author: CULPEPPER, Judge.

text:
    Curley Everton VICTORIAN, Plaintiff & Appellant, v. Lucille Lemelle VICTORIAN, et al., Defendants & Appellees.
    No. 8581.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 1982.

      Ardoin & Daigle, J. Winston Ardoin, Eunice, for plaintiff & appellant.
    Donald Soileau, Mamou, for defendants & appellees.
    Before CULPEPPER, FORET and CUTRER, JJ.
   CULPEPPER, Judge.

This is a suit to annul a conveyance of 26 acres of land. The plaintiff, Curley Ever-ton Victorian, alleges that on April 14,1975 he executed an instrument entitled “CASH SALE DEED” whereby he conveyed to his younger brother, Clargia Victorian, 26 acres of land in Evangeline Parish for a consideration stated as follows: “This sale is made for the consideration of the sum of (no money paid) as considerations. Vendee agrees to take care of Vendor’s person and furnish him a place to stay until Vendor’s death.” Plaintiff alleges that he is still alive but that Clargia died on February 3, 1980, thereby making it impossible for Clar-gia to take care of plaintiff’s person until plaintiff’s death, and that therefore the condition upon which the transfer of title was based cannot occur and the conveyance is null and void. The defendants are respectively the widow and two children of Clargia Victorian.

Defendants filed an answer denying that the sale is void for lack of consideration, and affirmatively alleging that the sale was supported by sufficient consideration consisting of caring for the plaintiff for many years. In the alternative, and in the event the court should find plaintiff is entitled to some relief from the sale, the widow of the deceased filed a reconventional demand against the plaintiff for her services in furnishing him with care, housing, food, cooking, washing, etc. for many years, even prior to 1965, which services she alleges are valued at $50 per day.

The trial judge held that the sale was actually an onerous donation, which required that Clargia or his wife or heirs care for plaintiff until his death, but that since plaintiff moved out of the widow’s house immediately after Clargia’s death and refused the offer of the widow to care for plaintiff, the obligation of the widow and heirs to care for the plaintiff was fulfilled, and the obligation was satisfied. From a judgment rejecting his demands to annul the sale, plaintiff appeals.

The substantial issues presented on appeal are: (1) Was the conveyance of the 26 acres an onerous and/or a remunerative donation? (2) If it was an onerous donation in whole or in part, was the obligation of Clargia Victorian strictly personal as to the obligor and was it heritable by the obligor’s heirs? (3) If the conveyance of the 26 acres was both a remunerative and an onerous donation, does the evidence show sufficient consideration was received by the vendor?

FACTS

The facts show that the plaintiff, Curley Everton Victorian, is now 94 years of age. He was 88 at the time of the 1975 conveyance. For many years Curley lived in the same home with his younger brother, Clar-gia Victorian, and Clargia’s wife, Lucille. Plaintiff testified he had lived with his brother for about 40 years. Lucille testified plaintiff had lived with them since 1953. She explained that before 1953 she and her husband lived in another house and rented the farm from plaintiff to whom they paid rent of one-third of the crop. Lucille testified that even before plaintiff moved into the same home with them in 1953, she had cooked and washed since 1943 for plaintiff, who then lived in a nearby house.

After plaintiff moved into the home with Clargia and Lucille in about 1953, Lucille cooked, washed clothes, cleaned house and generally took care of plaintiff. In 1965, Clargia became crippled and could no longer work the farm. They paid no rent to Cur-ley after 1965, but Lucille testified she and Clargia continued to take care of him. According to Lucille’s testimony, the three of them pooled their meager incomes, Curley’s welfare check of approximately $100 per month and Lucille’s and Clargia’s checks of about $70 per month, and they paid for food, clothes, utilities and medicine, and had a small amount of cash left over for each at the end of each month.

In 1975 Curley was hospitalized in Opel-ousas for surgery. He testified that on his discharge from the hospital he was faced with the necessity of having to go to the “Old Folks Home”, but that Clargia came to the hospital and took him back home and agreed to take care of him for the rest of his life, if Curley would convey to Clargia the 26 acres on which the home was located. Curley testified he agreed to “will” the 26 acres to Clargia, it being his understanding that title would not pass until Curley’s death. On April 14, 1975, Curley executed the “Cash Sale Deed” conveying to Clargia Victorian, husband of Lucille Lemelle, the 26 acres in question for the consideration stated to be: “No money paid. As consideration Vendee agrees to take care of Vendor’s person and furnish him a place to stay until Vendor’s death.”

