scheduled to be out of town.

The above quoted findings of the trial judge, although contained in the final judgment, represent the extent of his reasons for judgment. Inherent in this determination is the conclusion that the judgment is based on C.C. art. 141, which provides:

“A separation from bed and board shall be granted although both spouses are mutually at fault in causing the separation. In such instances, alimony pendente lite may be allowed but permanent alimony shall not be allowed thereafter following divorce.”

The fault contemplated in C.C. art. 141 is conduct on the part of each spouse which, standing alone, would support a judgment of separation. Saucier v. Saucier, 357 So.2d 1378 (La.App. 4th Cir. 1978); Brocato v. Brocato, 369 So.2d 1083 (La.App. 1st Cir. 1979), writ refused, 371 So.2d 1341 (La. 1979); and Adams v. Adams, 389 So.2d 381 (La.1980).

We have no difficulty with the trial judge’s determination of fault on Mr. Bennett’s part. His statement to her that he no longer loved her, which he repeated at the trial, coupled with his departure from the marital home, constitute ample grounds for a separation, unless he can show that his wife was also at fault and gave him cause to abandon her. C.C. art. 138(5).

The thrust of Mr. Bennett’s argument is rather directly stated in his counsel’s brief where the “critical issue” is posed in the following query: “Have we progressed far enough to the point where we can recognize and acknowledge that religious zealousness can destroy a marriage, in this case did destroy a marriage, and that the behavioral aberrations brought about by such zealousness do constitute ‘fault’ within the meaning of that term in the Louisiana Civil Code?” Under the facts of this case, we think not.

We find the rationale expressed in Krauss v. Krauss, 163 La. 218, 111 So.2d 683, 685 (1927), appropriate here. There the court stated:

“It is contended on behalf of the defendant that the religious differences between the spouses and the break between plaintiff’s father and defendant furnished the only cause on which the suit for separation is founded.
“We do not think this argument is sustained by the record when considered as a whole.
“If the plaintiff’s evidence went no further than to show religious differences that would end the ease.
“The law has not designated and indeed could not make diverse religious opinions a legal cause for separation. The fundamental law of the land guarantees freedom of religion and the right to worship according to the dictates of one’s own conscience.
“The defendant had the legal and moral right to pursue and to practice his own religious faith, and no court could deny such right or even criticize adversely the proper exercise of that right.
“But no law, divine or human, can be found to justify a husband in practicing his religious faith in such a manner as to reduce his wife and children to a state which would ultimately if continued, lead to extreme poverty. It is a warning of divine origin that he who does not provide for his own and especially for those of his own house, hath denied the faith and is worse than an infidel. Nor was the husband justified in so practicing his religious faith as to completely ostracize his wife from the public and to make of her a perfect recluse, to degrade her social status, and to humiliate her by forcing her to sever all associations and contact with her friends and the public in general except those of his own household of faith.
“There cannot be found any religious tenets which would justify the husband in publicly declaring that his wife was leading a vain and empty life and was unfit to rear, educate, and train her children because forsooth she did not follow him in his religious convictions.
* * sk * * *
“The courts will look, not such much to the originating cause of the cruel treatment, but to the nature and character of the treatment itself in determining the question as to whether it amounts to such cruelty as to warrant a separation.
Sfs * Sfc * * *
“And where the conduct of a spouse is calculated permanently to destroy the peace of mind and happiness of the other so as utterly to destroy the objects of matrimony, a divorce may be granted on the ground of cruelty.
* * * * * *
“We must hold therefore that any unjustifiable conduct on the part of either husband or wife which so grievously wounds the mental feelings of the other, or such as in any other manner utterly destroys the legitimate ends and objects of matrimony, constitutes cruelty, although no physical or personal violence may be inflicted or threatened.”

In the present case the only persons to testify were the parties themselves. No other evidence was offered. The averments of Mr. Bennett are wholly unsupported save by his own statements and the conclusions he has reached. The record is totally barren of any effort made by him to signify his objection to his wife’s religious persuasion and/or endeavors until shortly before they separated and after he had determined that they were a source of embarrassment to him, had a disrupting influence upon his family life, and had already come to the conclusion that he no longer loved her. Throughout this period he concedes that she maintained the home, prepared the meals and shared the marital bed with him. When the objection was finally made he declined counseling and soon thereafter departed the home. We find that he has failed to prove legal fault on the part of Mrs. Bennett.

For these reasons the judgment of the district court insofar as it determined that Mrs. Bennett “was not free from fault” is reversed. In all other respects the judgment of the district court is affirmed at Mr. Bennett’s costs.

REVERSED IN PART, AFFIRMED IN PART.

ON MOTION FOR REHEARING

BARRY, Judge.

On review I fail to find manifest error to justify reversal of the District Court judgment.

If the rationale expressed in Krauss v. Krauss, 163 La. 218, 111 So. 683, 685 (1927) is appropriate here, as stated in the opinion, then the following language in Krauss would be an appropriate basis to hold the wife at fault:

“We must hold therefore that any unjustifiable conduct on the part of either husband or wife which so grievously wounds the mental feelings of the other, or such as in any other manner utterly destroys the legitimate ends and objects of matrimony, constitutes cruelty, although no physical or personal violence may be inflicted or threatened.”

Therefore, in order to reverse the District Court, we must find manifest error in its determination that the wife’s religious zealousness was not unjustifiable conduct sufficient to constitute cruelty.

Certainly, there should be no question that religious zealousness can be considered fault under appropriate facts. “Cruel treatment in any form that renders married persons living together insupportable is a legal ground for judicial separation in favor of the mistreated one.” Chopin v. Chopin, 234 So.2d 781 (La.App. 1st Cir. 1970); Krauss v. Krauss, supra.

In his reasons for judgment the District Judge found the wife at fault and stated: “Her change in life-style (intense commitment to religion) was a contributing factor in the ultimate deterioration of this marriage”. Without a finding of manifest error the judgment of the District Court should be affirmed and the rehearing should be granted.


source: Caselaw Access Project

author:
GARRISON, Judge.
      REDMANN, Judge,

license: Public Domain

text:
    Rose D. CHAUSER v. Glenn L. BABIN.
    No. 11466.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 10, 1981.
    Rehearing Denied May 15, 1981.
    Writ Granted July 2,1981.

      Joel B. Dickinson, Joel B. Dickinson & Associates, Baton Rouge, for plaintiff-appellant.
    Glenn P. Marcel, Baton Rouge, Ralph R. Miller, Norco, for defendant-appellee.
    Before REDMANN, GULOTTA, and GARRISON, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court dismissing an action on a promissory note held by the plaintiff, Rose D. Chauser, on an exception of prescription. From that judgment, which we affirm, plaintiff appeals.

On appeal, plaintiff argues that the trial court erred in rendering judgment in the absence of a contradictory hearing and that due to the absence of a contradictory hearing, plaintiff-holder was denied the opportunity to offer evidence of interruption of prescription.

Upon our independent review of the record, we note that the exception was filed on December 17, 1979. On that same day, the trial judge signed an order setting the exception for hearing on January 24, 1980. The exception and order also exhibit a cer-. tificate of the clerk reading:

“I hereby certify that a copy of the foregoing motion and/or order has . been mailed to all counsel of record this 17th day of December, 1979 By: /S/ Denise Bye (Deputy Clerk), Charles J. Oubre, Jr., Clerk of Court.”

At the hearing held on January 24, 1980, plaintiff neither appeared for the hearing, nor was represented by her attorney. As no evidence was presented by plaintiff, judgment dismissing her case was entered that day. We note that the judgment contains a certificate of mailing by the Clerk of Court dated January 24, 1980.

We conclude that plaintiff did have an opportunity to present evidence at a contradictory hearing, but failed to avail herself of that opportunity. Plaintiff now seeks to present evidence by attaching photocopies to the back of her brief. The uncertified photocopies are of evidence not contained within the record, hence they are outside of the scope of review of this court.

The trial court concluded that the mortgage executed on October 8, 1965 and payable in sixty monthly installments (5 years) was a mortgage the entire indebtedness of which matured in less than nine years under C.C. Art. 3369. The date of registration of the mortgage was October 22,1965,10:27 a. m., but the mortgage was not reinscribed in 1975, when the 10 year period had run. The court further concluded that the promissory note had prescribed under C.C. Art. 3540, which provides for a 5 year prescriptive period. In the absence of proof, as opposed to mere allegations of interruption of prescription, the trial court’s judgment is correct.

