text:
    Dennis C. SIBLEY v. Charles P. HAYDEN, et al. Diana S. DABADIE v. Charles P. HAYDEN, Superior Steel, Inc., Liberty Mutual Insurance Company, Geneva M. Crowe and Dennis Sibley. Diana S. DABADIE and State Farm Mutual Automobile Insurance Company v. SUPERIOR STEEL, INC. and Charles Hayden.
    Nos. 82 CA 0149 to 82 CA 0151.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.

      Martin A. Schott, Baton Rouge, for Dennis Sibley and Geneva Crowe Sibley.
    Dan Edward West, Baton Rouge, for Commercial Union Ins. Co. and Geneva Crowe Sibley.
    Stephen W. Glusman, Baton Rouge, for Superior Steel, Inc., Liberty Mut. Ins. Co.
    Thomas A. Lane, Baton Rouge, for Diana S. Dabadie and State Farm Mut. Ins. Co.
    Sam J. D’Amico, Baton Rouge, for Diana S. Dabadie.
    Before LOTTINGER, COLE and CARTER, JJ.
   COLE, Judge.

These consolidated cases involve a three-vehicle intersectional collision, the facts of which are set forth in detail in the reasons for judgment given by the trial court, hereto appended. Various suits were filed by and between the parties and the trial court found Geneva Crowe Sibley solely responsible for the accident. Judgment was rendered in favor of Ms. Dabadie and against Ms. Sibley for the sum of $18,-770.20. State Farm was awarded $3,918.01 as reimbursement for medical expenses advanced to their insured, Ms. Dabadie. Ms. Sibley and Ms. Dabadie both appealed as to liability and Ms. Dabadie complains of the quantum.

Concerning the issue of liability, we have examined the trial transcript and agree with the trial court the testimony is “hopelessly inconsistent.” In written reasons the court stated its decision was based upon the credibility of the witnesses. As a reviewing court we must, of course, give great weight to the conclusions of the trier of facts. We should not disturb reasonable evaluations of credibility and reasonable inferences of fact, even though other evaluations and inferences are as reasonable. Aleman v. Lionel F. Favret Co., Inc., 349 So.2d 262 (La.1977). Further, the credibility of the witness is best judged by the trier of fact and will not be disturbed unless clearly wrong. McMillan v. Travelers Ins. Co., 371 So.2d 1213 (La.App. 1st Cir.1979).

In reading the record we note Ms. Sibley and Mr. Hayden (the respective drivers of the first and second vehicles involved in the accident), had diametrically opposed versions of how the accident occurred. Ms. Sibley’s account of the accident was corroborated to some extent by the testimony of the driver of the third car, Ms. Dabadie. Likewise, Mr. Hayden’s version was supported somewhat by the testimony of the occupant of another car stopped at the intersection. The physical evidence was inconclusive. Therefore, the entire matter hinged necessarily upon the credibility of Ms. Sibley and Mr. Hayden.

During trial the court was impressed with Mr. Hayden’s veracity and remarked, “But Mr. Hayden was the most articulate and truthful witness I have seen on a case like this in my life.” It is argued the trial court’s evaluation of Mr. Hayden’s credibility is not reasonable in view of his history of drug usage and criminal activity. This is certainly a factor to be considered in assessing credibility. However, the trial court obviously did not feel the inferences to be drawn from Hayden’s background outweighed his candidness, demeanor, sincerity and the logic of his assertions. Not having heard and observed the witness, we cannot say the trial court was clearly wrong in its assessment of credibility. Finding nothing in the record to cause us to conclude the trial court was clearly wrong in accepting Mr. Hayden’s version of the accident, we will not disturb the trial court’s conclusions as to liability.

Concerning the quantum, the trial court found as a fact Ms. Dabadie suffered “some disability” from the accident and awarded $15,000 for her pain and suffering. Medical testimony revealed Ms. Dabadie had a pre-existing condition in her right knee which was aggravated to some extent by the accident. Her major complaint was difficulty with her right arm. She had undergone surgery to have a compressed nerve repaired but at the time of the trial stated she still had pain and was impaired in the use of her arm. Her orthopedic surgeon, Dr. Kenneth Cranor, testified by deposition he couldn’t state for sure the nerve problem had been caused by the trauma of the collision. Considering these factors we find the award of $15,000 to be well within the discretion of the trial court.

For these reasons and the additional written reasons of the trial court, hereto appended with approval, the judgments of the trial court are affirmed. Costs on appeal are to be paid by defendant-appellant, Geneva Crowe Sibley.

AFFIRMED.

APPENDIX

WRITTEN REASONS FOR JUDGMENT

The matter before the Court consists of three consolidated cases involving claims which arose from an automobile accident. The following is a brief outline of the facts which were presented to the Court. On the morning of December 21, 1979, Charles Hayden, an employee of Superior Steel, Inc., was driving a truck owned by his employer east on Greenwell Springs Road. Geneva Crowe (now Sibley) was driving a pickup truck owned by Dennis Sibley and was also eastbound on Greenwell Springs Road. Mrs. Diana Dabadie was in her vehicle on Monterrey Boulevard at the Green-well Springs Road intersection waiting for the traffic light to change to allow traffic from Monterrey Boulevard to enter Green-well Springs Road. As the vehicle driven by Hayden entered that intersection he began to execute a right turn onto Monterrey Blvd. Before that maneuver was completed the truck driven by Geneva Crowe struck the rear of the Superior Steel truck and trailer being driven by Hayden. As a result of that collision Hayden momentarily lost control of his vehicle and struck the Dabadie vehicle.

The accident report which was filed by Officer Gough reflected that the collision between the Crowe vehicle and the Superior Steel truck occurred at a point ten feet west of the west curb of Monterrey Boulevard and three feet south of the center line between the two eastbound lanes of Green-well Springs Road. The Superior Steel truck struck the Dabadie vehicle at a point fifty-eight feet south of the south curb of Greenwell Springs Road.

At the trial of this matter much testimony was adduced which was hopelessly inconsistent. For this reason the decision of this Court is based on the credibility which this Court assigned to each witness as the trial proceeded. The following paragraphs contain the findings of fact and conclusions reached by the Court after considering the evidence presented and the weight which was assigned to that evidence.

Charles Hayden had driven the Superior Steel truck for approximately eight months prior to the accident. He had executed the turn from Greenwell Springs Road to Monterrey Boulevard almost on a daily basis and as a result was very familiar with the intersection. Mr. Hayden testified that the total length of the rig he was driving was fifty feet. He further testified that he approached the intersection in the southernmost or outside eastbound lane of Green-well Springs Road and began his turn from that lane. The Court accepts that as fact. Mr. Hayden began his turn and had almost completed it when the Crowe vehicle struck his rig. This is borne out by the location of the impact between the Crowe vehicle and the Superior Steel truck and the point of impact of the Superior Steel truck and the Dabadie vehicle. It is also supported by the fact that the Crowe vehicle struck the Superior Steel truck in the rear. The testimony of Mr. Hayden is further supported by the testimony of Officer Gough, Mr. Bon-fanti, and Mr. Castjohn, three totally independent witnesses, the latter two of which were at the scene at the time of the accident. It is the opinion of this Court that Mr. Hayden was executing a proper turn and was not guilty of any negligence. Further, the Court finds that the sole cause of this accident was the failure of Geneva Crowe to maintain a proper lookout, to be attentive to the traffic around her, and to observe the slowing of the Superior Steel truck in preparation for the right turn.

In situations like this the case law in Louisiana is clear. A following motorist is presumed negligent if he collides with the rear of a leading vehicle. See Potts v. Hollier, 344 So.2d 70 (La.App. 4th Cir.1977) and Welsh [Welch] v. Thomas, -263 So.2d 427 (La.App. 1st Cir.1972). Also a motorist approaching a motor vehicle from the rear while both are travelling in the same direction is under a duty to exercise great care. Bums v. Evans Cooperage Co., [208 La. 406] 23 So.2d 165 (La.1945) and Coleman v. Van Dyke, 277 So.2d 709 (La.App. 2d Cir. 1973). Geneva Crowe was negligent in colliding with the rear of the Superior Steel truck and is therefore liable for the damages which were sustained by the other parties involved in the accident.

In the accident Diana Dabadie received injuries to her right arm and hand, suffered aggravation of a pre-existing knee injury and suffered a mild whiplash. She was hospitalized for surgery on her right arm and hand, which surgery has left her with scarring on that arm and hand. Mrs. Daba-die testified that she still suffers from a partial disability of the arm. From the evidence presented the Court finds as a fact that some disability does exist. It is the decision of the Court that Mrs. Dabadie is entitled to recover for her lost wages, medical expenses, property damage and physical pain and suffering. Her special damages were stipulated to be as follows: property damage, $3670.00; lost wages, $1000.00; and medical expenses, $3018.21. The Court will award these amounts to Mrs. Dabadie and, where her insurer State Farm has already made payment to her, will make award to State Farm. The Court also finds that for her physical pain and suffering Mrs. Dabadie is entitled to an award in the amount of $15,000.00.

The Court renders the following judgments:

(1) In suit number 230,654, entitled “Dennis Sibley and Geneva Crowe Sibley versus Charles P. Hayden, Superior Steel Company, and Liberty Mutual Insurance Company,” the Court finds in favor of the defendants and against the plaintiffs, dismissing plaintiff’s claims at their costs.

(2) In suit number 231,336, entitled “Diana S. Dabadie versus Charles P. Hayden, Superior Steel, Inc., Liberty Mutual Insurance Company, Geneva M. Crowe, and Dennis Sibley,” as to the claims of the plaintiff against defendants Hayden, Superior Steel, and Liberty Mutual Insurance, the Court finds in favor of these three defendants and against the plaintiff, dismissing plaintiff’s claims against these three defendants. As to plaintiff’s claims against defendants Geneva M. Crowe and Dennis Sibley, the Court finds in favor of the plaintiff and against Geneva M. Crowe and Dennis Sib-ley. Judgment is hereby rendered in favor of Diana Dabadie and against Geneva Crowe and Dennis Sibley in the amount of $18,770.20, with defendants to bear all costs of this suit.