The evidence shows that after the execution of the 1975 conveyance plaintiff continued to live with Clargia and Lucille in the house on the 26 acres until Clargia died on February 3, 1980. Lucille testified that after Curley, then 88 years of age, returned from the hospital in 1975, he required more care. She says he was “like a baby”, who had to be fed, dressed, bathed, given medicine, etc. He was badly crippled with arthritis, in addition to general infirmities of old age.

Three days after Clargia died on February 3, 1980, plaintiff moved out of the house. He testified that after Clargia died Lucille pushed him and hit him on the arms, so he left. Lucille denied that there was any disagreement or that she ever mistreated plaintiff in any way. The trial judge found there was only a minor misunderstanding, at most, and that it was not sufficient for plaintiff to refuse Lucille’s continued care. Lucille went to see an attorney for advice about the status of the title to the 26 acres. On March 11,1980, this attorney wrote a letter to plaintiff advising that Lucille was ready, willing and able to take care of him for the remainder of his life. Nevertheless, plaintiff did not return to Lucille’s home.

In April of 1980, Lucille sold the 26 acres for a consideration of about $1,100 per acre, a total of about $28,000. She testified she used the proceeds of the sale to pay Clar-gia’s funeral expenses and other debts. At the trial in January of 1981, Lucille testified she was living in a rented house where she had ample room to take care of Curley, and that she was still ready, willing and able to do so.

ONEROUS AND/OR REMUNERATIVE DONATION

The first issue is whether the conveyance was an onerous and/or a remunerative donation. The following articles of our Civil Code are applicable:

“Art. 1523. Gratuitous, onerous and remunerative donations; definitions. There are three kinds of donations inter vivos:
The donation purely gratuitous, or that which is made without condition and merely from liberality;
The onerous donation, or that which is burdened with charges imposed on the donee;
The remunerative donation, or that the object of which is to recompense for services rendered.
Art. 1524. Onerous donation. The onerous donation is not a real donation, if the value of the object given does not manifestly exceed that of the charges imposed on the donee.
Art. 1525. Remunerative donation. The remunerative donation is not a real donation, if the value of the services to be recompensed thereby being appreciated in money, should be little inferior to that of the gift.
Art. 1526. Onerous and remunerative donations, when rules applicable. In consequence, the rules peculiar to donations inter vivos do not apply to onerous and remunerative donations, except when the value of the object given exceeds by one-half that of the charges or of the services.”

The trial judge reasoned that the donation was onerous, not remunerative, because the instrument, in describing the consideration, states only that the Vendee agrees to take care of Vendor until Vendor’s death. The instrument does not expressly state that part of the consideration was to recompense the Vendee for services rendered in caring for the Vendor before the execution of the conveyance. We disagree with this construction of the transaction. It is our view that the donation was both remunerative and onerous.

Since this is a remunerative or an onerous donation, not a purely gratuitous donation, the rules peculiar to donations inter vivos do not apply, unless the value of the object given exceeds by one-half that of the services rendered. LSA-C.C. Article 1526. Although there is no direct evidence as to the exact value of the services rendered to plaintiff by Clargia and his wife, the trial judge held, and the record clearly shows, these services exceeded by one-half the value of the land conveyed. Thus, the rules peculiar to donations inter vivos do not apply. The applicable rules are those pertaining to contracts in general and to sales in particular.

LSA-C.C.P. Article 2276 states the general rule that parol evidence shall not be admitted to vary the terms of a written instrument. However, a well established jurisprudential exception to this rule is that in contracts of sale parol evidence is admissible to show the true consideration, although completely different than that recited in the instrument. Citizens Bank & Trust Company v. Willis, 183 La. 127, 162 So. 822 (1935); Warden v. Porter, 228 La. 27, 81 So.2d 707 (1955); Ryals v. Ryals, 199 So. 481 (La.App.2d Cir. 1940); Bash v. Sims, 210 So.2d 180 (La.App.2d Cir. 1968); Quinn v. Stafford, 357 So.2d 628 (La.App. 1st Cir. 1978).