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

AFFIRMED.

REDMANN, J., concurs and assigns written reasons which are attached hereto.

REDMANN, Judge,

concurring.

Plaintiff’s complaint is not reviewable on this appeal. She should file an action of nullity to set aside the judgment for lack of service of the order setting the exception for hearing. See Roper v. Dailey, La.1981, 393 So.2d 85.


author: BARRY, Judge.

text:
    Johnnie D. POWELL, Emma D. Cline, Christine Williams, and A. Ruth McClinton v. Pamela WARNER, Allstate Ins. Co., Mississippi Farm Bureau Mut. Ins. Co., Commercial Union Ins. Co., and Resolute Ins. Co.
    No. 11468.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 10, 1981.
    Rehearing Denied May 15, 1981.
    Robert 0. Homes, Jr., Metairie, for plaintiffs-appellants.
    Porteous, Toledano, Hainkel & Johnson, John J. Hainkel, Jr. and Daniel R. Hynes, Wiedemann & Fransen, C. Scott Carter, New Orleans, for defendant-appellee.
    Before SAMUEL, BARRY and SAR-TAIN, JJ.
   BARRY, Judge.

Plaintiffs sued Pamela Warner and her insuror, Allstate Insurance Company, for damages as a result of a rear end collision which occurred in Metairie, Louisiana. Joined as additional defendants were Commercial Union Insurance Company and Mississippi Farm Bureau Insurance Company under policies held by two of the plaintiffs which provided uninsured coverage.

Plaintiffs compromised their claims against Warner and Allstate for policy limits and executed a restricted motion to dismiss them as defendants. Commercial Union and Mississippi Farm are the remaining defendants and each filed motions for summary judgment which were granted. Plaintiffs appeal urging that Louisiana law should apply to this case because of the totality of contacts within Louisiana.

Plaintiff Johnnie Powell was the owner and the other three plaintiffs were guest passengers in the Powell vehicle. Mississippi Farm and Commercial Union were sued in contract as uninsured carriers under policies issued to plaintiffs Powell and the father of a co-plaintiff.

All four plaintiffs were residents of Mississippi. Defendant, Mississippi Farm, is a Mississippi corporation whose policy was issued under the provisions of Mississippi law to a Mississippi resident (Powell) on his vehicle which was registered and garaged in Mississippi.

Defendant Commercial Union’s policy was issued in and by a Mississippi agency under the provisions of Mississippi law to a Mississippi resident (Williams) covering his vehicle which was registered and garaged in Mississippi.

Plaintiffs filed suit in Jefferson Parish as the site of the accident and on the additional basis that Pamela Warner, the dismissed defendant, was an alleged resident of Louisiana. The record shows that Warner, 20 years old at the time of the accident in 1974, had been living with her parents in Vicksburg, Mississippi since 1968. One month prior to the accident Warner began living with her aunt in Metairie during which time her Mississippi driver’s license expired and she obtained a Louisiana license. Pamela’s car was bought and registered in Vicksburg, Mississippi where she also purchased her Allstate coverage. Two weeks after the accident Pamela returned to Mississippi.

For years Louisiana followed the reasoning of Johnson v. St. Paul Mercury, 256 La. 289, 236 So.2d 216 (1970) in which an accident involving Louisiana residents occurred in another state and that state’s law was applied in our courts. The effect of Johnson was utilization of the lex loci delicti rule.

This rule was explicitly overruled in Jagers v. Royal Indemnity Company, 276 So.2d 309 (La.1973) wherein our Supreme Court applied Louisiana law to a suit which arose out of an accident in Mississippi between two Louisiana domiciliaries. The Court interpreted the facts in Jagers as presenting a “false conflict”, i. e., a situation that arises when one state has an interest in the application of its law and the other state has no interest in the application of its law.

Plaintiffs seek jurisdiction in Louisiana because Mississippi has no statutory provision for underinsured coverage. As noted above, the former defendant Warner had insurance which paid policy limits to plaintiffs. Mississippi has an uninsured motorist statute, Codes, Article III, Sections 83-11-101, et seq., under which “uninsured motor vehicle” is defined:

“. .. a motor vehicle as to which there is (1) no bodily injury liability insurance, or bodily injury liability insurance with limits less than the amounts specified in Section 83-11-101, but it will be considered uninsured only for that amount between the limit carried and limit required in Section 83-11-101.

There is no provision or requirement in this or any other Mississippi statute for “underinsurance” as we know it in LSA-R.S. 22:1406.

Appellant relies upon the Second Circuit holding in Sutton v. Langley, 330 So.2d 321 (La.App. 2nd Cir. 1976). There the parties were Texas residents and the accident happened in Louisiana. The defendant uninsured motorist was found at fault and the court applied Louisiana law to plaintiff’s uninsured coverage because “.. . the interests of Louisiana outweigh the interests of the foreign state ...” (P. 327). The award in Sutton was rationalized as Louisiana’s way of protecting persons on its highways from damage by uninsured motorists and as a means of regulating awards to victims.

Here plaintiffs had the protection afforded by Warner’s Allstate policy, however nominal in amount. Warner’s policy conformed with Mississippi law and exceeded the minimum Louisiana statutory require-merits. Plaintiffs are not seeking uninsured coverage, as in Sutton, but rather ask that underinsured limits be created and judicially added to the policies which they purchased.

Lex loci delicti no longer governs, and we find no basis to consider a “false conflict” as in Jagers, supra, nor was the alleged tort-feasor uninsured as in Sutton, supra. Further, the “interest analysis” is not applicable since we are not confronted with a choice of law under Restatement 2nd, Conflict of Laws, Sec. 6.

Louisiana has provided statutorily for resolution of appellants’ position. LSA-C.C. Art. 10 states:

The form and effect of public and private written instruments are governed by the laws and usages of the places where they are passed or executed.
# * * * * *

Plaintiffs cannot invoke the uninsured provisions of their policies to add the unde-rinsured provisions of Louisiana law. The pleadings and record present no question of material fact and the motions for summary judgment by Commercial Union and Mississippi Farm were properly granted.

Accordingly, the judgment of the District Court is affirmed with all costs of this appeal to be paid by plaintiffs.

AFFIRMED.

      . In Texas the guest passenger statute requires intentional fault or gross negligence for recov-erv, and “stacking” of uninsured coverage is not permitted.

      . Mississippi uninsured policy mínimums are $10,000/20,000; Louisiana mínimums are $5,000/10,000.


author: BOUTALL, Judge. SAMUEL, Judge,

text:
    SENTRY INSURANCE, a Mutual Company, Partial Subrogee To the Rights of/and Robert W. Booksh, Jr. v. William A. MARKS, Joseph R. Justin, Jr. and the Insurance Company of Florida.
    No. 11513.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 10, 1981.
    Rehearing Denied May 15, 1981.

      Edward L. Levert, Jr., Young, McMahon, & Levert, New Orleans, for plaintiffs-appellants Sentry Ins. et al.
    Nick F. Noriea, Jr., Kierr, Gainsburgh, Benjamin, Fallon & Lewis, New Orleans, for defendants-appellees William A. Marks and Joseph R. Justin, Jr., et al.
    Before SAMUEL, REDMANN and BOU-TALL, JJ.
   BOUTALL, Judge.

This suit concerns a collision between two automobiles at the intersection of Lafayette Street and O’Keefe Ave. in the central business district of New Orleans. One of the two cars in the collision was a taxi-cab being driven by Joseph Justin and the other automobile was operated by Jack Naify. This collision caused Justin to lose control of the taxi-cab thereby striking the third car owned by Robert Booksh which was located in a nearby parking lot. Pursuant to a policy of insurance that Booksh had with Sentry Insurance A Mutual Company (hereinafter referred to as Sentry), the former received $656.76 of the total property damages to his automobile of $756.76, the difference of $100 representing the amount of the deductible. The payment made by Sentry effectively subrogated it to any rights of its insured Booksh. Together Sentry and Booksh filed suit against Justin as driver of the taxi-cab, William A. Marks as owner of this vehicle, and his insurer, the Insurance Company of Florida, for recovery of the property damages. Marks filed a third party demand against Jack Naify as driver of the other automobile involved in the intersectional collision and Richard Naify as owner of said automobile seeking indemnity for any liability he may be held to owe the plaintiffs.