(3)In suit number 231,432 entitled “Dianne [Diana] S. Dabadie and State Farm Mutual Automobile Insurance Company versus Superior Steel, Inc. and Charles Hayden,” the Court finds in favor of the defendants Superior Steel and Hayden and against the plaintiffs, dismissing plaintiffs’ claims against these two defendants. As to the claims of the plaintiff against Geneva Crowe Sibley and Commercial Union Insurance Company, who were made defendants in an amended petition, the Court finds in favor of the plaintiffs and against the defendants Geneva Crowe Sibley and Commercial Union Insurance. Therefore, judgment is hereby rendered in favor of plaintiffs Diana S. Dabadie and State Farm Mutual Automobile Insurance Company and against defendants Geneva Crowe Sibley and Commercial Union Insurance Company in the amounts of $348.01 for medical expenses and $3570.00 for property damage, with defendants to bear all costs of this suit.

Judgment will be signed accordingly.

Baton Rouge, Louisiana this 29 day of July. 1981.

/s/ Douglas M. Gonzales DOUGLAS M. GONZALES

JUDGE, 19TH JUDICIAL DISTRICT COURT DIVISION L

      . The driver of the first car, Geneva Crowe Sibley, and her husband Dennis Sibley, sued Charles Hayden (the driver of the second vehicle), Superior Steel, Inc. (his employer), and Liberty Mutual Insurance Co. (Superior’s insurer). The driver of the third vehicle, Diana Da-badie, sued Charles Hayden, Superior Steel, Liberty Mutual and Geneva and Dennis Sibley (Dennis Sibley was dismissed on a motion for summary judgment.) Diana Dabadie and her insurer, State Farm Mutual Automobile Insurance Co. sued Charles Hayden, Superior Steel, Liberty Mutual and Geneva Crowe Sibley and her insurer, Commercial Union Insurance to recover sums advanced by State Farm to Ms. Dabadie for property damage and medical expenses. (Ms. Dabadie was later deleted as a claimant, her property damage deductible being included in the suit first filed by her.)

      . Technical errors in the decretal portion of the reasons were corrected by the judgments signed by the trial judge.


source: Caselaw Access Project

author: EDWARDS, Judge.

license: Public Domain

text:
    EDWARD J. GAY PLANTING AND MANUFACTURING CO., LTD. v. BAYOU CABLE TELEVISION, INC.
    No. 82-CA-0152.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.

      Paul G. Borron, III, Borron, Delahaye, Edwards & Dore, Plaquemine, for plaintiff-appellee-Edward J. Gay Planting and Mfg. Co., Ltd.
    William C. Dupont, Dupont, Dupont & Dupont, Plaquemine, for defendant-appellant-Bayou Cable Television, Inc.
    Before EDWARDS, WATKINS and SHORTESS, JJ.
   EDWARDS, Judge.

This is an action by E.J. Gay Planting and Manufacturing Co., Ltd. for the issuance of a mandatory injunction compelling defendant-appellant, Bayou Cable Television, Inc., to remove its cable lines from plaintiff’s property. Bayou filed an exception of no right of action alleging that the cables lie within the highway right-of-way pursuant to a use permit granted by the Department of Highways. The trial court overruled this exception.

Bayou then answered and filed a recon-ventional demand seeking to expropriate a servitude across Gay’s property. To this demand, Gay filed two exceptions. One being a peremptory exception of no right of action which alleged that cable television companies do not have expropriation rights under Louisiana law. The other being a dilatory exception of prematurity alleging that if Bayou does have expropriation rights, the absence of prior good faith negotiations precludes an expropriation proceeding. The trial court sustained Gay’s peremptory exception of no right of action and dismissed defendant’s reconventional demand. The court further granted an injunction ordering the removal of Bayou’s cables and enjoining defendant from trespassing on Gay’s land. Bayou has devolu-tively appealed, asserting that cable television companies have expropriation rights under R.S. 45:781. We reverse the trial court’s judgment sustaining Gay’s peremptory exception and granting injunctive relief, and reinstate Bayou’s reconventional demand.

BACKGROUND FACTS

During May or June, 1981, Bayou entered into negotiations with Gay to obtain a servitude across Gay’s land for the purpose of laying television cables. These negotiations were not productive. Thereafter, Bayou applied to the Department of Highways for a permit to lay its cables within the highway right-of-way on Gay’s property. When Gay became aware of the subsequent installation of the cables within the right-of-way, this injunction suit was instituted for their removal.

RIGHT OF EXPROPRIATION

The issue presented on appeal is whether cable television companies, such as Bayou, have expropriation rights under Louisiana law. Under R.S. 45:781, expropriation rights are granted to “corporations .. . formed for the purpose of transmitting intelligence by telegraph or telephone or other system of transmitting intelligence.” It is apparent from the broad language of “transmitting intelligence” and “other system” that the statute was written with the intention to include future technological change in the area of communications. Although expropriation rights are to be strictly construed, the broad language of section 781 clearly accommodates technological advancements in communications such as cable television. In fact, the case of KAOK-CATV, Inc. v. Louisiana Cable T.V., Inc., 195 So.2d 297 (La.App. 3rd Cir.1967), recognized that cable television companies are included under section 781. Although KAOK did not involve expropriation, the court clearly held that cable television is within the language of “transmitting intelligence.”

Thus, we hold that R.S. 45:781 includes cable television companies which are thereby entitled to expropriation rights as provided in the statute.

EFFECT OF R.S. 48:381

The trial court, however, held that legislative amendments to R.S. 48:381 in 1978 implicitly overruled KAOK and excluded cable television companies from R.S. 45:781. We disagree with the trial court’s conclusion as to the effect of these amendments.

The relevant part of section 381 provides that the Department of Highways may issue use permits to cable companies for the installation of underground television cables along its right-of-way servitude. But these permits cannot be granted without the prior approval of the landowner. Permits granted under section 381 to telephone, electric and telegraph companies for similar uses, however, need no prior landowner approval. The trial court held that this “prior approval” requirement for cable companies distinguishes them from telephone and telegraph companies, who clearly have expropriation rights, and this distinction is evidence of legislative intent to deny expropriation rights to cable companies under R.S. 45:781.

This argument fails to recognize, however, the proper focus of section 381. This statute is merely concerned with the situations in which the Department of Highways can grant use permits for its rights-of-way, and to whom they can be granted. The statute is not concerned with the expropriation rights of cable, telephone or telegraph companies. If the legislature had intended to take expropriation rights away from cable television companies, the proper place for amendment would have been R.S. 45:781, not R.S. 48:381.

Moreover, this court in Koch v. Louisiana Power and Light Company, 298 So.2d 124 (La.App. 1st Cir.1974), cert. denied, 302 So.2d 17 (La.), held in 1974 that electric companies must also get prior landowner approval before obtaining a highway department use permit. The court imposed this requirement even though the language of section 381 allowed issuance of a permit to electric companies without prior landowner approval. As pointed out by the court, the Department of Highways, being itself merely the owner of a servitude, has no right or power to create another servitude upon the landowner’s property. Thus, prior consent of the owner is necessary. However, this in no way prevents an electric company from expropriating the servitude if landowner approval cannot be obtained. Therefore, the imposition of this requirements clearly has no effect on expropriation rights. See also Louisiana Power & Light Company v. Dileo, 79 So.2d 150 (La.App. 1st Cir.1955). Likewise, although the 1978 amendments to section 381 imposed the same landowner approval requirement on cable television companies, this does not affect their expropriation rights under R.S. 45:781.

DECREE

Accordingly, we hold that the provisions of R.S. 48:381 do not affect the rights granted cable television companies under R.S. 45:781. We reverse the trial court’s injunction and its judgment sustaining Gay’s exception of no right of action, and hold that cable television companies possess expropriation rights as provided for under R.S. 48:781. Bayou’s reconventional demand is reinstated, and the case is remanded for proceedings in accordance with this opinion. All costs of this appeal are to be borne by Gay, plaintiff-appellee.

REVERSED AND REMANDED.


author: SHORTESS, Judge.

text:
    Kenneth SOILEAU v. Leslie KNIGHTEN.
    No. 82 CA 0157.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.
    Leslie Knighten, pro se.
    Kenneth Soileau, pro se.
    Before EDWARDS, WATKINS and SHORTESS, JJ.
   SHORTESS, Judge.

Kenneth Soileau (plaintiff) filed a rule for eviction against Leslie Knighten (defendant) on December 30, 1981, in the City Court of Denham Springs and sought to have defendant evicted from a frame house located at 2310 Carolyn Avenue, Denham Springs, Louisiana, because of “non-compliance with lease agreement” . Attached to the rule was a copy of the notice to tenant to vacate the premises for non-compliance with the lease agreement, and unauthorized subletting. The marshall’s return indicates that on the same date he served a copy of the rule on the defendant by taping it to the front door.

The rule was made returnable for January 6, 1982, at 10:00 a.m. On January 4, defendant filed a motion for continuance, a bill of particulars, and a motion to sever.

On January 13, on plaintiff’s motion, the trial court dismissed his suit with prejudice and at his costs.

On January 19, defendant filed a pleading styled, “Answer and Defense For Rule on Eviction,” wherein he denied violating the terms of the lease. His defense, in narrative form and comprising almost five typewritten legal-sized sheets, explained his version of the disagreement and sought a ruling that he was not in violation of his written lease with plaintiff. Defendant appealed to this court and argues that had the matter not been dismissed ex parte, he would have been entitled to an evidentiary hearing and a decision from the trial court on the merits of his defense.

Eviction is a summary action and involves the single issue of whether the lessor is entitled to possession of the leased premises. Vicknair v. Watson-Pitchford, Inc., 348 So.2d 695 (La.App. 1st Cir.1977). Thus, the only issue before the trial court was whether or not plaintiff was entitled to possession of the premises. Prior to the date fixed for hearing on that issue, defendant vacated the premises. After the premises were vacated, plaintiff dismissed his eviction rule with prejudice pursuant to the provisions of LSA C.C.P. art. 1671.

When defendant vacated the premises before the date fixed for hearing, the only issue before the court became moot. While defendant may have had a valid defense to the eviction, he rendered the dispute moot when he vacated the premises, and his appeal must be dismissed at his costs.

APPEAL DISMISSED.

      . Both plaintiff and defendant have appeared pro se throughout these proceedings.

      . In a case decided on May 17, 1982, Greene v. Lindsey, - U.S. -, 102 S.Ct. 1874, 72 L.Ed.2d 249 (1982), the U.S. Supreme Court held that the mere posting of an eviction notice on an apartment door did not satisfy minimum standards of due process. Lack of notice is not the issue here because Knighten got notice, but he complains that the notice he got did not give him sufficient time to defend. That issue will not be addressed by us for reasons hereafter set forth.