Applying this rule to the present case, the parol evidence, which was admitted without objection, may be considered to show that the true consideration was not only the value of the services rendered by the donee to the donor after the 1975 conveyance, but also the value of the services rendered by the donee to the donor before the 1975 instrument. As to those services rendered before the execution of the 1975 instrument, the donation was remunerative, to recompense the donee. As to those services rendered after the 1975 instrument, the donation was onerous, in the sense that it required the donee to take care of the donor for the rest of the donor’s life.

The next issue is whether the onerous obligation of the donee, to take care of the donor for the remainder of donor’s life after 1975, was strictly personal as to the donee-obligor. The trial judge held the do-nee’s obligation to care for the donor was not strictly personal as to the donee-obligor and was heritable by the donee-obligor’s heirs. On appeal, plaintiff argues persuasively that the obligation was strictly personal, both as to the obligee and as to the obligor, and that it was not heritable. We agree.

The applicable statutory law is set forth in the following articles of our Civil Code:

“Art. 1997. Definition of strictly personal, heritable, and real obligations.
An obligation is strictly personal, when none but the obligee can enforce the performance, or when it can be enforced only against the obligor.
It is heritable when the heirs and assigns of the one party may enforce the performance against the heirs of the other. It is real when it is attached to immovable property, and passes with it into whatever hands it may come, without making the third possessor personally responsible.”
“Art. 1998. Personal and heritable character of obligations. An obligation may be personal as to the obligee, and heritable as to the obligor, and it may in like manner be heritable as to the obligee, and personal as to the obligor.”
“Art. 1999. Presumption of heritability of obligations. Every obligation shall be deemed to be heritable as to both parties, unless the contrary be specially expressed, or necessarily implied from the nature of the contract.”
“Art. 2000. Obligations personal on part of obligor. The obligation shall be presumed to be personal on the part of the obligor, whenever, in a contract to do, he undertakes to perform any thing that requires his personal skill or attention; in this case, if that, which was to be done, was not solely and exclusively for the use or gratification of the obligee, the obligation, although personal as to the obligor, will be heritable against the heirs of the obligee for the equivalent to be paid or given for that which was to be done.” “Art. 2001. Obligations personal to obli-gee. The obligation shall be presumed to be personal as to the obligee, in a contract to do or to give, when that which was to be done or given, was exclusively for the personal gratification of the obli-gee, and could produce no benefit to his heirs.”
“Art. 2002. Liability of heirs in case of death of obligor before performance of personal obligation. In case of obligations purely personal as to the obligor, if he has received an equivalent that can be appreciated in money as a consideration, but dies before performance of his obligation, his heirs may be obliged to restore it or its value.”
“Art. 2003. Rights of heirs in case of death of personal obligee before performance. In like manner, if the obligation be purely personal as to the obligee who dies before performance, his heirs may recover from the obligor the value of any equivalent he may have received.”

In support of his contention that Clargia’s obligation to care for Curley was strictly personal as to the obligor, plaintiff calls attention to his testimony that he intended that only his brother, Clargia, would care for him until his death. He says he did not intend that Clargia’s wife or daughters could care for him if Clargia died. Plaintiff argues that since Clargia died before he could perform his personal obligation, the contract is terminated and is a nullity for lack of cause. Plaintiff cites several cases for the rule that a contract may be dissolved for nonperformance of its conditions or failure of cause or consideration. Moore v. Sucher, 234 La. 1068, 102 So.2d 459 (1958) and the Code articles and cases cited therein. Plaintiff also cites Richardson v. Cole, 173 So.2d 336 (La.App.2d Cir. 1965) and Acosta v. Cole, 178 So.2d 456 (La.App. 1st Cir. 1965), writ refused 248 La. 432, 433, 179 So.2d 273, 274, each of which involved a contract under which the plaintiff paid in advance for a long series of dance lessons and then became too ill to take the lessons and sued for dissolution of the contract. The court held the obligation to give the dance lessons was personal to the plaintiff-obligee, and that under LSA-C.C. Article 2003, which provides that an obligation personal to the obligee terminates on the death of the obligee, the inability to take the dance lessons was the same as if plaintiff died, resulting in the termination of the contract and allowing the plaintiff to recover for the unearned lessons.

Under Article 2001, quoted above, it is clear that the obligation to care for the donor until his death was strictly personal to the donor, since it was exclusively for the donor’s benefit and could produce no benefit to his heirs. There is a question as to whether this obligation was also personal as to the donee-obligor and whether it was heritable as to the obligor. The trial judge held that the obligation to take care of the donor for the rest of his life was not personal as to the donee and was heritable by his heirs. We do not agree with this analysis.