Upon trial of this matter, judgment was awarded in favor of the defendants, Justin, Marks, and the Insurance Company of Florida, thereby dismissing the plaintiff’s suit. From this judgment the plaintiffs have appealed devolutively.

On appeal the only issue before us concerns the liability of the defendants, Justin, Marks and the Insurance Company of Florida.

The. evidence before us reveals that on or about September 7, 1978, at 8:45 A.M., Joseph R. Justin, Jr. was operating a taxi-cab in a northerly direction on Lafayette St. After arriving at the intersection of Lafayette St. and O’Keefe Ave., Justin stopped his automobile at the stop sign and waited for the traffic to clear in order to cross the intersection. Traffic on O’Keefe Ave. was very heavy. Justin proceeded cautiously into the intersection and after crossing the first two lanes of traffic he entered the third lane whereupon he was struck by an automobile being driven by Jack Naify. Justin testified as follows:

“I eased out through the first lane, and I eased through the second lane. I looked over the car for the third lane and there wasn’t anything coming at the moment. Just as I nosed out to go across the third lane, eventually this man must have jumped from the middle lane, I can’t say that he did, and he hit me.”

As a result of this collision, the taxi-cab being driven by Justin was propelled into a nearby parking lot thereby striking the automobile owned by Booksh which was located therein.

The law is well settled in a factual setting of this kind. The rule is that a driver entering a right-of-way street where the view is obstructed is under a duty to proceed with extraordinary caution. Dou cas v. Universal Underwriters Ins. Co., 334 So.2d 767 (La.App. 3rd Cir. 1976); Continental Ins. Co. v. Duthu, 235 So.2d 182 (La.App. 4th Cir. 1970). In applying the law to the evidence before us, we find that Justin fulfilled his duty of using extraordinary caution when he entered O’Keefe Ave. Such a finding precludes any liability on the part of Justin as well as Marks as the owner of the taxi-cab and the Insurance Company of Florida as its insurer. This finding is further supported by the rule of evidence that the testimony of a witness which has not been controverted, and has been accepted by the trial court as true must be accepted by the appellate court as true. B. Segall Company, Inc. v. Trahan, 290 So.2d 854, 857 (La.1974). The testimony by Justin as to the caution exercised by him in entering the intersection was not contradicted. Therefore, it will be regarded as true. Finally, we cannot say that the judgment of the trial court was manifestly erroneous. Arceneaux v. Domingue, 365 So.2d 1330 (La.1979).

For the reasons above we affirm the judgment of the trial court dismissing the plaintiffs’ claim against the defendants.

AFFIRMED.

SAMUEL, J., dissenting.

SAMUEL, Judge,

dissenting.'

I agree we must accept as true the uncon-tradicted testimony of the defendant-taxicab driver, which testimony apparently was accepted by the trial court. But such acceptance, in both courts, must be restricted to those facts to which the witness was competent to testify.

The favored street, O’Keefe, which this defendant driver was crossing, is a one-way street. It has four lanes, two outside lanes ordinarily reserved (or used) for parking and two inside lands for moving traffic. However, the extreme left outside lane, the fourth lane the defendant driver intended to cross and the one in which the accident occurred, was open for moving traffic during part of the day and was so open at the time of the accident.

The defendant driver’s view to his left, the direction from which the O’Keefe traffic was approaching, was blocked by the stopped vehicles in the two center or inside lanes. It was physically impossible for the defendant driver to properly see approaching traffic in the fourth lane, as he says, “over the car for the third lane”. At the very least, considering the manner in which he drove into the fourth lane, it was impossible for him to see such approaching fourth lane traffic in time to avoid the collision or in time to estimate the speed of the other defendant’s vehicle. His view was not only blocked by the first car in the third lane, it was also blocked by the following vehicles in that lane.

It appears to me that the rules relative to blind or partially blind intersections are applicable. In that jurisprudence both drivers are held to be negligent. Indovina v. Logrande, 70 So.2d 456, is in point. Here the other defendant driver had the right of way and certainly plaintiff is entitled to recover.

In addition, because the plaintiff vehicle was parked and unattended in a lot off the street when struck by the taxicab, the defendants are under a heavy burden to prove an absence of negligence on their part. In my view, they have failed to carry that burden.

As I would reverse and award damages to the plaintiff, I respectfully dissent.

      . Byrnes v. Bostick, La.App., 214 So.2d 179; Lilly v. Schmitt, La.App., 198 So.2d 502; Kerner v. Lumbermens Mutual Casualty Co., La. App., 172 So.2d 711; Bruno v. Anderson, La. App., 123 So.2d 654; Floyd v. Roberts, La.App., 72 So.2d 18; Schroeder v. Mounes, La.App., 52 So.2d 67.

      . Superior Industries, Inc. v. T. Smith Son, Inc., La.App., 187 So.2d 538; Emmco Insurance Co. v. Liberty Mutual Insurance Co., La.App., 138 So.2d 822; Equitable Fire and Marine Ins. Co. v. Allstate Ins. Co., La.App., 137 So.2d 366.


author: REDMANN, Judge.

text:
    PARISH OF JEFFERSON v. MARSH INVESTMENT CORPORATION.
    No. 11639.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 10, 1981.
    Rehearing Denied May 15, 1981.
    Writ Denied July 2,1981.
    Ferdinand M. Lob, Henry G. Sullivan, Asst. Parish Attys., Gretna, Charles M. La-nier, Danny G. Shaw, Phelps, Dunbar, Marks, Claverie & Sims, New Orleans, for plaintiff-appellant and appellee.
    Russell J. Schonekas, New Orleans, David L. Levy, Metairie, for defendant-appellee and appellant.
    Before SAMUEL, REDMANN and BOU-TALL, JJ.
   REDMANN, Judge.

The Parish of Jefferson sued to expropriate 78.6 acres of undeveloped rural property owned by Marsh Investment Corporation and leased to Jefferson Disposal Corporation for use in disposing of the Parish’s garbage. The Parish has been dumping sewage sludge on the property since constructing several sludge ponds on it in the early 1970’s, though the Parish had no entitlement under Disposal’s lease (or otherwise) to do so. The trial court refused expropriation for the 78.6 acres, but ruled that under the St. Julien doctrine the Parish had acquired a servitude on the 13 acres actually used for sludge and that Marsh’s claim for compensation for those 13 acres had prescribed. Both parties appeal. We reverse, granting expropriation.

Jefferson Parish, as a political subdivision of the State of Louisiana, has the power to expropriate needed property for public purposes, after paying just compensation to the owners. La. R.S. 19:2(1). Construction of sewage treatment facilities is a public purpose. While an attempt to purchase needed property must precede expropriation, Louisiana. Power & Light Co. v. Lasseigne, 1970, 256 La. 919, 240 So.2d 707, vain and useless further bargaining is not required, City of Shreveport v. Kansas City S. & G. Ry. Co., 1936, 184 La. 473, 166 So. 471. The record shows no agreement could have been reached in this case.

The serious issue is whether the property is necessary. However, the extent and location of the property to be expropriated are within the expropriating authority’s sound discretion, the good faith exercise of which the courts may not disturb. Parish of Iberia v. Cook, 1959, 283 La. 697, 116 So.2d 491.

The trial judge denied the Parish’s petition because the Parish purchased the nearby Kelven tract during the pendency of this suit. That tract could serve for the proposed treatment plant. The Parish wishes, however, to use the Kelven tract for sanitary landfill and to construct the treatment plant on the Marsh tract. The present treatment by dumping sludge into permeable ponds must stop because of Louisiana Department of Health and Human Resources and federal Environmental Protection Agency requirements. The ponds must be cleaned up, and the site will remain environmentally foul for some time. A different site for the treatment plant would similarly become fouled. We cannot say that a plan which will not create an additional environmental problem constitutes a bad faith exercise of the expropriating agency’s discretion.