      . The motion for continuance was apparently granted, because on January 8 an order was signed by the trial court setting the return date on the rule to evict for January 20, at 10:00 a.m.

      . On January 8, an amended petition on the rule to evict was filed by plaintiff in answer to defendant’s bill of particulars, and plaintiff alleged therein that defendant was in violation of the lease agreement by allowing Cathy Renee Keith to occupy the dwelling.

      . “Courts will not rule on questions of law which have become moot since their decree will serve no useful purpose and can give no practical relief... . This rule applies even in those cases which raise a constitutional question on the merits.” Jones v. Natchitoches Parish Police Jury, 371 So.2d 1243 (La.App. 3d Cir.1979), at 1244.


author: WATKINS, Judge.

text:
    Noah A. MELANCON v. John HARRELL.
    No. 82 CA 0160.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.

      Keith M. Whipple, Houma, for plaintiff and appellee.
    Anderson Council, Kenner, for defendant and appellant.
    Before EDWARDS, WATKINS and SHORTESS, JJ.
   WATKINS, Judge.

Following an intersectional two car collision the plaintiff, Noah A. Melancon, filed suit against the defendant, John Harrell, to recover $1,481.35 in property damage to his automobile. Both the plaintiff and the defendant claim the right of way by virtue of a green traffic light. Other than the parties to this lawsuit, there were no eyewitnesses to the actual collision. One witness who testified had been present at the scene of the accident, but did not witness the collision. After a trial on the merits, the trial court rendered judgment in favor of the plaintiff in the amount of $1,443.35. The defendant has appealed. We affirm.

The collision occurred on February 23, 1978, at the intersection of Van Avenue and Grand Calliou Road in the City of Houma. Noah A. Melancon was proceeding west on Van Avenue, attempting to turn left onto Grand Calliou Road, and John Harrell had just pulled out of a gas station and was driving north on Grand Calliou Road. Mr. Melancon testified that he stopped at a red light on Van Avenue to make a left turn onto Grand Calliou. After the traffic light had changed to green, Mr. Melancon proceeded into the intersection. The automobiles driven by Mr. Melancon and Mr. Harrell collided at the point where the eastbound lane of Van Avenue intersects with the center lane of Grand Calliou Road.

Mr. Harrell testified that he had just pulled out of a gas station onto Grand Cal-liou Road and was 30-40 feet away from the traffic signal when the light turned green. Mr. Harrell continued travelling on Grand Calliou into the intersection until the accident occurred.

Therefore, two parties are claiming to have entered the intersection on a favorable light, both at the same time. The signal light was functioning properly, so obviously both versions of the accident cannot be correct. One must have entered on a green light, and the other must have entered in disobedience of a red light.

The trial judge found as a matter of fact that Mr. Melancon had the right of way and that Mr. Harrell proceeded into the intersection in violation of the traffic light. Judgment was therefore rendered in favor of Mr. Melancon in the amount of $1,443.35. The defendant appeals, asserting that the trial court erred in finding the plaintiff carried his burden of proof, in finding the plaintiff was not contributorily negligent, and in assessing the damages awarded to the plaintiff.

The function of the trial court is to resolve disputes, even if the resolution is difficult. In a case where both litigants present evidence on the same point, the decision on that point must favor one or the other, unless the evidence is exactly equal. United Services Automobile Association v. Travelers Insurance Company, 255 So.2d 418 (La.App. 4th Cir.1971).

Both parties claim to have had the right of way by virtue of the green light. This case, therefore, presents a purely factual question. The reviewing court must give great weight to the factual conclusions of the trial judge, especially where the credibility of witnesses is involved. When there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed in the absence of manifest error. Canter v. Koehring Company, 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). There is sufficient evidence in the record to support the findings of the trial court. In addition to the testimony of the two parties to the lawsuit, the plaintiff called two witnesses to testify on his behalf, Jack Smith who investigated the accident, and Mr. Clovis Babin who was at the scene of the accident.

Officer Smith testified that after taking the statements of the two drivers and the witness, and after observing the scene of the accident he prepared an accident report. Although Officer Smith did not issue any tickets, on his report he indicated a violation to the “number 2” car, which was Mr. Harrell’s car. The violation read “disregard to (sic) traffic control”.

There was one witness at the scene of the accident who did not actually see the two cars collide, Mr. Clovis Babin, who was in a white van in the oncoming lane of traffic, facing in the direction of Mr. Melancon. Mr. Babin was stopped for the same traffic signal as Mr. Melancon. Mr. Babin gave very limited testimony, but he did corroborate the fact that Mr. Melancon was stopped at the intersection while the traffic light was red. Although this does not prove conclusively that Mr. Melancon waited for the green light, it does establish that more likely than not, since Mr. Melancon had come to a full stop at the traffic signal, he did not then proceed to disobey the red light. Therefore, we conclude that the trial judge had a reasonable basis for his finding of liability on the part of the defendant, and this finding should not be disturbed on appeal.

The defendant has also raised the contention that the trial court awarded excessive damages to the plaintiff. The plaintiff, however, has introduced sufficient evidence to prove that the cost of repairing the damage done to the plaintiff’s car was not disproportionate to the award made by the trial judge. Awards for damages lie within the “much discretion” of the trier of fact and are not to be disturbed on appeal unless there is a manifest abuse of discretion. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976). We find the trial judge was within the scope of discretion accorded by law.

For the foregoing reasons, the judgment of the trial court is hereby affirmed, Defendant to pay all costs.

AFFIRMED.


text:
    Johnny C. ABRAHAM v. Mike M. SPERANDEO.
    No. 82 CA 0163.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.
    Johnny C. Moore, Baton Rouge, for plaintiff-appellee Johnny C. Abraham.
    Sumpter B. Davis, III, Baton Rouge, for defendant-appellant Michael A. Sperandeo.
    Before EDWARDS, WATKINS and SHORTESS, JJ.
   SHORTESS, Judge.

This appeal arises from a suit to collect two demand promissory notes dated January 23, 1975, made payable to Johnny J. Abraham (plaintiff) by Mike M. Sperandeo (defendant). These notes, one for the principal sum of $20,000.00 and the other for the principal sum of $10,000.00, were never honored or paid by defendant despite demand therefor. The trial court rendered judgment in favor of plaintiff and against defendant for $30,000.00, together with interest and attorney fees as provided in the notes. In written reasons, the trial court found that:

“Mr. Sperandeo has failed to show the existence of a suspensive condition and has failed to successfully rebut the presumption that the notes were given for consideration.”

Defendant perfected this appeal.

This litigation arose from the following facts: In 1968, plaintiff gave defendant $10,000.00 for a 25% interest in-defendant’s wholesale optical business. In 1969, plaintiff and defendant began a retail optical dispensary. Each party owned a 50% interest in the retail business. In late 1974 or early 1975, plaintiff asked defendant to purchase his interest in both businesses. An agreement was reached between the two whereby defendant agreed to buy plaintiff’s interest. On January 23, 1975, the two notes in question here were executed by defendant, along with two corresponding cash sale deeds.

Defendant argues that the trial court erred in concluding that consideration was given for the two notes and in finding that he failed to show the existence of a suspen-sive condition.

In a suit on a promissory note by a payee against the maker, the plaintiff will be given the presumption that the instrument was given for value received unless the maker casts doubt upon the consideration. Once the maker has cast doubt upon the issue of consideration, the burden shifts to the payee to prove consideration by a preponderance of the evidence. Brashears v. Williams, 294 So.2d 246 (La.App. 1st Cir.1974).

Testimony reveals that the consideration given by plaintiff for the $10,000.00 note was his 50% interest in Optical Service Dispensory, Inc. (the retail business), and the consideration given for the $20,000.00 note was plaintiff’s 25% interest in Mike Sperandeo Optical, Inc. (the wholesale business). Upon receiving the notes, plaintiff relinquished all his interest in the businesses and released all claims he may have had against defendant and the corporations. Furthermore, defendant testified that the retail business began its collapse after Dr. Juanedd Berry, the associated opthamologist, suddenly left in March of 1975, some two or three months after the notes were executed. Defendant stated that at the time the notes were executed he felt both the businesses could succeed. Thus, defendant’s contention that plaintiff’s interest in the businesses was worthless at the time of the execution of the notes is unfounded. The decision of whether the notes were issued for proper consideration must ultimately rest on the credibility of the parties. The trial judge apparently felt that the testimony offered by defendant was not sufficient even to cast doubt upon whether consideration was given for the notes. In written reasons for judgment, the trial judge stated:

“Testimony taken at the trial of this matter shows that consideration was given for each of the notes.”

Sufficient evidence was offered by plaintiff to justify the trial judge’s conclusion, and we do not find that he was clearly wrong in this finding.

The trial judge was also correct in finding that defendant failed to prove the existence of a suspensive condition. The party relying upon a suspensive condition as a defense bears the burden of proving the existence of the condition. F.C. Williams Real Estate v. Haydel, 364 So.2d 171 (La.App. 1st Cir.1978).

No written agreement shows that the notes were conditional. The testimony of the parties as to the existence of a sus-pensive condition substantially differed. Defendant testified that he agreed to pay the notes only if the businesses were successful after the lapse of five years. Plaintiff testified that the sole condition was that he would not attempt to collect on the notes for five years. He repeatedly stated that the obligation was not conditional upon the success of the businesses. There were no witnesses to their negotiations. However, John C. Perroneel testified that he overheard a conversation between them to the effect that the obligation to pay the notes was conditional upon the success of the businesses. Perroneel, a witness for defendant, was the dispensing optician in the retail outlet and is presently associated with defendant in business. He testified that the conversation took place at the retail establishment approximately two to three months after the notes and cash sale deeds were executed. In contrast, plaintiff testified that he never visited either business after the notes were executed, and that he never associated with defendant again. An assessment of credibility is crucial to the resolution of this dispute. As stated by the trial judge:

“The Court is of the opinion that the testimony of Mr. Abraham is the more plausible one.”

Appellate courts have the authority to review both law and fact in civil cases. However, the findings of fact made by the trial judge will not be disturbed on appeal absent a determination that those findings are manifestly erroneous. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). As stated by the Louisiana Supreme Court in Canter v. Koehring Company, 283 So.2d 716 (La.1973) and reiterated in Arceneaux v. Domingue, supra:

“When there is evidence before the trier of fact, which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error.” 283 So.2d at 724.