On the question of whether the obligation was strictly personal as to the obligor, Article 2000, quoted above, provides that an obligation is presumed to be personal on the part of the obligor in a contract to do that requires his personal attention. Plaintiff testified he intended that he be cared for only by his brother, Clargia, and not by Clargia’s widow or heirs. This testimony is corroborated by the fact that three days after Clargia died Curley moved out of the home. Although the evidence shows that Clargia’s wife did all of the cooking, washing, house cleaning and tending to the personal needs of the plaintiff, these services could have been performed by another person. Plaintiff wanted more from his brother than the performance of these services. He wanted his brother’s personal care and attention in his brother’s home. Choosing a person to care for you for the rest of your life can be a highly personal matter, as it was in this case. We think the obligation to care for Curley and furnish him a place to live for the rest of his life, was strictly personal as to Clargia.

Moreover, we conclude the obligation was not heritable as to Clargia’s heirs. Article 1999, quoted above, states the general rule that obligations are deemed to be heritable as to both parties, unless the contrary be specially expressed or necessarily implied from the nature of the contract. Article 2000, quoted above, provides that where an obligation to do is strictly personal as to the obligor “if that, which was to be done, was not solely and exclusively for the use or gratification of the obligee, the obligation, although personal as to the obligor, will be heritable against the heirs of the obligee for the equivalent to be paid or given for that which was to be done.” This last quoted portion of Article 2000 does not apply in the present case, since that which was to be done was solely for the gratification of the obligee, who is still alive. Under the facts of this case, we find it was “necessarily implied from the nature of the contract”, Article 1999, that the obligation was not heritable as to the obligor.

Having decided that the obligation to take care of the donor for the rest of his life was strictly personal and not heritable as to both the obligee and the obligor, the next issue is the effect of the death of the obli-gor before completion of performance of his obligation. LSA-C.C. Articles 2002 and 2003 provide as follows:

“Art. 2002. Death of obligor before performance of personal obligation, liability of heirs
Art. 2002. In case of obligations purely personal as to the obligor, if he have received an equivalent that can be appreciated in money as a consideration, but dies before performance of his obligation, his heirs may be obliged to restore it or its value.
History and Text of Former Codes
RCC 1870, Art. 2002:
(Errors in English translation of French text — the word “ob-ligor" should be “obligee" and the words “his obligation” should be “the obligation.”)
(Projot, p. 270. Addition adopl-cd; no comment.)
CC 1808: No corres|>omling article,
CN 1804: No corresponding article.
CC 1825, Art. 1997: Same as above.”
“Art. 2003. Death of personal obligee before performance, rights of heirs
Art. 2003. In like manner, if the obligation be purely personal as to the obli-gee who dies before performance, his heirs may recover from the obligor the value of any equivalent he may have received.
History and Text of Former Codes
CC 1825, Art. 1998: Same as CC 1808: No corresponding article, above.
(Projet, p. 270. Addition CN 1804: No corresponding article, adopted; no comment.)”

We recognize the notation under LSA-C.C. Article 2002 that there are errors in the English translation of the French text, i.e., that the word “obligor” should be “obli-gee” and the words “his obligation” should be “the obligation”. However, regardless of whether these are “errors” in translation, we find that Article 2002, as first adopted in 1825 and remaining unchanged until today, can be construed literally, as explained below.

Article 2002 as written could be applied easily to a situation where the obligor dies before performance of any portion of his personal obligation. In that situation, the obligor’s heirs would be obliged to restore to the obligee all consideration or its value which the obligor had received from the obligee. Thus, in the present case, if Clar-gia, the obligor, had not performed any services in taking care of Curley, Article 2002 would appear to require that Clargia’s widow and heirs return to Curley the 26 acres.