Defendant also argues bad faith is shown by the Parish’s several amendments to its petition, which all reduced the amount of land sought. Defendant would infer that the Parish sought to take all its land, far in excess of need, as a punitive act against defendant. The evidence is, however, that original petitions were drawn by the Parish Attorney’s office before consultation with Parish engineers, and the final petition does represent an effort to expropriate only the land necessary. While this may question efficiency, it does not show bad faith.

As the Parish intends to construct permanent works to use indefinitely, it may expropriate the full ownership and may not be limited to a servitude, Greater Baton Rouge Port Comm. v. Watson, 1953, 224 La. 136, 68 So.2d 901.

We therefore need not consider the trial court’s finding of a servitude under the “St. Julien doctrine” or application of the special two-year prescriptive period of R.S. 19:2.1B. See, however, Lake, Inc. v. Louisiana Power & Light Co., La.1976, 330 So.2d 914, overruling in part St. Julien v. Morgan’s La. R.R. & S.S. Co., 1887, 38 La.Ann. 1062, and La.R.S. 19:14, added by Acts 1976 No. 504 § I-

In respect to proper compensation, our evaluation of the expert testimony leads us to adopt the value of $195,000 (approximately $2,500 an acre) plus $3,335 severance damages, all as testified by appraiser Ea-son. Eason was one of two appraisers presented by the Parish, and his figures were higher than the other’s. Total compensation should therefore be $198,335, but an offset exists.

During the negotiations and trial of this expropriation, Parish and Marsh made two contracts. The first, dated March 28, 1979, allowed Parish to dump sludge for six months for $30,000 a month to be credited against either trespass damages awarded in a pending federal court suit or against expropriation compensation in this suit. We therefore allow a credit of $180,000 on account of this first contract.

The second contract, in June 1979, increased the dumping price to $4,000 a day with no credit against judicial awards. This last contract ran for 58 days, and Parish paid $232,000 on it. (Thereafter Parish obtained the first of a series of preliminary injunctions forbidding Marsh’s interference with Parish’s dumping.) The contracts had been made, the Parish argues, because Marsh threatened to prevent further dumping by using armed guards against the Parish, and because not dumping would have caused health problems in Jefferson.

The Parish now attacks the contracts as void because consent was given under duress. But it is not every degree of violence or threat that will void a contract, C.C.1851, and the threat by Marsh could hardly affect the Parish, with the force available to it by way of the injunction it finally sought and obtained. We therefore cannot find this second contract void, and we therefore allow the Parish a credit of only $180,000 against the compensation awarded.

The judgments appealed from are reversed, and there is now judgment decreeing expropriated to the Parish the following:

A certain piece or portion of ground situated in the State of Louisiana, Parish of Jefferson, and being a portion of Section 4, Township 13 South, Range 22 East, and more fully described as follows:
Commence at a railroad rail marking the intersection of the northerly right of way line of U.S. Highway 90 and the line common to Sections 30 and 38, T13S, R22E. Measure thence N 86°37'20" W along the northerly right of way line of U.S. Highway 90 a distance of 544.71 feet to a point on the easterly right of way line of South Kenner Avenue a distance of 6,080.06 feet to the point of beginning. Thence from the point of beginning continue N 3°20'40" E along the easterly right of way line of South Kenner Avenue a distance of 1155.87 feet to a point; thence in a northerly direction, along the are of a curve to the right having a radius of 5699.58 feet, along said right of way line, a distance of 1264.70 feet to a point; thence S 64°08'20" E a distance of 1850.23 feet to a point; thence S 25°51'40" W a distance of 2280.00 feet to a point; thence N 64°08'20" W a distance of 1056.31 feet to the point of beginning, said parcel containing 78.598 acres, more or less.

and there is further judgment against the Parish of Jefferson and in favor of Marsh for $198,335 less a credit of $180,000 for a net of $18,335 with interest from date of judgment until paid and all costs.


author: CHEHARDY, Judge.

text:
    The NATIONAL COMPANIES v. Robert D. BRIDGEWATER and Verna Craven Bridgewater et al.
    No. 11727.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 10, 1981.
    Rehearing Denied May 15, 1981.

      Kenneth C. Scullin, in pro. per.
    Gilbert R. Buras, Jr., New Orleans, for plaintiff-appellant.
    Singer, Hutner, Levine, Seeman & Stuart, Ewell E. Eagan, Jr., Gerald F. Slat-tery, Jr., New Orleans, for defendants-ap-pellees.
    Before GARRISON, CHEHARDY and KLIEBERT, JJ.
   CHEHARDY, Judge.

Plaintiff, The National Companies (National), appeals a summary judgment of the trial court in favor of defendants Robert D. Bridgewater and Verna Craven Bridgewa-ter, et al, dismissing the plaintiff’s principal demand and declaring that Robert D. Bridgewater and his partner, Edward B. Boettner, are the rightful owners of one “cotton compress,” which was the subject of the legal action in the present ease.

The record reveals that on February 9, 1979 the subject cotton compress was transferred by The National Companies and Gulf Coast Industrial Properties Distribution Centers (Distribution Centers) to The National Companies by authentic act, which reads in part:

“This grant, transfer and delivery is made for and in consideration of the obligation of The National Companies to remove the above described property from the premises and The National Companies does hereby agree to cause the removal of the said property from the premises within sixty (60) days of written notice by Robert D. Bridgewater; and, in default whereof, The National Companies shall forfeit all of its right, title and interest in and to said property, which property shall revert to the ownership of Robert D. Bridgewater and Edward B. Boettner.

The above contract was signed by Kenneth C. Scullin and Robert D. Bridgewater.

Pursuant to the above agreement, Scullin was notified by a letter dated November 9, 1979, and signed by Bridgewater, that he should cause the removal of the cotton compress from the subject premises within 60 days of that notice.

On January 10, 1980, National filed suit against Bridgewater claiming that it was impossible for it to remove the cotton compress without a voluntary arrangement with Bridgewater and Boettner (who purchased Scullin’s interest in the property on which the compress sits on October 3, 1979) because if removed it could cause serious and extensive damage to the existing slab and foundation and/or walls. Plaintiff also claimed that its attempt to negotiate an agreement for removal of the cotton compress was without success. The petition also asked the court to restrain the defendants from subjecting its property to a mortgage and to order defendants to permit removal of the property from its premises.

On January 15, 1980, defendants filed a petition in reconvention for temporary restraining order, preliminary injunction and permanent injunction, asking the court to declare Bridgewater and Boettner the owners of the cotton compress and preventing Scullin or any other agent of National from entering the property. The petition further alleged that it was necessary for the defendants to reduce the cotton compress to scrap iron by use of a welding torch because delay in removal would delay construction activities planned for the site. The last line of defendants’ petition requests, “In the alternative, summary judgment on the main demand be entered against The National Companies and in Bridgewater’s favor decreeing that Bridgewater and Boett-ner are the owners of the compress.”

On January 28, 1980, defendants filed an answer to the original petition and on the same day there was a hearing in the trial court to show cause why the temporary restraining order, granted by the court on January 15, 1980 against National, should not be extended to a preliminary injunction to be effective during the pendency of the proceedings.

At this hearing in the district court it was the testimony of Bridgewater that the cotton press was a quarter of a million pound piece of steel that was formerly used to compress cotton into small bales; he also testified that he estimated that dismantling the machine piece by piece would take as many as six weeks. He also added he had never been contacted by Scullin regarding removal of the press and that he was never asked by that party for information in relation to removal of the press.

Edward Boettner, Bridgewater’s partner, said that it was the assumption between Distribution Centers and their contractor that the press would be removed at the time of commencement of construction which was then imminent. Boettner stated he told Scullin he could have full cooperation from Distribution Centers as long as he could remove the press by the deadline and that he even discussed the proposed plans for disassembly and removal with Scullin’s contractor. He emphasized that he had not given National any extensions of time nor had he authorized anyone else to do so. He said that he communicated with Scullin on a regular basis and at no time before the first week in January of 1980 did Scullin communicate any intentions to follow through and remove the press.

Stephen Dwyer, the attorney for the Bo-ettner-Bridgewater project, said he never granted to Scullin an extension of time on the removal period nor did he instruct him to ignore the deadline, in spite of a mail-gram introduced and written by Scullin supposedly “confirming” that such a statement had been made to him by Dwyer. Other mailgrams were introduced in which Dwyer had suggested that Scullin have his moving contractor contact him, asked for a definite date for removal and dismantling, and emphasized that Scullin had had and continued to have authority to enter the property for removal of the compress. Dwyer added, however, that he was never contacted by Scullin in response to these statements.