The trial judge found that defendant failed to prove the existence of a suspensive condition and failed to successfully rebut the presumption that the notes were given for consideration. We find no manifest error in either of these findings. Therefore, the judgment of the trial court is affirmed at defendant’s costs.

AFFIRMED.


text:
    Merlin L. BROUSSARD, Sr. v. Sid B. HENRY, d/b/a Sid’s Diesel Service.
    No. 82-CA-0168.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.

      Mac Trelles, Jr., Baton Rouge, for plaintiff.
    Victor J. Versaggi, Patterson, for defendant.
    Before EDWARDS, WATKINS and SHORTESS, JJ.
   EDWARDS, Judge.

Plaintiff, Merlin L. Broussard, Sr., appeals the lower court’s decision granting summary judgment to the defendant, Sid B. Henry, d/b/a Sid’s Diesel Service.

Broussard sued Henry to recover past wages allegedly owed him. In a supplemental petition, Broussard alternatively sought his share of partnership profits from the sale of two vessels by the partnership between Henry and Broussard. Broussard also claimed unjust enrichment and breach of contract by Henry.

Henry filed a motion for summary judgment. The lower court ruled that the existence of the partnership between Henry and Broussard precluded an employer-employee relationship and granted summary judgment dismissing the wages claim. The court also granted summary judgment as to Broussard’s claim for partnership profits, finding his share precluded by the Dissolution of Partnership agreement signed by Broussard and Henry. The suit was dismissed with prejudice against the plaintiff.

On appeal, Broussard raises two questions. First, whether the lower court erred in finding no genuine issue of material facts regarding the claims for wages and partnership profits. Second, whether the lower court erred in failing to consider and rule on the alternative claims of unjust enrichment and breach of contract.

We affirm the lower court’s summary judgment dismissing the claim for wages. We dismiss the plaintiff’s claims for breach of contract and unjust enrichment. However, this court reversed the summary judgment dismissing the plaintiff’s claim for partnership profits.

BACKGROUND FACTS

On or about February 21,1975, Broussard and Henry entered into a verbal business relationship. The deposition of Broussard indicates that he understood he was entering a partnership, entitled to 50% of all profits.

The purpose of the partnership was to construct and sell tugboats. Broussard, a welder, was in charge of the actual construction of the vessels. Henry handled the financing, the ordering of supplies and other administrative matters. The boats were to be constructed at Henry’s facilities, known as Sid’s Diesel Service.

Broussard promptly began building the first vessel, the “Captain Louis.” He did the majority of the construction by himself, although part-time help was used. The “Captain Louis” was completed in December, 1975, and passed its sea trials. However, it was not sold. Subsequently, a second boat, the “Miss Ida,” was begun in January, 1976. A prospective purchaser signed a contract to buy the “Miss Ida” from the partnership in February, 1976. A down payment was also made. The “Miss Ida” was completed in late June and accepted by the purchaser, who paid the remaining balance.

However, at this time, Henry informed Broussard that the partnership was bankrupt. The “Captain Louis” had still not been sold. Broussard then signed the Dissolution of Partnership agreement on July 19, 1976, in which he transferred his interest in the partnership to Henry in exchange for a release of any partnership liability. Subsequent to the dissolution, the “Captain Louis” was sold.

CLAIM FOR WAGES

The lower court held that the existence of a partnership between Henry and Broussard precluded an employer-employee wage relationship. We find no error in the lower court’s conclusion that the parties knew and understood that they were partners. Summary judgment was therefore proper as to Broussard’s claim for wages, since there was no genuine issue of material fact as to the existence of an employer-employee relationship.

CLAIM FOR PARTNERSHIP PROFITS

The lower court held there was no indication or allegation that the Dissolution Agreement was not fully and agreeably entered into by the parties. It therefore granted summary judgment against Brous-sard’s claim for partnership profits.

But, in fact, Broussard did allege in his memorandum opposing summary judgment that Henry misrepresented the financial condition of the partnership to induce his signing of the agreement. Broussard’s supporting affidavit also alleged that Henry’s wife, who was the bookkeeper and part-owner of Sid’s Diesel Service, had “juggled the money in their favor.” Moreover, in his deposition, Broussard alleged he was “set up” in his dealings with Henry.

Subsequent to Broussard’s memorandum, Henry filed his memorandum and affidavits in support of summary judgment. However, Henry did not address the misrepresentation allegation raised by Broussard’s earlier memorandum. A copy of the dissolution agreement was attached, but this by itself does not resolve the issue of misrepresentation.

A party seeking a summary judgment has the burden of showing the complete absence of a genuine issue of material fact. All doubts as to the absence will be decided in favor of a trial on the merits and no summary judgment will be granted, even if the trial court has grave doubts regarding a party’s ability to establish disputed facts. Jones v. American Bank & Trust Co., 387 So.2d 1360 (La.App. 1st Cir.1980).

On a motion for summary judgment, the court must first determine whether the supporting documents presented by the moving party are sufficient to resolve all genuine issues of fact. If insufficient, summary judgment must be denied. If sufficient, the burden then shifts to the opposing party to present evidence showing that material facts are still at issue. At this point, the opposing party may no longer rest on the allegations and denials contained in his pleadings. Sanders v. Hercules Sheet Metal, Inc., 385 So.2d 772 (La.1980); LSA-C.C.P. Art. 967.

The validity of the dissolution agreement is a material fact in this case, because it determines the viability of Broussard’s claim for partnership profits. Broussard’s memorandum in opposition, affidavit and deposition raised the issue as to whether he was fraudulently induced to sign the Dissolution Agreement. The subsequent pleadings by Henry in support of summary judgment failed to resolve this issue of material fact. Therefore, summary judgment must be denied. The lower court’s decision granting summary judgment dismissing Broussard’s claim for partnership profits is reversed.

PLAINTIFF’S OTHER CLAIMS

In his supplemental petition, Brous-sard alleged he and Henry entered into a verbal contract for labor that Henry breached by failing to compensate him for services performed. However, the lower court correctly found that the parties formed a verbal partnership. The contract claim is therefore dismissed.

Broussard also asserted that Henry had been unjustly enriched by his uncompensated labor in building the tugboats. Assuming arguendo that the partnership dissolution agreement is invalid, Broussard would then have recourse as a partner to obtain compensation for his services. A claim for unjust enrichment would be improper in this situation, because one of its prerequisites is the lack of another remedy at law. Our Lady of Lake Med. Ctr. v. Cropper, 401 So.2d 403 (La.App. 1st Cir.1981), cert. denied, 404 So.2d 279 (La.1981). If the dissolution agreement is valid, Brous-sard would not have recourse as a partner, but a claim for unjust enrichment would again be improper because another of its prerequisites is the absence of justification or legal cause for the enrichment. Our Lady of Lake Med. Ctr. v. Cropper, supra. Thus, plaintiff’s claim for unjust enrichment is dismissed.

DECREE

The lower court’s decision granting summary judgment dismissing the claim for wages is affirmed. The claims for breach of contract and unjust enrichment are dismissed. The lower court’s decision granting summary judgment dismissing Broussard’s claim for partnership profits is reversed and the case is remanded for further proceedings. Costs of this appeal are assessed against the defendant, with other costs to await final disposition.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

      . Subsequent to the initiation of this suit, Henry died. On September 9, 1981, Eula Aucoin Henry, testamentary executrix, was substituted as defendant.


text:
    Sam SIMPSON v. The DEPARTMENT OF HEALTH AND HUMAN RESOURCES, State of Louisiana.
    No. 82 CA 0169.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.
    Vanue B. Lacour, Baton Rouge, for plaintiff-appellant Sam Simpson.
    Ronald A. Seale, Baton Rouge, for defendant-appellee Dept, of Health and Human Resources.
    Before EDWARDS, WATKINS and SHORTESS, JJ.
   WATKINS, Judge.

This is an action brought by Sam Simpson against the Louisiana Department of Health and Human Resources for alleged medical malpractice. The suit was met by defendant’s plea of prescription which, after a hearing on the exception, was sustained.

We have thoroughly reviewed the record, including the exhibits and the written reasons for judgment prepared by the trial court. We find ourselves to be in complete agreement with the trial court’s written reasons for judgment given in sustaining defendant’s plea of prescription, adopt the trial court’s written reasons for judgment in our opinion, and quote from the trial court’s written reasons for judgment in full:

“This came before the court on an exception of prescription filed by the Department of Health and Human Resources, State of Louisiana. In January, 1971, Sam Simpson was involved in an auto accident near Alexandria, Louisiana. Because plaintiff was unconscious, he was rushed to Huey P. Long Hospital in Pine-ville, Louisiana, where he was treated and released 18 days later. Subsequently, Simpson continued to complain about his progressively deteriorating health, but was informed by the doctors at Huey Long Hospital that he merely suffered from arthritis.
“Sometime between the above accident and this law suit plaintiff moved to California. Late one night plaintiff felt a heaviness in his chest and was taken to the hospital by his brother. This was in October of 1979. While at the hospital X-rays were taken, and plaintiff was informed by the treating physician, Dr. Mattson, that plaintiff had previously suffered a broken neck. Further, Dr. Mattson informed Simpson that he had had the broken neck for a long time. Thereafter, a Dr. Gail referred plaintiff to a Dr. Sanders for treatment of the improperly healed neck. In addition to the above problems, Dr. Sanders discovered plaintiff had also suffered a odontoid fracture in the neck. The neck has seven bones. Dr. Mattson informed plaintiff of problems at the C-5 level; additionally, Dr. Sanders found problems at the C-l and C-2 level. Obviously, although separate bones of the vertebrate are involved, they are closely allied and in the same immediate area.
“Plaintiff is now seeking damages for the defendant’s negligence in failing to discover and treat the above related problem. Suit was filed November 13, 1980. After filing an answer the defendant then later filed this peremptory exception of prescription alleging that plaintiff was aware of sufficient facts in October, 1979 to put him on notice of any negligence of defendant. Therefore, defendant argues, since suit was not filed until more than a year after the latest date in October, then plaintiff’s action has prescribed.
“The issue before the court is: What did the plaintiff know, and when did he know it? That is, when did this plaintiff become aware of facts which should have put him on notice? It is defendant’s position that plaintiff knew most certainly of the neck problems when he was explicitly informed by Dr. Mattson of such in October, 1979. On the other hand, plaintiff contends that plaintiff was not put on notice and was not fully aware of his injury until Dr. Sander’s discovery of the odontoid fracture in November, 1979.
“The prescription period in this case is one year. The court notes that the time period in this case is not governed by LSA-R.S. 9:5628 because this statute did not become effective until 1975, and moreover, the Supreme Court of Louisiana has held in Lott v. Haley, 370 So.2d 521 (La.1979) that this statute is not to be given retroactive effect. Rather, plaintiff’s case will be prescribed if plaintiff did not file suit within one year of the date plaintiff became aware of facts which would put him on notice of a possible cause of action.
“With respect to the notice question, the court observes that our Supreme Court and Courts of Appeal have uniformly held that a plaintiff need only have constructive notice of those facts which would enable a plaintiff to bring suit; actual knowledge is not required. Further, constructive notice is defined as notice sufficient to excite attention and put a potential plaintiff on his guard and call for further inquiry. Lott v. Haley; Cartwright v. Chrysler Corporation [255 La. 597], 232 So.2d 285, (La.1970); Sanders v. Blunt, 357 So.2d 620 (La.App. 1st Cir., 1978), writ refused; Sartin v. St. Paul Fire and Marine Insurance Co., 359 So.2d 649, (La.App. 1st Cir., 1978).
“It is the courts (sic) opinion that the plaintiff had more than enough facts and information on hand after his discussions with Dr. Mattson to inform him as to the nature of his injury and the possible cause of action which existed because of the hospital’s failure to properly diagnose the injury. This was in October, 1979, more than a year before suit was filed. Indeed, in plaintiff’s deposition he states repeatedly in response to questions by his own attorney that he knew he had had a broken neck when Dr. Mattson informed him of the fact October, 1979. More importantly, the plaintiff was aware of the probable connection, or nexus if you will, between the 1971 accident and the neck problems because plaintiff states in his deposition:
‘Q. (By defendants (sic) attorney): Did he (Dr. Mattson) tell you how long your neck had been broken?
A. He told me it had been for a long time.
Q. Did he tell you it was broken in 1971?
A. He didn’t tell me no year at all. He just said it was an old break, so obviously it come from when I was broke up in 1971. That the only time I ever had a chance to get anything broke about me.’
This passage proves beyond doubt that plaintiff knew of the neck problems and that he connected them to the 1971 accident in October, 1979 when Dr. Mattson informed plaintiff of such. Plaintiff may not have known of the full extent of his neck problems in October, but the court finds he was aware of facts which put him on notice of possible negligent treatment in 1971. Knowing what plaintiff did in October, 1979, prescription commenced to run then and not in November, 1979; and consequently the court determines that plaintiff’s suit filed in November 1980 was untimely.
“The defendant’s exception of prescription will be maintained; judgment will be signed accordingly dismissing plaintiff’s suit at his cost.”

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

AFFIRMED.


text:
    LOUISIANA STATE EMPLOYEES’ RETIREMENT SYSTEM, et al. v. STATE of Louisiana, Through the DEPARTMENT OF JUSTICE, et al.
    No. 82 CA 0170.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.
    Writ Denied Jan. 28, 1983.
    Carlos G. Spaht, and William T. Reeves, Jr., Baton Rouge, for plaintiffs-appellees Louisiana State Employees’ Retirement System, Teachers’ Retirement System of Louisiana, Louisiana School Employees’ Retirement System and Louisiana School Lunch Employees’ Retirement System.
    Patricia Nalley Bowers, New Orleans, for defendant-appellant State of La., Through Dept, of Justice and Through the Atty. Gen., William J. Guste, Jr.

      Before EDWARDS, WATKINS and SHORTESS, JJ.
   SHORTESS, Judge.

The Louisiana State Employees’ Retirement System, Teachers’ Retirement System of Louisiana, Louisiana School Employees’ Retirement System, and the Louisiana School Lunch Employees’ Retirement System (appellees) brought suit for declaratory judgment seeking to resolve the question of their authority to invest funds belonging to their respective retirement systems in common stocks. Appellees are expressly authorized, pursuant to La.R.S. 42:647, La.R.S. 17:671, La.R.S. 17:961, and La.R.S. 17:1288, respectively, to invest in common stocks. The Attorney General for the State of Louisiana (appellant) rendered opinion No. 80-1049, dated August 29, 1980, wherein he concluded that the purchase of common stock by appellees was prohibited by Article 7, Section 14(A) of the Louisiana Constitution of 1974:

“Section 14. (A) Prohibited Uses. Except as otherwise provided by this constitution, the funds, credit, property, or things of value of the state or of any political subdivision shall not be loaned, pledged, or donated to or for any person, association, or corporation, public or private. Neither the state nor a political subdivision shall subscribe to or purchase the stock of a corporation or association or for any private enterprise.”

The trial court held that the language contained in Article 7, Section 14(A), was not applicable to appellees because the retirement system funds were not public/state funds, and the retirement boards were not “political subdivisions” as contemplated by the Constitution. The Attorney General has appealed. The issue presented on appeal is whether the Constitution prohibits appellees from subscribing to or purchasing common stock. Appellant argues that since the prohibition against purchase of common stock is plain and unambiguous that its language must be given effect. City of Baton Rouge v. Short, 345 So.2d 37 (La.1977). Appellees contend that there is no conflict between the Constitution and the statutes. They argue that the Constitution must be construed in its entirety, and when doing so, it is obvious that the prohibition is limited to “... the funds, credit, property, or things of value of the state or of any political subdivision.”

In addressing this issue the trial court in its reasons for judgment stated:

“The two sentences of the article, when read together, as is necessary for a fair interpretation of the language used, explicitly forbid the use, by ‘the state or . . . any political subdivision’, of public things for private enterprise including among other things a prohibition of the purchase of or subscription to the stock of a corporation.”

Both sides cite Public Housing Admin. v. Housing Auth. of Bogalusa, 242 La. 519, 137 So.2d 315 (1961). In that case, the Supreme Court held that the Housing Authority of Bogalusa, a public corporation, would contravene the provisions of Article 4, Section 12, of the Louisiana Constitution of 1921 , if the Housing Authority were permitted to purchase fire and extended coverage insurance in a mutual insurance company. Since such a purchase was found to be a prohibited subscription to capital, appellant argues that it is authority to likewise prevent appellees from subscribing to or purchasing common stock. However, ap-pellees direct our attention to this language from Bogalusa, supra:

“Constitutional limitations, like those set forth in Section 12 of Article 4, are to be construed so as to give full meaning and effect to the language employed therein. ‘One part may qualify another so as to restrict its operation, or apply it otherwise than the natural construction would require if it stood by itself; but one part is not to be allowed to defeat another, if by any reasonable construction the two can be made to stand together. Every provision should be construed, where possible, to give effect to every other provision.’ 1 Cooley’s Constitutional Limitations (8 ed.) 129.” 137 So.2d at 320.

The facts of Bogalusa are inapposite on one critical point: the funds involved there were public/state funds. The funds involved here consist of contributions made by the individual members of the retirement systems and matching contributions by the State. The State contributions are in the nature of fringe benefits or additional compensation. The funds here belong to the members of the systems. Neither the > State nor the general public has any proprietary interest in same. These funds are in trust for the members of the systems. Construing the article in its entirety, we hold that the constitutional aim was to prohibit the use of public/state funds for private investment, but that funds belonging to these retirement systems are not public/state funds as contemplated by Article 7, Section 14(A), and appellees may invest same in accordance with the statutory authority vested in them in La.R.S. 42:647, La.R.S. 17:671, La.R.S. 17:961, and La.R.S. 17:1288. The decision of the trial court is affirmed at appellant’s costs. Costs in this matter amount to $352.44.

AFFIRMED.

      . The pertinent language thereof provided:
      “The funds, credit, property or things of value of the State, or of any political corporation thereof, shall not be loaned, pledged or granted to or for any person or persons, associations or corporations, public or private; nor shall the State, nor any political corporation, purchase or subscribe to the capital stock or stock of any corporation or association whatever, or for any private enterprise.”


text:
    William M. DAVIS, Jr. v. STATE of Louisiana, Through the DEPARTMENT OF PUBLIC SAFETY.
    No. 82 CA 0171.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.
    William D. Grimley, Baton Rouge, for plaintiff-appellant William M. Davis, Jr.
    Michael C. Barron, Associate Gen. Counsel, Dept, of Public Safety, Baton Rouge, for defendant-appellee State, Dept, of Public Safety, Driver’s License Div.
    Before EDWARDS, WATKINS and SHORTESS. JJ.
   EDWARDS, Judge.

Following the suspension of his driving license for one year upon his second DWI offense, William M. Davis, Jr. (plaintiff) filed a petition pursuant to R.S. 32:415.1 seeking a restricted driver’s license on the basis fo economic hardship. The trial court denied plaintiff’s petition and this devolu-tive appeal was taken. We affirm.

Under R.S. 32:415.1, a trial court may order the Department of Public Safety to issue a restricted driver’s license to an individual when it is shown that the lack of a license would result in economic hardship, i.e., deprive the person or his family of the necessities of life or prevent the individual from earning a livelihood.

The only evidence offered by Mr. Davis to prove economic hardship under R.S. 32:415.1 was his own testimony. At the hearing, he testified that he is separated from his wife, and his father and sister now live with him in Baton Rouge, Louisiana. His father has coronary problems, while his sister suffers from arthritis. Mr. Davis stated he works as a quality control lab supervisor at Exxon Plastics in Baker, Louisiana. He has previously driven himself to work.

Although his father is disabled, Mr. Davis’ testimony did not completely discount the possibility of his sister driving him to work, despite her arthritis. His testimony indicated that she drives and owns a car. Moreover, he did not testify that other arrangements for transportation were unavailable.

Additionally, Mr. Davis did not testify that he would lose his job if unable to drive. Nor did he state that it would be impossible to continue working without a driver’s license.

Based on the foregoing evidence offered by Mr. Davis, we find no error in the trial court’s conclusion that he did not establish the required economic hardship for a restricted license under R.S. 32:415.1. Under similar facts, this court upheld a denial of a restricted license in Ansley v. State, Dept. of Public Safety, 356 So.2d 518 (La.App. 1st Cir.1977). In that case, as here, plaintiff failed to testify that he would lose his job if unable to drive, or that other arrangements for transportation could not be made.