The present case is complicated by the fact that Clargia, the obligor, did not die until after partial performance by him. Clargia, the obligor, took care of Curley, the obligee, for approximately six years before Clargia died. The above quoted Articles of the Civil Code do not expressly answer the question of the rights and obligations of the heirs of the obligor who dies after partial performance of an obligation personal as to the obligor. However, Alain A. Levasseur, Précis In Conventional Obligations, A Civil Code Analysis, at page 79, gives the following helpful discussion in stating general principles applicable in ease of fortuitous nonperformance:

“(a) Principle: “Res perit debitori”.
In the situation where one obligation can no longer be performed because of fortuitous event, the other obligation will also become extinct. The release of one party leads to the release of the other. This solution can be explained by the theory of cause. The risks are, therefore, in a sense, for the party whose performance has become impossible because of fortuitous event.
Example: the patron of a theater is entitled to the reimbursement of his ticket if the theater cannot put on the show as a result of the death of an actor.
This principle (not expressly stated in the code) can be induced from a series of code articles: example: LCC 2697; 2759; 2760; 2879.
This principle is applicable to all synal-lagmatic contracts whether they create obligations to do or not to do or obligations to give a thing in kind not yet singled out by the time the fortuitous event occurs. In addition, the obligation must be one of result [if the obligation is one of means, either the obligor has been diligent and there has been performance or he has made a mistake and he will be held liable].
Where there is impossibility of performance by the obligor, the contract is extinguished of right without intervention of the court. Should the court be called upon, it can only recognize the failure of performance of one obligation and the correlative extinction of the other obligation: example: LCC 2697, first sentence.
Where the fortuitous event has caused a partial impossibility of performance, the court will decide whether the dissolution of the contract should be total or partial only; where the dissolution is partial only, the creditor will have to perform part of his own obligation: example: LCC 2697, second sentence. As a result, the obligations of the parties are restructured, re-balanced.”

Particularly applicable to the present case is the last paragraph of the above quotation. The fortuitous event, Clargia’s death, caused only a partial impossibility of performance. In this situation, the suggested rule is that the court should decide whether the dissolution of the contract should be total or only partial. Under the circumstances of the present case, we think the dissolution of the contract should be partial only, since the obligor had taken care of the obligee for approximately six years before the obligor died. As a result, an effort should be made by the court to restructure or re-balance the obligations of the parties, so as to place them as nearly as possible in equal positions. In Richardson v. Cole, supra, and in Acosta v. Cole, supra, this same rationale was applied by allowing the defendant to keep the fees for the dancing lessons already furnished but requiring the defendant to return to plaintiff the fees for the lessons which plaintiff was unable to take after she became disabled.

In the present case, the solution requires that some value be given to the services performed by Clargia in taking care of Cur-ley from the time of the conveyance of the 26 acres until the time of Clargia’s death, a period of about six years. There is no evidence in the record to show the exact value of these services. However, Clargia’s services in caring for his brother for these six years clearly had substantial value. In the present case, we need not be too precise in determining the exact value, because the value of these services, which constituted an onerous obligation of the donation, can be added to the value of the services rendered by Clargia and his wife before the 1975 conveyance, which services were those for which the donation was remunerative. The total value of the services rendered before and after the 1975 donation is clearly as much or more than the $28,000 value of the 26 acres. Thus, the 1975 donation is valid.

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

AFFIRMED.


source: Caselaw Access Project

author: WATKINS, Judge.

license: Public Domain

text:
    G & T SWINE FARMS v. CHURCHILL & THIBAUT, INC.
    No. 15055.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 3, 1982.
    John R. Keogh, Baton Rouge, for applicant.
    Glynn Long, Donaldsonville, for respondents.
    Before COVINGTON, COLE and WATKINS, JJ.
   WATKINS, Judge.

This is an action for damages connected with the alleged death of swine who allegedly consumed corn purchased from defendants. Defendants obtained an order for trial by jury, and posted a jury bond in the sum of $3,000.00. The bond through obvious error cited LSA-R.S. 13:4522, rather than LSA-R.S. 13:3050 as being the statute governing the furnishing of the bond. We assume that the bond will be corrected to cite the proper statute, as it must be if this judgment is to be effective. Jury trial was set for December 16, 17, and 18, 1981. The clerk of court sought to require defendants to furnish the sum of $980.00 to cover the expenses attendant upon selecting and summoning the jury venire. Defendants sought a writ of mandamus in the trial court to order the clerk of court to proceed with the summoning of the jury without furnishing of the sum of $980.00 as sought by the clerk of court. The mandamus was denied, and defendants applied to this court for supervisory relief. We granted alternative writs, which we now make peremptory.