Grant J. Bultman, project manager of construction to take place at the site of the cotton press, said he discussed removal of the press with Scullin’s contractor, who estimated it would take 10 days or two weeks. He said the conversation took place approximately two weeks before the January 28, 1980 hearing and that removal of the press at the time of that conversation would not have impeded construction progress. He also said he did not ever impede or prevent anyone from National from coming on the property for that purpose.

A hearing on the defendants’ motion for summary judgment took place in the district court on February 5, 1980. Presented to the court by National was an authentic act, dated December 13, 1979, which purported to be-a sale by which National sold the subject cotton press to one “Saint German of Alaska Eastern Orthodox Catholic Church,” located at 140 Main Street, Sctauket, New York, in consideration of the price of $1,000,000. The act of sale was signed by Scullin and one Irving Novick, who was described as the church’s agent. The trial court also had before it an affidavit by Scullin insisting that he had been granted an extension of time by Dwyer, and copies of the mailgrams which issued between the parties.

We can find no merit in National’s argument, on appeal, that the church was an indispensable party to the action in the trial court.

LSA-C.C.P. art. 641 states:

“Indispensable parties to an action are those whose interests in the subject matter are so interrelated, and would be so directly affected by the judgment, that a complete and equitable adjudication of the controversy cannot be made unless they are joined in the action.
“No adjudication of an action can be made unless all indispensable parties are joined therein.”

In the case of Lilliedahl & Mitchel v. Avoyelles Trust & Sav., 352 So.2d 781 (La. App. 3d Cir. 1977), the court said at page 786:

“ * * * A party is indispensable only when his absence necessarily would result in an impairment of substantial rights. State, Department of Highways v. Lamar Advertising Company of Louisiana, 279 So.2d 671 (La.1973). Defendant has failed to show how these proceedings would necessarily impair the rights of Lilliedahl’s succession.”

Additionally, regarding this issue, the court said in State, Dept. of Hwys. v. Lamar Adv. Co. of La., Inc., 279 So.2d 671, 677 (La.1973):

“We therefore conclude that parties should be deemed indispensable only when that result is absolutely necessary to protect substantial rights. A close factual analysis of the cases decided to date reveals that very few absent parties are absolutely indispensable to the litigation before the court. The court, by the shaping of its decree, may be able to avoid any possibility of prejudice to the rights of an absent party and still do justice to the parties before the court.”

In the present case, the nature of the cotton press must also be considered in deciding whether the church was an indispensable party to the present action.

LSA-C.C. art. 466 states:

“Things permanently attached to a building or other construction, such as plumbing, heating, cooling, electrical or other installations, are its component parts.
“Things are considered permanently attached if they cannot be removed without substantial damage to themselves or to the immovable to which' they are attached.”

Since this law became effective on January 1, 1979, and the transfer between Distribution Centers and National occurred on February 9, 1979 (although there is reference in the act of transfer that it is a ratification of an April 3, 1978 transfer to National), we hold that the above article is applicable to the status of the cotton press at the time of the transfer. The evidence establishes that the defendants’ property would be damaged by removal of the press. Considering the nature of the press and its attachment to the property, we find that the press was part of the immovable prior to any attempted deimmobilization transfer from Distribution Centers to National.

In this regard, LSA-C.C. art. 468, a codification of rules adopted by the courts, also states:

“Component parts of an immovable so damaged or deteriorated that they can no longer serve the use of lands or buildings are deimmobilized.
“The owner may deimmobilize the component parts of an immovable by an act translative of ownership and delivery to acquirers in good faith.
“In the absence of rights of third persons, the owner may deimmobilize things by detachment or removal.”

The case of Bon Air Planting Co. v. Barringer, 76 So. 234 (La.1917), addressed itself to the issue of the rights of third parties when an immovable may be changed to the status of a movable, at page 235:

“The decisions of this court and the unanimous opinion of the French Commentators are to the effect that an immovable by destination, sold in good faith and removed from the realty to which it was attached, again becomes movable. See Bank v. Knapp, 22 La.Ann. 117; Weil v. Lapeyre, 38 La.Ann. 303. It would seem, then, that to mobilize a thing which has become immovable by destination, it is a necessary condition that the thing itself should in point of fact be removed from the realty. Laurent, in his treatise above quoted, vol. 30, No. 233, says:
‘Vainly may the purchaser say that the sale alone mobilizes an immovable by destination; that is true between the parties, but it is not true so far as concerns the mortgage creditor, who has a real right in the thing, a right which belongs to him as long as the thing is attached to the soil. But the sale does not detach it from the soil, it [the sale] only mobilizes the thing between the parties, and the mortgage creditor is the stranger to this agreement. Even the good or bad faith of the parties is of no effect unless the thing has been placed in the possession of the vendee.’
“From these premises it follows also that an immovable by destination may not be mobilized and returned to its status as a movable, solely by the will or caprice of the owner, but that it must be separated and detached from the realty.
“It is true that in the case at bar, the sale was of the realty and not of the immovable by destination, but the effect is the same as if the sale had been of the immovable by destination and not of the realty, for the change of ownership of the one and not of the other merely changed one of the conditions necessary to immobilize by destination, that of ownership of both the realty and the thing in the same person. It did not alter the other condition, under which the thing remained upon and attached to the realty for its service and improvement.”

In the present case no actual delivery was perfected from Distribution Centers to National after the February 9,1979 transfer, a factor which, if present, would have completed transfer of title of the press to National as to third parties, in this case the church. Since the actual delivery was never accomplished, it was not a movable susceptible to a title transfer from National to a third party in the December 13, 1979 purported sale to the church.

We hold, therefore, that the church cannot be considered an indispensable party to the present suit between Bridgewater and National regarding ownership of the cotton press itself; and adjudication by the court of that issue does not prejudice any action the church might have against National in regard to its failure to perform on the contract executed with that entity.

We further find no basis for plaintiff’s argument that the defendants’ motion for summary judgment on the plaintiff’s main demand was premature. LSA-C.C.P. art. 966 states:

“The plaintiff or defendant in the principal or any incidental action, with or without supporting affidavits, may move for a summary judgment in his favor for all or part of the relief for which he has prayed. The plaintiff’s motion may be made at any time after the answer has been filed. The defendant’s motion may he made at any time.” (Emphasis ours.)

This court has previously addressed itself to this identical issue in Jacobs v. Beck, 141 So.2d 920, 921-922 (La.App. 4th Cir. 1962):

“Liberty Mutual contends that the case presents no issue of fact; that, accepting all of the allegations of the petition as true, the injury sued upon comes within the above quoted malpractice exclusion. Plaintiffs contend: (1) that the motion for summary judgment was improper and premature for the reason that the same cannot be filed by a defendant as an initial pleading; and (2) considering the petition in the light of the policy there is a genuine issue of material fact.
“Plaintiffs’ first contention is without merit and is answered by LSA-Code of Civil Procedure Article 966 relative to the motion and procedure for summary judgment. After providing that the plaintiff may make the motion at any time after answer has been filed, it further provides that defendant’s motion ‘ * * * may be made at any time.’ ”

Since the summary judgment was granted only on the plaintiff’s main demand, dismissing his case and declaring the defendants owners of the cotton press, as authorized by LSA-C.C.P. art. 1915, this court holds that the filing of that motion as part of the defendants’ initial pleadings was not premature.

Neither can we find merit in plaintiff’s further allegation that the granting of summary judgment was not appropriate. LSA-C.C.P. art. 966 also states:

“The motion for summary judgment shall be served at least ten days before the time specified for the hearing. The adverse party may serve opposing affidavits prior to the day of the hearing. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.”