Mr. Davis’ failure to satisfy the burden of proof makes it unnecessary for us to decide whether the term “family” in R.S. 32:415.1 covers an extended family as in this case.

For the foregoing reasons, the judgment of the district court is affirmed. All costs of this appeal are to be paid by plaintiff-appellant.

AFFIRMED.


author: COLE, Judge.

text:
    In the Matter of the SUCCESSION OF Annie Bell KENNEDY.
    No. 82 CA 0172.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.

      James R. Coxe, Baton Rouge, for plaintiffs-appellees Hester Johnson, Ethel Hamilton, Charlie Wooders, Albertha Rogers and James Kennedy.
    Joel B. Dickinson, Baton Rouge, for defendant-appellant Lillian Kennedy Knight-en.
    Before LOTTINGER, COLE and CARTER, JJ.
   COLE, Judge.

The issue in this probate matter is whether or not the testatrix, Annie Bell Kennedy, was able to read.

The facts are as follows. On July 8,1974, Mrs. Kennedy confected a statutory will in the presence of a notary and two witnesses. See La.R.S. 9:2442. Therein she granted one-third of her estate (the disposable portion) to her minor granddaughter, Viola Maxine Burns, as an extra portion. The remainder of her estate was bequeathed to Viola Burns and the testatrix’s five children, “share and share alike.” She further granted usufruct over her immovable property to Viola Burns for life and appointed her daughter Lillian Kennedy as tutrix of the minor.

Mrs. Kennedy died on June 15, 1980, and the legatees petitioned the court for a judgment of possession. The petition alleged the estate was relatively debt free so there was no need for an administration. A judgment of possession was rendered accordingly on August 25, 1980. On September 16, 1980, a petition was filed by Hester Johnson, Ethel Hamilton, Charlie Wooders, Alb-ertha Rogers and James Kennedy for the purpose of annulling the probated testament and the judgment of possession. Named as defendant was Lillian Knighten, individually and as the tutrix of the minor, Viola Burns. The plaintiffs contended the testament was invalid because Mrs. Kennedy had not been able to read or write and therefore lacked the capacity to execute a statutory will. The plaintiffs asserted further they had not been notified of the previous succession proceedings and did not “accept the succession” as had been stated in the petition for the judgment of possession. Plaintiffs argued alternatively the usufruct placed upon the forced portion was an infringement on their legitime.

A trial was held and various witnesses testified concerning Mrs. Kennedy’s ability to read and write. Lillian Knighten testified she had seen her mother reading the bible, the newspaper and magazines. She said her mother made grocery lists and wrote down the phone numbers of people who called. She claimed her mother had written out certain obituary information which was later printed and handed out at the funeral, but she did not have the original copy to offer into evidence.

Viola Burns testified she had lived with her grandmother for all of her life and knew her to be able to write grocery lists, take phone numbers and had seen envelopes containing letters to some of her grandmother’s children. Although both witnesses stated Mrs. Kennedy could write, there was no documentary evidence introduced to prove this fact. Several legal documents were introduced, such as a social security card, an act of mortgage and an act of exchange. All contained the signature of Annie Bell Kennedy.

Mr. Joel Dickinson, counsel for defendant and notary for the contested will, testified Mrs. Kennedy had dictated the will to him, he had written it and then read it back to her. He assumed she could read because she could sign her name.

The remaining witnesses (all children of the deceased), Hester Johnson, Albertha Rogers and James Kennedy, testified unequivocally their mother had had no education and had never been able to read or write. Hester Johnson said she taught her mother how to sign her name and would guide her mother’s hand while she did so.

The trial court rendered judgment in favor of plaintiffs, declared the will invalid and annulled the judgment of possession. The court noted at the time the will was confected (July 8, 1974) one who could not read and sign his name could not make dispositions by means of a “statutory win ” Court concluded the evidence showed “beyond a reasonable doubt” that Annie Bell Kennedy did not have the capacity to execute a valid statutory will because she could not read. The court noted her ability to sign her name did not prove she could read and did not give her the capacity to execute a will under La.R.S. 9:2442.

Defendant applied for a new trial, alleging she had newly discovered written evidence which was important to the case and could not with due diligence have been obtained for trial. She also asserted a subpoena was timely requested and issued for Mrs. Francis J. Rowe, apparently a former employer of decedent, but it was not served and she did not appear for trial. A hearing was held and the new trial was denied. Defendant then filed this appeal.

Appellant contends the court erred in failing to grant the new trial and alternatively in rendering judgment in favor of plaintiffs when the evidence indicated Mrs. Kennedy was able to read and write.

As regards the denial of a new trial, the alleged newly discovered written evidence consisted of three documents signed by decedent and a writing purporting to be a will which was allegedly written and signed by decedent. The three signed documents are of no significance because they prove only decedent was able to sign her name, a matter which is not contested. The purported will, a writing that is largely illegible, may arguably be said to show decedent could read. One may, of course, raise the possibility she copied another writing without comprehending its meaning.

When the case was called for trial on October 27th the court inquired of counsel if they were ready. Counsel for defendant responded he was ready except for his witness, Mrs. Rowe, who he had subpoenaed on October 2nd but who had not been served by the sheriff and was, therefore, not present. The trial judge noted the pretrial conference was held on September 1st, more than a month before the subpoena was requested, and, stating he did not know at the moment what the court would do regarding her absence, said “... we’ll take that up later.” The case then proceeded to trial. Counsel for defendant did not comment further regarding the absence of Mrs. Rowe. Nor did he move to continue the proceedings until a later date or to have issued an instanter subpoena for Mrs. Rowe’s presence.

After the plaintiffs presented their ease and rested, the defendant presented her case and rested, but not subject to calling Mrs. Rowe. In fact, counsel for defendant did not even mention Mrs. Rowe. He obviously was content to rely upon the evidence already presented. After the plaintiffs presented rebuttal testimony the matter was submitted for decision. Here again, the defendant did not seek to hold the case open for the testimony of Mrs. Rowe. Under these circumstances, we conclude, as must have the trial judge, that defendant waived her right to have Mrs. Rowe testify at trial, and, her testimony obviously cannot be said to constitute newly discovered evidence for purposes of a new trial.

It is well settled in order for a new trial to be granted on the basis of newly discovered evidence it must be shown the evidence was discovered after the trial and that the party used every effort and all diligence in his power to timely procure the evidence. Orlando v. Polito, 228 La. 846, 84 So.2d 433 (1955); LeBlanc v. Consolidated Aluminum Co., 401 So.2d 1082, 1083 (La.App. 3d Cir.1981), writ denied 1981. The motion for a new trial was argued by counsel for plaintiffs and the trial judge denied the motion. We have no transcript of the proceedings but obviously the trial judge was not satisfied the defendants used “due diligence” in seeking the written evidence. We decline to disturb that finding of the trial court.

The evidence presented at trial was entirely subjective and was presented only by interested witnesses. On the one hand, defendant and Viola Burns both insisted Mrs. Kennedy could read and write but offered no written evidence as proof. The various exhibits containing her signature proved only that she was able to sign her name. We agree with the trial court the ability of Annie Bell Kennedy to sign her name does not prove she could read.

On the other hand, the defendants testified unequivocally Mrs. Kennedy had never been able to read or write. The only nonin-terested witness (Mrs. Dorothy Sommers, an employer of Mrs. Kennedy’s some thirty-five years prior to the trial) stated she had no knowledge of whether or not Mrs. Kennedy could read or write. Therefore, her testimony shed no light on the issue.

In summation, the evidence consisted of bald assertions by opposing and equally interested parties as to Mrs. Kennedy’s literacy. As an appellate court it is most difficult for us to judge the credibility of the witnesses simply by reading the cold record. The trial court is in a far superior position to make this judgment as it observes the demeanor of the witnesses. It is the trial court, rather than the appellate court, who can note first-hand the facial expressions, the tone of the voice, the posture and the innumerable other factors which are indicative of a person’s truthfulness as he testifies. For this reason, it has become well settled that unless manifest error is evident, the appellate court should not disturb the trial court’s reasonable evaluation of one set of witnesses as credible and its consequent rejection of the testimony of the opposing set of witnesses. Billiot v. Bourg, 338 So.2d 1148 (La.1976); Oncale v. Clement, 411 So.2d 543 (La.App. 1st Cir.1982). We find no manifest error in the trial court’s conclusion and therefore will not disturb its findings as to facts based upon credibility.

For these reasons, the judgment of the trial court is affirmed. Costs are to be paid by appellant.

AFFIRMED.

      . The five children are Lillian Kennedy Knight-en, Albertha Kennedy Rogers, Ethel Kennedy Hamilton, Hester Kennedy Johnson and James Kennedy.

      . Charlie Wooders is allegedly a son born of a prior marriage.

      . At that time La.R.S. 9:2443 read as follows:
      “Except as provided in R.S. 9:2442 with respect to a testator who is physically unable to sign his name, those who know not how or are not able to sign their names, and those who know not how or are not able to read, cannot make dispositions in the form of the will provided for in R.S. 9:2442, nor be attesting witnesses thereto.”

      . Defendant’s counsel submitted the matter without oral argument.


text:
    Mrs. Caroline ARMSTRONG, et al. v. STATE FARM FIRE AND CASUALTY COMPANY, et al.
    No. 82 CA 0177.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.

      J.D. DeBlieux, DeBlieux & Hurder, Baton Rouge, Lawrence W. Bell Attaya & Bell, Gonzales, for plaintiffs, appellants.
    Frank A. Fertitta, Lane & Clesi, Baton Rouge, for defendants and appellees.
    Before EDWARDS, WATKINS and SHORTESS, JJ.
   SHORTESS, Judge.

On September 18, 1975, Caroline Armstrong (plaintiff) attended a funeral at Our-so Funeral Home in Duplessis, Louisiana. As she left the funeral home, she fell at the threshold of the front door. She and her husband, John Armstrong, filed suit on September 17, 1976, against Ourso Funeral Home, Inc., and its insurer, State Farm Fire and Casualty Company (defendants) for damages resulting from the fall. The trial date was set for July 30, 1980. On July 22, 1980, counsel for plaintiff filed a motion for continuance, which was denied after a hearing. The case went to trial, and the trial judge ruled in favor of defendants, dismissing plaintiff’s case.

Plaintiff asserts that the trial judge erroneously (1) refused to grant a continuance, (2) refused to hold the trial open for the testimony of additional fact witnesses, and (3) found defendants free from liability for the injuries resulting from the fall.