The trial court in denying the writ of mandamus stated in written reasons that a jury bond covers only the costs of transportation and per diem of jurors in civil cases, and does not provide expenses of selecting and summoning a civil jury venire. The costs of selecting and summoning the jury venire, the trial court has indicated, is a general cost of court, for which the clerk of court may demand advance cash payment under LSA-R.S. 13:843. In other words, under the analysis adopted by the trial court a civil jury bond furnished under LSA-R.S. 13:3050, which regulates jury bonds in civil eases, covers only transportation and per diem, and does not cover costs of selecting and summoning civil jurors, those costs being covered by LSA-R.S. 13:843.

The position adopted by the trial court overlooks the clear wording of LSA-R.S. 13:3050, as amended by Louisiana Act. No. 805 of 1981. That statute amends R.S. 13:3050 to read as follows:

“In all civil cases in which a jury is prayed for and allowed, the party praying for the jury shall give bond in favor of the parish for such amount as may be determined by the judge to cover the cost of the jury, which cost shall be taxed as provided for in Louisiana Code of Civil Procedure Articles 1920 and 2164. No jury shall be ordered in any civil case unless the bond is given. The clerk of court shall give immediate notice by certified mail to all parties of the signing of the order allowing the trial by jury. The party who prayed for the trial by jury shall give the required bond within sixty days of the mailing of the notice by the clerk of court. The party requesting trial by jury may not be compelled to post a cash bond prior to trial. If the bond is not given within such time, any party may move, for an order vacating the original order. Upon issuance of an order vacating the order for trial by jury, the trial shall proceed without a jury. When a trial by jury in a civil case is prayed for and allowed or one is ordered by the judge, the judge shall, on application of either party to the cause, in case there be no venire of jurors from which to select a jury, order the commission to draw such number of jurors as he may deem necessary to try and determine the cause, drawing to be made in accordance with the forms prescribed by R.S. 13:3044.”

The bond covers “the cost of the jury”. No distinction is made between costs of selection and summoning the jury and expenses of transportation and per diem for the jury. To read such a distinction into the statute, which is clear and succinct, would be to supplant our judgment and will for that of the legislature, or to find an ambiguity to exist in a statute which is unambiguous. Even if it were possible to adopt the analysis that some costs of a civil jury, of an unspecified nature, formerly fell under R.S. 13:843, and other jury costs of an equally unspecified nature fell under R.S. 13:3050, such an analysis is finally precluded by the enactment of the amendment to R.S. 13:3050 by Act No. 805 of 1981, as Act No. 805 repeals “[a]ll laws or parts of laws in conflict herewith. ... ” Thus R.S. 13:3050 now furnishes the sole binding enactment of the legislature with respect to costs of a civil jury, and that statute indicates that the bond covers all costs. Furthermore, that statute provides a party seeking a trial by jury cannot be compelled to furnish a cash bond.

The result we reach herein is mandated not only by statute, but by the chain of logic that must flow from the holding of the Louisiana Supreme Court in Meyers v. Basso, 398 So.2d 1026 (La.1981). The Court there held that under LSA-R.S. 13:843, only the plaintiff could be required to furnish advance court costs, and that the defendant would be free from furnishing advance costs of court. If we were to adopt the analysis that R.S. 13:843 applied to costs of selecting and summoning a jury panel in civil cases, then in the present case plaintiff would be required to furnish these costs, although defendant in the present case is responsible for the jury’s being summoned. Such a result is both anomalous and unjust.

In the present case it is possible that the jury bond in the sum of $3,000.00 is not adequate to cover all jury costs. If that is the case, the trial court may in its discretion increase the amount of the bond.

Accordingly, the writs of prohibition and mandamus issued herein are made peremptory, all costs of the writ application to await final disposition of the matter.

WRITS MADE PEREMPTORY.


author: McBRIDE, Judge.

text:
    Dupree T. KINCHEN, Jr. v. Gregory RIGAMER, et al.
    No. 11914.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 10, 1982.
    M. H. Gertler, Gertler & Gertler, New Orleans, and David M. Packard, Metairie, for plaintiff-appellee.
    John J. Hainkel, Jr., William A. Porteous, Porteous, Toledano, Hainkel & Johnson, New Orleans, for defendants-appellants.
    Before SAMUEL, BAILES and McBRIDE, JJ.
   McBRIDE, Judge.

This action arises out of an automobile truck collision which occurred on June 20, 1977 at a semaphore light controlled intersection at Howard Avenue and Magazine Street in New Orleans between Dupree Kinchen Jr., plaintiff and defendant in re-eonverition, and Gregory Rigamer, defendant and plaintiff in reconvention, both drivers contending that they had the green light. Also made parties were Southern Farm Bureau Casualty Ins. Co., insurer of the Rigamer automobile as a co-defendant. Southern Farm Bureau reconvened on behalf of Rigamer and joined Evans Cooperage Company, Inc., Kinchen’s employer and owner of the truck, under the doctrine of respondeat superior.