In explanation of the above article, this court stated in Metropolitan Bank of Jefferson v. Summers, 257 So.2d 179 (La.App. 4th Cir. 1972), at pages 180-181:

“It is well settled in Louisiana jurisprudence that a summary judgment will not lie where a genuine material issue of fact exists. Glass v. Vista Shores Club, 221 So.2d 304 (La.App. 4th Cir., 1969); Joiner v. Lenee, 213 So.2d 136 (La.App. 3rd Cir., 1968), writ refused, 252 La. 960, 215 So.2d 129; Roy & Roy v. Riddle, 187 So.2d 492 (La.App. 3rd Cir., 1966), writ refused, 249 La. 724, 190 So.2d 236; Acadia-Vermilion Rice Irr. Co. v. Broussard, 185 So.2d 908 (La.App. 3rd Cir., 1966).
“However, the jurisprudence equally asserts the purpose of the summary judgment procedure is ‘to minimize and discourage the judicial urging of well pleaded but frivolous claims’. Perry v. Reliance Insurance Co. of Philadelphia, 157 So.2d 903, at 906 (La.App. 1st Cir., 1963). The court in Perry also quoted, at page 908, from Duplechain v. Houston Fire & Casualty Ins. Co., 155 So.2d 459 (La.App. 3rd Cir., 1963), that the defendant in a motion for summary judgment is ‘required to show that there is a real, not formal, controversy as to a material fact’.
“A summary judgment may be rendered if a scrutiny of the facts shows that issues presented need not be tried because they are so patently insubstantial as to present no genuine issues. A mere formal allegation without substance will not preclude the rendering of a summary judgment. Brown v. B & G Crane Service, Inc., 172 So.2d 708 (La.App. 4th Cir., 1965), appeal after remand, 194 So.2d 746, writ refused, 250 La. 534 and 535, 197 So.2d 79 and 80; Wilkinson v. Husser, 154 So.2d 490 (La.App. 1st Cir., 1963), writ refused, 245 La. 60, 156 So.2d 603.”

Plaintiff’s assertion of the sale of the press transacted between himself and the church is an issue irrelevant to the summary judgment rendered in the present case because title to the press itself could not have passed in that sale from National to the church, who was not a party to the original transfer between Distribution Centers and National. The issue of whether National had in fact been granted an extension by Dwyer, who plaintiff alleged was authorized to act as an agent for Bridgewa-ter in that respect, had been denied by Bridgewater, Boettner and Dwyer in their testimony at the hearing on the restraining order. The district court judge was free to consider this testimony in his granting of summary judgment. The record in its entirety leads us to conclude, as did the trial judge, that there was no issue of material fact sufficient to require a trial on the merits and that, therefore, defendants were entitled to judgment in their favor as a matter of law.

Accordingly the district court judgment is affirmed in all respects.

AFFIRMED.

      . The National Companies is a Mississippi partnership, which has Kenneth C. Scullin as its general partner.

      . The National Companies and Gulf Coast Industrial Properties Distribution Centers is a Louisiana partnership in commendum comprised of two other partnerships, The National Companies, and Gulf Coast Industrial Properties (a Mississippi partnership of which Bridge-water is the general partner).

      . The same result can be reached based on Article 468 of the Louisiana Civil Code of 1870, which states that things that the owner of a tract of land or a building has placed upon it for its service and improvement are “immova-bles by destination.”


author: KLIEBERT, Judge.

text:
    CAR PARTS, INC. v. Richard BORDELON, d/b/a B & B Auto Parts.
    No. 11756.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 10, 1981.
    Rehearing Denied May 15, 1981.
    Writ Denied July 2, 1981.

      Morrison & Biri, Ronald W. Morrison, Me-tairie, for plaintiff-appellant.
    Tonry & Mumphrey, Richard A. Tonry, Chalmette, for defendant-appellee.
    Before CHEHARDY, KLIEBERT and HUGHES, JJ.
   KLIEBERT, Judge.

Car Parts, Inc., plaintiff-appellant, established a business relationship with B & B Auto Parts, defendant-appellee, in 1973. Basically, Car Parts, Inc. furnished car parts, etc. to B & B Auto Parts for retail sale. Sometime in 1978, Car Parts started slowing down its wholesale auto parts business. Finally, in November, 1978, Car Parts ceased doing business. Thereafter, it brought this suit to collect an outstanding balance of $589.05 from B & B Auto Parts. B & B Auto Parts refused to make payment, but offered to return defective warranty merchandise which it had re-acquired from its customers and new merchandise still in the original boxes. Car Parts refused to accept the merchandise and filed this suit. After trial on the merits, the trial court dismissed the plaintiffs suit. It brought this appeal.

The resolution of the dispute turns on the acceptance or rejection of the defendant’s contention as to the terms and conditions of an agreement between the litigants. The defendant contends that throughout the five years he did business with the plaintiff he could and did return merchandise for credit for either of three reasons (1) if defective (2) for semi-annual stock adjustments and (3) non-saleable or slow moving items. According to his testimony, Borde-lon customarily did business by exposing parts on a shelf or display case. When a customer purchased an item later found to be defective, he would refund the purchase price to the customer and return the merchandise to the wholesaler to receive credit for same. If the parts exposed for sale became obsolete or were not saleable, he would return them to the plaintiff for credit. His wife appeared and corroborated his testimony.

The plaintiff is a corporation. Its president, Mr. Grundmeyer, and its vice-president, Mr. Hallenus, appeared and testified. Mr. Grundmeyer had been the active manager of Car Parts, Inc. from the time it started doing business with Mr. Bordelon to August 1975. Mr. Hallenus became the active manager after August 1975. They denied there was an agreement under which Bordelon could return slow moving or unsaleable merchandise.

From the record, it is apparent the crux of the case rests on credibility — that is, whose testimony the trial judge found to be more creditable. After having heard the testimony and observing the witnesses, the trial judge dismissed the plaintiff’s suit. Apparently, therefore, he accepted defendant’s version of the agreement rather than that of the plaintiff.

Credibility of witnesses is particularly a matter over which the trier of fact has much discretion. Dupre v. South Central Bell Tel. Co., 318 So.2d 145 (La.App. 3d Cir. 1975); Le Blanc v. Cordaro, 378 So.2d 1027 (La.App. 2d Cir. 1979). A trial court’s judgment in regard to credibility of witnesses will not be disturbed unless clearly erroneous. McMillan v. Travelers Insurance Company, 371 So.2d 1213 (La.App. 1st Cir. 1979). We cannot say the trial judge’s findings were erroneous.

In rendering his judgment, the District Judge failed to order the merchandise originally tendered to the plaintiff returned. Counsel for the defendant in argument stated it was the intent and desire of the defendant to return the merchandise. Accordingly, the judgment of the district court is amended so as to order the defendant to- return to the plaintiff the merchandise originally tendered to him and as so amended, is affirmed.

AMENDED AND AFFIRMED.


author: CHEHARDY, Judge. GULOTTA and STOULIG, Judges,

text:
    Tony FERRAND v. KAISER ALUMINUM & CHEMICAL CORPORATION.
    No. 11948.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 10, 1981.
    Rehearing Denied May 15, 1981.
    Heisler & Wysocki, Vincent Paciera, Jr., New Orleans, for plaintiff-appellant.
    Lemle, Kelleher, Kohlmeyer & Matthews, Paul B. Deal, New Orleans, for defendant-appellee.
    Before GULOTTA, BOUTALL, GARRISON, CHEHARDY and STOULIG, JJ.
   CHEHARDY, Judge.

Plaintiff, Tony Ferrand, appeals from a trial court decision in favor of the defendant, Kaiser Aluminum & Chemical Corporation (Kaiser), dismissing the plaintiff’s suit for workmen’s compensation benefits at his costs.

Ferrand testified at trial that he began working for Kaiser on June 15, 1976 as a laborer in that company’s “pot room”, which was described by him as a very humid, hot and dusty area where chemicals were mixed. He added the company provided workers in that locale with salt tablets due to the temperatures sustained in the room. The plaintiff stated his employment with Kaiser was terminated in March of 1977.

Ferrand said at trial he first saw a physician, Dr. William Ogden, II, in October of 1976 regarding boils and cysts he had developed on his scalp. He also stated that after he stopped working for Kaiser in March of 1977, due to his scalp condition, he was then paid an additional seven weeks of income benefits. At the end of that period, although he was released by his attending physician for work other than in the pot room, he was told by Kaiser no job other than working in the pot room was available for him because of his lack of seniority.

Ferrand also testified that after his termination he was not employed again until November of 1978, when he became a parking attendant for a hotel. He was still working in this position at the date of trial on March 14, 1979.