Article 1602 of the Louisiana Code of Civil Procedure specifies the peremptory grounds for a continuance:

“A continuance shall be granted if at the time a case is to be tried, the party applying for the continuance shows that he has been unable, with the exercise of due diligence, to obtain evidence material to his case; or that a material witness has absented himself without the contrivance of the party applying for the continuance.”

The mover bears the burden of proving that his motion falls within these peremptory grounds. Williams v. Fontane, 175 So.2d 686 (La.App. 1st Cir.1965). In order for La.C.C.P. art. 1602 to be applicable, certain conditions must be met: (1) either the party requesting a continuance must have exercised due diligence, yet been unsuccessful in obtaining material evidence, Sather v. White, 388 So.2d 402 (La.App. 1st Cir.1980), or (2) a material witness must have absented himself contrary to the arrangement made by the party for the witness to appear. Loicano v. Maryland Casualty Insurance Co., 301 So.2d 897 (La.App. 4th Cir.1974). Plaintiff made no showing that witnesses were absent contrary to her wishes or that the testimony they would have given was material.

Plaintiff asserts that a continuance should have been granted because three witnesses, Dempsey Pendarvis, Raymond Pendarvis, and Melody Picou, failed to appear at trial. Raymond Pendarvis apparently resides in Texas, outside the subpoena power of the trial court. Subpoenas were apparently issued for Dempsey Pen-darvis and Melody Picou, but were not served. However, none of these absent witnesses actually saw plaintiff fall. No factual showing was made that their presence was necessary to resolve this controversy. In addition, Melody Picou was going to testify about subsequent repairs that allegedly were made three weeks after the fall. Assuming, arguendo, that such corrective measures were taken, post-accident changes are not admissible to show negligence. Esta v. Dover Corp., 385 So.2d 439 (La.App. 1st Cir.1980), writ denied, 392 So.2d 690 (La.1980). A trial judge must always consider the effect a continuance would have on the administration of justice. Lambert v. Heirs of Adams, 325 So.2d 331 (La.App. 3d Cir.1975), writ denied, 329 So.2d 458 (La.1976). We do not find that injustice has resulted in this case.

While the inability to obtain material evidence is a mandatory ground for continuance, due diligence must be shown. Superior Oil Co. v. Van Breemen, 378 So.2d 444 (La.App. 3d Cir.1979), writ denied, 379 So.2d 1101 (La.1980). The trial judge felt that no adequate showing of due diligence had been made. Approximately three and one-half years had elapsed between the filing of suit and the date set for trial. The unavailable witnesses were not subpoenaed until the motion for continuance was denied. The trial judge stated that the proper approach was to “subpoena the people and then you ask for the continuance; and if you don’t get the continuance, you have the people.”

An additional ground for granting a continuance is stated in La.CCP art. 1601:

“A continuance may be granted in any case if there is good ground therefor.”

Under this article, a continuance rests within the sound discretion of the trial court. Appellate courts only interfere in such matters with reluctance and in extreme cases. Superior Oil Co. v. Van Breemen, supra. A line has to be drawn somewhere, and a trial date has to be set. A trial judge has the inherent power to take reasonable actions to control his docket. Sather v. White, supra. We do not find that the trial court abused its discretion in denying the continuance.

Plaintiff asserts that the trial judge erroneously refused to hold the case open for the testimony of additional fact witnesses. The decision to hold open or reopen a case for the production of additional evidence is within the sound discretion of the trial judge, and his decision will not be disturbed unless he abused his discretion. Baltzar v. Missouri Pac.B.R, 406 So.2d 324 (La.App. 3d Cir.1981). We are unable to find an abuse of discretion by the trial judge in refusing to hold the case open under these circumstances. If the case had been left open for the plaintiff to introduce additional testimony, defendants would have been placed at a disadvantage, since the defense had already revealed its entire case.

Plaintiff also appeals the trial judge’s decision on the merits of the case. The owner of a business establishment must keep his floor and passageways in a reasonably safe condition for use in a manner consistent with the purposes of the premises. Jones v. Recreation and Park Commission, Etc., 395 So.2d 846 (La.App. 1st Cir. 1981), writ denied, 400 So.2d 1379 (La.1981). However, plaintiff has the burden of proving by a preponderance of the evidence that a premise hazard caused her f^ll and her injuries. Johnson v. Ins. Co. of North America, 360 So.2d 818 (La.1978). The testimony given at trial reveals that a substantial controversy existed regarding the description of the doorway. Mr. Thomas Moore, the manager of the Ourso Funeral Home, and Willie Wyble, its general manager, testified that at the base of the doorway was an aluminum threshold approximately four inches wide and about half an inch tall, with tapered edges on both sides. The photographs in evidence substantiate their descriptions. They also testified that said threshold had not been changed or remodeled in any way. In contrast, plaintiff said that the threshold was not beveled at the time of the accident, and that her foot got caught on the aluminum threshold. Plaintiff asserts that one side of the threshold was changed after the accident, while Moore testified that the threshold was one solid piece, making it impossible to replace one part and not the other. When a conflict in testimony exists, reasonable evaluations of credibility and inferences of fact should not be disturbed on review absent manifest error. Canter v. Koehring Company, 283 So.2d 716 (La.1973). The trial judge concluded that defendants were free from liability for the injuries resulting from the fall. This conclusion, supported by competent evidence, is not manifestly erroneous. We affirm the trial court’s decision at plaintiff’s costs.

AFFIRMED.

      . When suit was filed, La.C.C.P. art. 686 provided that the husband was the proper plaintiff, during the existence of the community, to sue to enforce a community right. Mr. Armstrong was a plaintiff only because he was the proper party plaintiff to sue for the medical bills. He was not a witness to the accident. He was unable to attend trial because of illness, and Mrs. Armstrong asked for a continuance which was denied. Defense counsel agreed to allow his deposition to be taken at a later time and submitted as testimony. Mrs. Armstrong was not prejudiced by her husband’s absence at trial. Because provision was made for the submission of his deposition, his inability to be present at trial did not necessitate a continuance.


author: CARTER, Judge.

text:
    Dave L. PEARCE v. Louis B. ROGERS. Dave L. PEARCE v. J. Huntington ODOM.
    Nos. 82 CA 0181, 82 CA 0182.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.
    Joel B. Dickinson, Baton Rouge, for plaintiff-appellant Dave L. Pearce.
    J. Huntington Odom, in pro per.
    Donald R. Smith, Kim G. Mayhall, Baton Rouge, for defendant-appellee Louis B. Rogers.

      Before LOTTINGER, COLE and CARTER, JJ.
   CARTER, Judge.

In 1966, Riverside Plantations, Inc. negotiated a transfer of all its assets to Allied Chemical Corporation. Shareholders of Riverside were to receive one share of Allied stock for each share of Riverside stock. The terms of the transfer called for the Riverside stock to be delivered to J. Huntington Odom, secretary of Riverside, before the Allied stock would be delivered. Allied’s certificate no. S30084 (for 288 shares) was issued in the name of Dave Pearce in anticipation of the surrender by Pearce of Riverside’s certificate no. 139 (for 288 shares). Mr. Odom has possession of the Allied certificate and refuses to deliver it to Pearce until Riverside certificate no. 139 is surrendered.

On January 24, 1967, Dave Pearce filed suit against Louis B. Rogers, seeking to be declared owner of and seeking delivery of Riverside stock certificate no. 139, representing 288 shares of stock, which, though issued in Pearce’s name, was in Rogers’s possession.

On September 25, 1980, Pearce filed suit against Odom, seeking to be declared owner of and seeking delivery of Allied certificate no. S30084. Rogers intervened seeking to be declared owner of an undivided one-half interest in the Allied certificate and in other Allied stock issued in Pearce’s name. Rogers also sought a partition of all shares found to be jointly owned. The trial court declared Rogers to be the owner of 180 shares. He ordered a partition of certificate S30084 (288 shares) with 180 shares going to Rogers and 108 shares going to Pearce. Pearce appeals.

FACTS

Sometime prior to October, 1958, Dave Pearce was employed by Louis Rogers as a real estate salesman. During this time Pearce made two separate purchases of stock in Riverside Plantations, Inc. Riverside Plantations, Inc. was a corporation organized for the purpose of acquiring and developing two tracts of land located in Ascension and East Baton Rouge Parish known as Riverside Plantation and South-wood Plantation. Pearce and Rogers were among several investors who acquired an interest in Riverside. On April 18, 1958, Pearce was issued certificate no. 7 for 90 shares, and on June 27,1958, he was issued certificate no. 47 for 270 shares. Pearce made both purchases with his own funds, and both certificates were issued in his name.

Rogers and Pearce entered into a partnership in October of 1958 for the purpose of operating a real estate agency under the name “Rogers, Pearce Realty.” Mr. James W. Smith, the agency’s bookkeeper, testified that on that date he began to maintain the records of the firm on a partnership basis. Also, a partnership bank account was opened. However, no written, formal agreement was ever executed. Mr. Smith testified that the partnership was a fifty-fifty partnership.

On March 27, 1959, a check for Two Thousand Eight Hundred Eighty and no/100 ($2,880.00) Dollars was drawn on the partnership account and signed by Pearce and Smith made payable to “Riverside Plantations, Inc.” The check was issued in payment for 288 shares of stock in Riverside. On April 21,1959, Odom issued Riverside’s certificate no. 139 for 288 shares in Pearce’s name.

On April 25, 1960, a check in the amount of One Thousand Three Hundred Sixty-three and 64/100 ($1,363.64) Dollars was drawn on the partnership account and signed by Pearce and Rogers. This check represented a loan to Riverside, for which Riverside gave to Pearce & Rogers a promissory note as evidence of its indebtedness. In April of 1961, Riverside issued its certificate no. 212 for 136 shares of stock as payment of the note. This certificate was also issued in Pearce’s name.

All of the certificates were in Pearce’s possession except for certificate no. 139 which was kept in the office of Rogers, Pearce Realty and which has been in Rogers’s possession since the dissolution of the partnership.

Pearce and Rogers were also investors in another corporation known as Southwoods, Inc. Southwoods, Inc. was a corporation organized to acquire and develop a tract of land in East Baton Rouge Parish in the area where South Sherwood Forest Boulevard is presently located. Though the names are similar, Southwoods, Inc. has no relationship to Southwood Plantation (one of the two tracts of land acquired by Riverside). Rogers was obligated to purchase 25% of Southwoods, Inc., and Pearce was obligated for 10%.