Evans Cooperage Company Inc. filed an Exception of Prescription which was maintained.

After trial on the merits, judgment was rendered in favor of plaintiff, Dupree Kin-chen Jr. and against Gregory Rigamer and Southern Farm Bureau Casualty Ins. Co., in solido, in the sum of Eight Thousand, Eight Hundred and 8%oo ($8,880.00) Dollars with legal interest from demand and fixing experts’ fees and taxing same as costs.

Defendant-appellants contend that the trial court erred in its factual finding, and alternatively, that the award is excessive. We disagree.

Kinchen was operating a cab with a forty foot trailer traveling uptown on Magazine Street, a one way street. Mr. Rigamer was operating an Oldsmobile traveling toward the Mississippi River on Howard Avenue, also a one way street. The intersection of Magazine and Howard is a busy intersection and traffic flow is controlled by a green-yellow-red semiphore light.

Our appreciation of the facts as found in the record are that a taxi cab containing two persons, Trenia Brue and Warreneia Horton, was stopped in the right lane of Howard Avenue for a red light and behind the taxi was an automobile occupied by Edward Keller and his sister, Alicyn Keller. The Rigamer automobile was to the left of these two vehicles. Observing the traffic conditions and the light were two pedestrians, Mr. Ed Schmidt on Magazine and Mr. Michael Dupree on Howard Avenue.

Plaintiff Kinchen and Ed Schmidt all testified that the light was green for traffic on Magazine. Edward and Alicyn Keller and Michael Dupree testified that the light was red for traffic on Howard Avenue.

Warreneia Horton and Trenia Brue testified that the light had turned green for Howard Avenue traffic just before the collision and that both Rigamer and Kinchen were traveling in the same direction. Ri-gamer had no recollection of the accident.

We agree with the trial judge in his assessment of the facts and his findings will not be disturbed. Canter v. Koehring Co., 283 So.2d 716 (La.1973).

Defendant-Appellants further contend that Kinchen skid marks of 99 feet indicate that Kinchen was traveling in excess of 25 miles per hour. We are urged to take Judicial Notice of speed and stopping distance charts contained in Blashfield Automobile Law and Practice, Vol. 1, Sec. 3.3 and 14 Tulane Law Review 503. The charts were not introduced into evidence, nor was any expert produced. We cannot take this liberty. Guidry v. Grain Dealers Mutual Insurance Company, 193 So.2d 873 (La.App. 3rd Cir. 1967).

Appellants submit that the injury allegedly sustained by Mr. Kinchen does not warrant the award by the trial court. Although the accident occurred on June 20, 1977, the plaintiff did not seek medical attention until he saw Dr. Borgman on September 2, 1977. Dr. Borgman referred the plaintiff to Dr. Stokes, an orthopedic physician on September 7, 1977 who treated through December 2, 1977. Dr. Stokes testified that, “I found nothing abnormal in this patient on any of the examinations I performed”. Dr. Stokes referred the plaintiff to neurosurgeon, Dr. Nadell, who diagnosed his condition as a costochondral separation. Finally, the plaintiff was treated by Dr. Adatto who diagnosed the same condition in April of 1979.

Mr. Kinchen testified' that the injury caused him pain during the mornings and upon attempting strenuous labor. He complained of “popping” noises in his chest which had not ceased, even up to the point of trial. The pain limited him in his occupation and also recreational activities such as swimming and jogging for almost two years. Although Dr. Stokes was unable to pinpoint the plaintiff’s problem, the Costo-chondral separation was noted by Dr. Na-dell in December of 1977 and thereafter corroborated by Dr. Adatto in April of 1979. Dr. Adatto prescribed steroid injections which over a period of time had a favorable effect on the plaintiff, thereby confirming the diagnosis of costochondral separation.

We feel that the record in the instant case provides sufficient evidence, both lay and expert, to sustain the trial court’s award of $8,880.00. The trier of the fact has the advantage of seeing the witnesses and evaluating their testimony. Boswell v. Roy O. Martin Lumber Co., 363 So.2d 506 (La.1978).