Dr. David Bradley, who was accepted by the court as an expert in the field of dermatology, stated he first saw Ferrand on May 12, 1977, and his diagnosis was that he had folliculitis, an inflammation of the hair fol-licules or an infection of the scalp, manifested by inflammation, pus formation and pimples. Dr. Bradley said he prescribed a selenium sulfide shampoo and antibiotics to be taken by mouth, supplemented by antibiotic injections.

Dr. Bradley also stated that although it is not known why a person develops folliculi-tis, it is known that certain factors, such as excessive sweating and working in a very warm area, do contribute to the condition. He added that the last time he saw plaintiff, on January 26, 1979, Ferrand still had the condition and that it was a persistent one, without very much permanent response to the treatment administered over the two prior years. His opinion was that he expected the problem, which he described as chronic, to continue “for some time longer”, and he added that Ferrand is employable except in extremely hot environments.

Dr. Edward Thornhill, accepted by the court as an expert in the field of internal medicine, said he first saw Ferrand on March 22, 1977. He diagnosed the plaintiff as having a recurrence of folliculitis as well as muscle contraction headaches as a result of the scalp infection. His opinion was that the cysts were a direct result of excessive heat and atmospheric moisture. He also stated he prescribed pain medication and antibiotics and he instructed the plaintiff to stay out of the pot room. Dr. Thornhill also opined that had Ferrand not been working in an area of high temperature and humidity, the chances of his developing folliculitis would have been very small.

Ferrand testified he had a tenth grade education and that prior to his employment at Kaiser he had worked with a construction crew building wharves, had been a lifeguard and had worked at the Rivergate setting up for meetings and banquets. Fer-rand also said after his termination he began applying for jobs such as bellman and porter at various hotels so he could work inside and not become too overheated. He added he had informed these prospective employers that he was on medication and could not work in high heat areas; he was not offered a job until November of 1978.

In the case of LeBlanc v. Commercial Union Assur. Co., 349 So.2d 1283, 1288 (La. App. 1st Cir. 1977), the court said:

“Section 1221(3), above, as amended in 1975, defines partial disability as partial disability to perform the duties in which the employee was customarily engaged when injured or duties of the same or similar character, nature or description for which he was fitted by education, training and experience. We interpret the definition of partial disability to mean that if an injured employee is unable to perform his usual or customary occupation, but can engage in some other gainful employment for which he is fitted by education, training or experience, he is only partially disabled.
“It appears the amended statutory definition of partial disability is substantially the same as total disability, as the latter term was judicially interpreted prior to the 1975 amendment. Under prior jurisprudence, an employee was considered totally disabled when he could not perform work of the same or similar description in which he was engaged when injured, notwithstanding his ability to earn the same or higher wages in a different line of endeavor. Wright v. National Surety Corp., 221 La. 486, 59 So.2d 695 (1952); Morgan v. American Bitumuls Co., 217 La. 968, 47 So.2d 739 (1950).
“Our jurisprudence is firmly established to the effect that our Workmen’s Compensation Law is to be liberally construed to the end that its coverage will be extended to injured workmen to relieve them of the crushing economic burden of work-connected injuries by spreading such loss in channels of commerce and industry. Danielsen v. Security Van Lines, Inc., 245 La. 450, 158 So.2d 609 (1963); Broussard v. Beebe’s Bakery, Inc., 254 So.2d 284 (La.App. 4th Cir. 1971).
“Also pertinent herein is the rule that an injured workman is not required to work in appreciable pain or under circumstances which present a material increase in hazards to his health or welfare. Lawless v. Steel Erectors, Inc., 254 La. 37, 222 So.2d 849 (1969); Brannon v. Zurich General Accident & Liability Ins. Co., 224 La. 161, 69 So.2d 1 (1953).
“Applying the foregoing rules of interpretation herein, we find the present definition of partial disability includes a situation wherein an employee, though physically able to resume his former employment, and although physically capable of performing other gainful work for which he is fitted by education, training or experience, is otherwise temporarily unable to resume his former employment because it involves working conditions hazardous to his health or welfare.”

The court also said in Parks v. Insurance Co. of North America, 340 So.2d 276 (La. 1976), at pages 280-281:

“In order to recover benefits under the Louisiana Workmen’s Compensation Law, an employee must establish that he received a personal injury by accident arising out of and in the course of his employment. Disability is compensable only if it results from a work-related accident. La.R.S. 23:1031; Gorbach v. Prager, Inc., 310 So.2d 604 (La.1975); Prim v. City of Shreveport, 297 So.2d 421 (La.1974). Hence, the first issue presented for our consideration is whether or not an accidental injury occurred.
“The terms ‘accident’ and ‘injury’ for the purpose of the workmen’s compensation statute are defined in La.R.S. 23:1021 as follows:
(1) “Accident” means an unexpected or unforeseen event happening suddenly or violently, with or without human fault and producing at the time objective symptoms of an injury.
(7) “Injury” and “Personal Injuries” includes only injuries by violence to the physical structure of the body and such disease and infections as naturally result therefrom. These terms shall in no case be construed to include any other form of disease or derangement, howsoever caused or contracted.
“ * * * We have held that extraordinary physical stress and strain is not essential to the definition of disabling accident: when the performance of the usual and customary duties of a workman cause or contribute to a physical breakdown, the statutory requirements for an accidental injury are present. Ferguson v. HDE, Inc., 270 So.2d 867 (La.1972); Bertrand v. Coal Operators Casualty Co., 253 La. 1115, 221 So.2d 816 (1968) [sic]. More particularly, we have recognized that the fact that a condition may commonly be referred to as an illness or disease does not thereby preclude its classification as an accident. Jennings v. Louisiana Southern Life Insurance Co., 290 So.2d 811 (La.1974). In Jennings, we noted that among other conditions frequently termed as diseases, heart disease, stroke, heat stroke, herpes zoster (shingles), cancer and ‘bends’ have all been treated as compensable accidents within the contemplation of the Workmen’s Compensation Act. * * *
“ * * * Our jurisprudence demonstrates that it is not necessary that an accident be caused by extraordinary activities of an employee or that said activities be the exclusive cause of an accidental injury. It is only necessary that the accidental injury be caused or precipitat ed by the usual and customary actions, exertion, or other factors directly connected with the employment. Roussel v. Colonial Sugars Co., 318 So.2d 37 (La. 1975). It is immaterial that the disability could have been brought on by causes other than a work-related trauma, if, in fact, trauma on the job which meets the standards of accidental injury is a disabling factor. Bertrand v. Coal Operators Casualty Co., 253 La. 1115, 221 So.2d 816 (1969). We have recently held, moreover, that an accident which aggravates or accelerates a pre-existing condition is com-pensable even where disability is not caused by a single or specific incident. Chism v. Kaiser Aluminum & Chemical Corp., 332 So.2d 784 (La.1976).”

In the present case this court finds the infection of folliculitis suffered by the plaintiff was certainly precipitated by the conditions under which he worked in the pot room at Kaiser, notwithstanding he probably had a predisposition to the disease. We find, moreover, that this condition is within the meaning of the word “injury” as it is used in the Workmen’s Compensation Act. We also find that since Ferrand is unable to perform work of the same or similar description in which he was engaged when injured, he must be considered partially disabled for the purpose of receiving workmen’s compensation benefits.

LSA-R.S. 23:1221 states in part:

“Compensation shall be paid under this Chapter in accordance with the following schedule of payments:
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(3) For injury producing partial disability of the employee to perform the duties in which he was customarily engaged when injured or duties of the same or similar character, nature, or description for which he was fitted by education, training, and experience, sixty-six and two-thirds per centum of the difference between the wages the employee was earning at the time of the injury and any lesser wages which the injured employee actually earns in any week thereafter in any gainful occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee, at the time of injury, was particularly fitted by reason of education, training, and experience, during the period of disability, but not beyond a maximum of four hundred weeks for such partial disability resulting from injury occurring on and after September 1, 1975, and on or before August 31, 1976; and not beyond a maximum of four hundred twenty-five weeks for such partial disability resulting from injury occurring on and after September 1, 1976, and on or before August 31, 1977 * * * the employer shall be entitled to a reduction of one full week of compensation against the maximum number of weeks for which compensation is payable under this subdivision (3) and for any week during which the employee is paid no compensation, because of the employee’s actual earnings during that week, the employer shall not be entitled to a reduction for that week against the maximum number of weeks for which compensation is payable under this subdivision (3), and in no event shall the total number of weeks of compensation for such partial disability under this subdivision (3) be increased beyond the maximum number of weeks stated in this subdivision (3).”