On June 16, 1959, payment became due on the mortgage securing the purchase of the property by Southwoods, Inc. Each investor was to make a payment in proportion to his ownership interest in South-woods, Inc. Pearce was financially unable to pay his share. Rogers issued a personal check to Southwoods, Inc. for $8,984.50. As evidenced by a notation on the check, the total amount included $6,417.50 in payment of the amount due by Rogers, and $2,567.00, in payment of the amount due by Pearce.

The trial court found that, contrary to Pearce’s testimony, in consideration for the amount paid by Rogers for Pearce’s debt, Pearce orally agreed to transfer to Rogers an undivided one-half interest in all of the stock in Riverside Plantations, Inc., which stood in Pearce’s name. This agreement was never reduced to writing. The Rogers, Pearce Realty partnership dissolved in early 1962. On February 28, 1962, Pearce authorized certificate no. 47 (purchased by Pearce before the partnership was formed), for 270 shares, to be cancelled. Pearce then authorized the reissuance of that certificate in the following denominations:

Certificate no. 221 for 212 shares issued to Louis B. Rogers, dated February 28, 1962;
Certificate no. 222 for 58 shares reissued to Dave Pearce, dated February 28, 1962.

The number of shares reissued to Rogers (212), though reissued from the certificate purchased by Pearce prior to the formation of the partnership, represents one-half of the number of shares purchased with partnership funds.

Shares Purchased with Partnership Funds

Certificate no. 139 288 shares
Certificate no. 212 136 shares
Total 424 shares
V2 of 424 = 212

This amount (212) is the one-half owned by Rogers as an equal partner of all assets acquired by the partnership. The amount was owed and paid and is not a subject of dispute in this litigation. Rogers now claims a one-half interest in the number of shares purchased by Pearce prior to the formation of the partnership pursuant to the oral agreement of June 16, 1959, by which Rogers paid Pearce’s obligation to Southwoods, Inc. in return for one-half interest in all Riverside shares issued in Pearce’s name. The amount of shares purchased by Pearce prior to the formation of the partnership is 360. Rogers claims 180 of them.

In 1966, Riverside transferred all of its assets to Allied Chemical Corporation. Riverside and Allied agreed that for each share of Riverside stock transferred to Allied by the owner, Allied would issue a share of its stock in exchange. Pearce returned to Odom all of the Riverside stock that remained in his name, except for certificate no. 139, representing 288 shares, which was in Rogers’s possession. Pearce received Allied stock for the Riverside stock he returned. However, Allied’s certificate no. S30084, representing 288 shares, issued in Pearce’s name, which was prepared in anticipation of the return of Riverside certificate no. 139, representing 288 shares, has remained in the possession of Odom. Odom refuses to give to Pearce the Allied certificate until Pearce surrenders the Riverside certificate.

On January 24, 1967, Pearce filed suit against Rogers for a declaratory judgment praying that he be found the owner of Riverside certificate no. 139 (representing 288 shares). Pearce testified that after this suit was filed he began to receive dividend checks from Allied for the 288 shares along with dividends for his other shares. He stated that he assumed the Riverside stock had been delivered by Rogers, and so he abandoned that suit. He further stated that it was only in September, 1980 that he was informed that Rogers had not surrendered certificate no. 139. On September 25, 1980, Pearce again filed suit for declaratory judgment naming Odom as defendant and seeking to be declared the owner of Allied certificate no. S30084 (representing 288 shares of Allied stock). Rogers intervened in this second suit on November 14, 1980. In 1981, Rogers filed an answer and recon-ventional demand and an amended and supplemental answer and reconventional demand in the first suit. Pearce answered the reconventional demands. The two cases were consolidated for trial on March 8, 1981.

The trial judge allowed Pearce credit for the 212 shares previously received by Rogers and held that Rogers was entitled to an additional 180 shares. He ordered a partition in kind of Allied certificate no. S30084. Of the 288 shares represented by that certificate, he found that 180 were to go to Rogers and 108 were to go to Pearce.

Pearce perfected this appeal and alleges four specifications of error.

SPECIFICATIONS OF ERROR

1.The trial court erred in overruling Pearce's plea of prescription against Rogers’s claim.
2. The trial court erred in accepting Rogers’s testimony that Pearce had orally promised to transfer to him one-half of all Riverside stock purchased by Pearce prior to entering the partnership agreement.
3. The trial court erred in holding that Rogers had met the requirements of Civil Code art. 2277 which provides that oral contracts or agreements above $500.00 in value must be proved by at least one credible witness, and other corroborating evidence.
4. The trial court overlooked La.R.S. 12:624 which was in effect at that time which provided the only method of transferring certificates of shares.

Specifications of error 2, 3, and 4 will be discussed first.

SPECIFICATIONS OF ERROR NOS. 2,3, & 4

The trial judge found that Rogers had agreed to advance the sum of $2,567.00 on Pearce's behalf in payment of Pearce’s obligation due to South woods, Inc. The judge further found that in return for this advance, Pearce orally agreed to transfer to Rogers an undivided one-half interest in all of the stock in Riverside Plantations, Inc., which stood in Pearce’s name. This agreement was never reduced to writing.

Pearce argues that La.R.S. 12:624(A) provided the only method of transferring certificates of shares of stock. The jurisprudence is clear, however, that the Uniform Stock Transfer Act, La.R.S. 12:601 et seq., is not the exclusive means of transferring or evidencing ownership of stock. Succession of Dunham, 408 So.2d 888 (La.1981); Richard v. Foods and Services, Inc., 162 So.2d 213 (La.App. 1st Cir.1964), writ refused, 246 La. 347, 164 So.2d 351 (1964). Moreover, corporate stock is a movable and parol evidence may be admitted to establish a contract relative to it. McRoberts v. Hayes, 248 La. 676, 181 So.2d 390 (1965); Thomas v. Southdown Sugars, Inc., 95 So.2d 721 (La.App. Orl. Cir.1957), reversed on other grounds, 237 La. 245, 110 So.2d 738 (1959); La.Civ.Code art. 2277.

La.Civ.Code art. 2277 reads as follows:

Art. 2277. Proof of agreements concerning movables or money
“All agreements relative to movable property, and all contracts for the payment of money, where the value does not exceed five hundred dollars, which are not reduced to writing, may be proved by any other competent evidence; such contracts or agreements, above five hundred dollars in value, must be proved at least by one credible witness, and other corroborating circumstances.”

It is well settled that a party in the litigation may serve as his own “credible witness” in fulfilling the requirements of this article. Ville Platte Concrete v. Western Cas. & Sur., 399 So.2d 1320 (La.App. 3d Cir.1981); O’Rourke v. Tracy, 375 So.2d 747 (La.App. 4th Cir.1979). As to the requirement of “other corroborating circumstances,” only general corroboration is required. Independent proof of every detail of the agreement is not necessary. Samuels v. Firestone Tire & Rubber Co., 342 So.2d 661 (La.1977); Ville Platte Concrete v. Western Cas. & Sur., supra.

Undoubtedly, the trial judge accepted Rogers as a credible witness and believed his testimony that an oral agreement had been made, as opposed to the testimony of Pearce that no such agreement had been made.

The trial judge did not enumerate the factors he considered as “corroborating circumstances” to support Rogers’s testimony. We can surmise, however, from the record that he considered the uncontradicted evidence and testimony that Rogers did pay out of his personal funds a debt owed by Pearce. The amount paid for Pearce was carefully noted on the check issued by Rogers. Mr. Smith testified that Rogers and Pearce seldom reduced their agreements to writing, so not entering into a written contract would not be unusual. Rogers knew that Pearce was low on personal funds. For him to agree to accept stock in lieu of payment in cash would be a logical decision. Also, Rogers retained actual physical possession of Riverside stock certificate no. 139.

The question of whether the evidence offered by the plaintiff corroborates his claim is a finding to be made by the trier of fact, and his decision is not subject to reversal unless it is clearly wrong. The reviewing court must give great weight to the factual conclusions of the trier of fact, and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed, even though the appellate court may feel that its own evaluations and inferences are reasonable. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Canter v. Koehring Company, 283 So.2d 716 (La.1973); O’Rourke v. Tracy, supra.

The trial judge was satisfied with the sufficiency of the evidence establishing the agreement. We cannot say he was clearly wrong.

SPECIFICATION OF ERROR NO. 1

Pearce argues that Rogers’s claim is a personal action which has prescribed by ten years. What Rogers sought, however, was to be declared owner of an undivided one-half interest in certain stock and to have Allied’s stock certificate partitioned in kind to reflect his ownership interest. See Succession of Heckert, 160 So.2d 375 (La.App. 4th Cir.1964).

La.Civ.Code art. 1304 reads:

“The action of partition can not be prescribed against, as long as the thing remains in common, and such community is acknowledged or proved.
Thus, though coheirs have enjoyed their hereditary effects in common for a hundred years and more, without making a division, any of them can, at any time, sue for a partition.”

Once it was established that Rogers did own an undivided interest in the stock, Rogers had a right to partition that stock. Clearly, this right to claim a partition is imprescriptible. La.Civ.Code art. 1304.

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

AFFIRMED.

      . Allied certificate no. S300S4 represents 288 shares. Rogers claims 180 shares which represents one-half of all shares owned by Pearce prior to the formation of the partnership (totall-ing 360). The trial judge awarded Rogers 180 shares from a partition of Allied certificate no. S30084. The remaining 108 shares of the certificate were awarded to Pearce.

      . La.R.S. 12:624 was repealed by Section 6 of Acts 1978, No. 165. See now La.R.S. 10:8-309.
      La.R.S. 12:624(A) read as follows:
      § 624. How title to certificates and shares may be transferred
      “A. Title to a certificate and to the shares represented thereby can be transferred only:
      (1) By delivery of the certificate indorsed either in blank or to a specified person by the person appearing by the certificate to be the owner of the shares represented thereby, or
      (2) By delivery of the certificate and a separate document containing a written assignment of the certificate or a power of attorney to sell, assign, or transfer the same or the shares represented thereby, signed by the person appearing by the certificate to be the owner of the shares represented thereby. Such assignment or power of attorney may be either in blank or to a specified person.”

      . La.Civ.Code art. 3544 reads as follows:
      Art. 3544. Personal actions, general rule
      “In general, all personal actions, except those before enumerated, are prescribed by ten years.”