LSA-R.S. 23:1202 also reads in part:

“(1) The maximum compensation to be paid under this Chapter for injuries occurring on or after September 1, 1975, and on or before August 31,1976, shall be eighty-five dollars per week and the minimum compensation shall be twenty-five dollars per week; and for injuries occurring on or after September 1, 1976, and on or before August 31, 1977, the maximum weekly compensation to be paid under this chapter shall be ninety-five dollars per week and the minimum compensation shall be thirty dollars per week. For injuries occurring on or after September 1, 1977, the maximum weekly compensation to be paid under this Chapter shall be sixty-six and two-thirds per centum of the average weekly wage paid in all employment subject to the Louisiana Employment Security Law and the minimum compensation shall not be less than twenty per centum of such wage, said maximum and minimum to be computed to the nearest multiple of one dollar. In any case where the employee was receiving wages at a rate less than the applicable minimum compensation, the compensation shall be the employee’s ‘wages’.”

In view of the above provisions of the Workmen’s Compensation Act and in view of the fact the record establishes Ferrand was unemployed from his June 1, 1977 salary termination at Kaiser through October of 1978, we hold the plaintiff is entitled to the maximum benefits of $95 a week for that period of 69 weeks and four days.

Because the record also reveals that Fer-rand’s salary at the time of the March 14, 1979 trial was $2.40 an hour, plus an average of $30 a week in tips, totaling $126 per week, and his hourly pay at Kaiser at the time he was terminated was $6.36, or $254 per week, he is entitled to compensation benefits of $85.60 per week, representing 66%% of the difference between that amount he was earning at the time of his injury and the lesser wages which he was actually earning at the time of trial, this due and owing for 19 weeks and one day, comprising the period of his new employment, which began in November of 1978 and continued until the trial date.

We also hold the defendant (Kaiser) is indebted to the plaintiff for 66%% of the difference between any earnings he has had (since the trial date) and his prior earnings at Kaiser up to a maximum benefit of $95 a week for as long as his partial disability continues up to a maximum of 336 weeks and two days from the date of March 15, 1979.

LSA-R.S. 23:1203 states in part:

“In every case coming under this Chapter, the employer shall furnish all necessary medical, surgical and hospital services, and medicines, or any nonmedical treatment recognized by the laws of this state as legal.”

Dr. Bradley testified the total of his fees incurred by the plaintiff up to the trial date was $465. Plaintiff also presented, as part of his exhibits, an invoice establishing that fees for services rendered to him by Dr. Ogden totaled $165, and the charges of Dr. Dorsey Dysard, to whom Ferrand was referred by Dr. Thornhill, were $280. Bills for drugs introduced by Ferrand amounted to approximately $299. Accordingly, we also cast the defendant, Kaiser, in judgment to the plaintiff for the costs of all of the above medical services and drugs.

This court can find no basis for concluding the defendant was arbitrary and capricious in denying the plaintiff workmen’s compensation benefits and, therefore, the plaintiff’s request for penalties and attorney fees is denied.

For the reasons assigned, the judgment of the district court is reversed and rendered, defendant to pay all costs.

REVERSED AND RENDERED.

GULOTTA and STOULIG, JJ., dissent with written reasons.

GULOTTA and STOULIG, Judges,

dissenting.

We respectfully dissent.

We can find no basis in the record for reversing the judgment of the trial court dismissing plaintiff’s claim and therefore we dissent from the majority opinion.

Plaintiff, an unskilled laborer, was employed by the defendant on June 15, 1976. Lacking job seniority, under the union labor contract he was assigned the least sought after job of a “spare” in the pot room of defendant’s plant. Admittedly the ambient temperature of the pot room is extremely high and humid.

Some four months later, in October, 1976, plaintiff developed a scalp condition later diagnosed as folliculitis, an inflammation of the hair follicules accompanied by pustules or pimples. From this time through the termination of his employment on June 1, 1977, plaintiff was treated by physicians of his own choosing, Dr. William W. Odgen, II, a thoracic and vascular surgeon, Dr. Edward Thornhill, an internist, and Dr. Dorsey Dysart, a neurologist.

The direct medical testimony is that the cause of folliculitis is unknown but that it is aggravated by excessive heat and humidity. Both Drs. Thornhill and Ogden testified that plaintiff could return to work and was employable by defendant in areas other than the pot room or an environment of equally high temperature and humidity. In fact, plaintiff did return to work in March, 1978 and was assigned different duties for a couple of weeks.

At this point in time, plaintiff was advised by defendant’s personnel director that no other openings were available to him except the pot room because he lacked union seniority to displace anyone from a more compatible job. This latter fact was subsequently confirmed by a union hearing. On June 1, 1977, plaintiff’s services were terminated by the defendant for excessive absences.

In November, 1978, plaintiff secured a job with the Marriott Hotel as a parking attendant and is presently employed in this capacity. It is interesting to note that plaintiff received unemployment compensation benefits of $116.00 per week for a period of fifteen months and shortly after the expiration of these benefits he found employment with the Marriott Hotel.

We cannot agree with defendant’s contention that folliculitis is not an accident within the scope of the workmen’s compensation statute. As noted in Jennings v. Louisiana Southern Life Ins. Co., 290 So.2d 811 (La.1974), the mere fact that a condition may be commonly referred to as a disease or illness does not preclude its classification as an accident under the statute. During his illness plaintiff was paid benefits which actually exceeded the compensation benefits prescribed by the Workmen’s Compensation Act.

The evidence preponderates in favor of the conclusion that plaintiff has failed to sustain his right to additional workmen’s compensation benefits. It is beyond dispute that the folliculitis was not caused by plaintiff’s employment. Because the cause of folliculitis is unknown to medical science, it must be assumed that the expert testimony that excessive heat and humidity precipitated or aggravated the condition is based upon the fact that it manifested itself in this environment.

Plaintiff’s own medical experts were of the opinion that he could return to work in March, 1977 and adjudged him to be employable in June, 1977, except in a high degree of temperature and humidity associated with a pot room. Plaintiff is now and has been employed, admittedly at a lesser salary, which reduction in earning power is not attributable to any physical disability resulting from folliculitis or an aggravation of this condition. It is factually and medically established that folliculitis does not render a person unemployable or significantly affect his ability as a common laborer to secure employment in the open market. Dr. Edward Thornhill testified that “it is difficult to evaluate” if once a person develops folliculitis he becomes more susceptible to a recurrence of this condition because it depends upon “the bacteria of the skin.”

In Parks v. Insurance Co. of North America, 340 So.2d 276 (La.1976), a case somewhat factually analogous to this matter, the Supreme Court held:

“In the instant case, the medical testimony as well as that of plaintiff herself indicates that she was fully recovered from her acute illness and that she now enjoys a state of health comparable to that which existed prior to October 10, 1973. While it is obvious that plaintiff was temporarily totally disabled from that date until her acute illness terminated, she has now been returned to her pre-illness condition and there is no evidence that the acute bronchitis attack left any residual effects whatsoever. The inadviseability of plaintiff’s working in a garment factory is no greater now than it was when she commenced working for Garan in May, 1973. We are of the opinion that where, as here, plaintiff fails to demonstrate that her physical condition after an acute illness is altered in any respect, she cannot recover total and permanent disability payments. In short, plaintiff’s disability to work in a garment factory is not related to the accident which she sustained.”

Predicated upon the concept expressed in Parks, it must be concluded that plaintiff was temporarily totally disabled from October, 1976 to June, 1977, during which period he was paid more in wages and benefits than required under the compensation act. To paraphrase Parks, the inadviseability of plaintiff working in a pot room is no greater now than it was when he commenced working for the defendant. The obligation of the employer is to restore the employee to the same physical condition or state of health as existed at the time he suffered the disability. The defendant has fulfilled this obligation owed to the plaintiff.

For these reasons the judgment of the trial court should be affirmed.