We can find no clear and convincing evidence of abuse of discretion by the trial court regarding quantum. Coco v. Winston Industries, 341 So.2d 332 (La.1977).

The decision of the trial court is affirmed.

AFFIRMED.


author: SCHOTT, Judge.

text:
    Succession of Mrs. Flora Mary, Widow of Walter P. VILLERE, Sr.
    No. 12518.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 19, 1982.

      Jon A. Gegenheimer, Beoubay & Gegen-heimer, Gretna, for appellant.
    A. D. Freeman, Satterlee, Mestayer & Freeman, New Orleans, for opponent-appel-lee (Bethany Villere Tucker, Natural Tutrix of the minor, Walter P. Villere, III).
    Before REDMANN, SCHOTT and CIAC-CIO, JJ.
   SCHOTT, Judge.

This case comes to us on a judgment on an opposition by Bethany Sancton Villere, natural tutrix of the minor, Walter P. Vil-lere III (hereinafter opponent) to the tableau of distribution filed by the executor of the Succession of Mrs. Flora Mary Villere. The judgment also deals with opponent’s rule to traverse the executor’s descriptive list of the succession’s assets. Opponent’s adversary is decedent’s daughter, Mrs. Flora Villere Webber (hereinafter Webber). Webber has appealed from the judgment and opponent has answered the appeal.

Issues on appeal include the ownership of a Mississippi bank account, the liability of the succession on notes payable to Webber (but found in decedent’s bank box), with attendant questions of prescription and the admissibility of parol evidence, the right of the legatee of rental property to rents collected since the death of decedent, whether certain items were erroneously omitted from the descriptive list, the entitlement of executor’s predecessor to an agreed upon fee considering subsequent disclosures of misconduct on the part of the predecessor and her liability for a penalty because of her conduct, and whether the federal estate tax should be apportioned between opponent and Webber.

Flora Mary Villere died on March 14, 1974, and was survived by her daughter Flora Villere Webber and her grandson Walter P. Villere III, issue of the marriage between decedent’s predeceased son and his wife, Bethany Sancton Villere, opponent. In her will decedent divided her property equally between her daughter and grandson except for an extra bequest of rental property at 725 Ursulines Avenue in New Orleans to her daughter. She also named her daughter as testamentary executrix of her succession.

On October 15, 1974, seven months after Webber qualified as executrix, opponent moved to remove her on grounds that she had entered decedent’s bank box just after her death and before the box was “frozen” and removed its contents, she (Webber) had failed to secure a depositary for the succession’s valuables and she had failed to file a descriptive list. Opponent also alleged that Webber had used succession funds to pay off her cousin’s bank loan. This motion was denied on February 6, 1975, but in the meantime Webber filed a descriptive list of succession assets.

The descriptive list provoked a fresh rule by opponent to remove Webber as executrix on the ground that she was “guilty of a breach of the fiduciary relationship” by listing as liabilities of the succession two demand notes dated May 16, 1969, and January 20, 1970, for $15,000 each drawn by decedent to Webber’s order. According to opponent this list acknowledged a credit to the principal on the notes of $1,484.63 and an interest payment of $1,000 on January 5, 1974. Opponent alleged that said payments were not made so that the notes had prescribed and that Webber demonstrated a conflict of interests by acknowledging the succession’s liability for the notes. Opponent also pled an absence of consideration for the notes.

Opponent further charged Webber with mismanagement because she proposed to pay an excessive fee to the succession’s attorney in the amount of $22,500.00, and an executrix’s fee to herself of $10,809.30 to which she was not entitled because of mismanagement. Finally, she charged Webber with holding on to succession funds rather than accounting for them and holding them in a succession account.

In her petition opponent also sought to traverse the descriptive list because of its failure to list as succession assets certain stock certificates in Hunt Enterprises, Inc. and a number of bank accounts including one at the Hancock Bank in Bay St. Louis, Mississippi. On February 6, 1975, the trial court dismissed the rule to remove Webber but did not act on the rule to traverse.

On March 25, 1975, a judgment was signed, with the consent of opponent and Webber, accepting Webber’s resignation as executrix, appointing Francis C. Doyle executor in her place, appointing opponent’s and Webber’s attorneys as co-attorneys for the new executor, fixing attorney fees at $22,500.00 to be divided between the attorneys, and fixing the executor’s fee at $10,-809.30 to be divided between Webber and the new executor.

On December 2, 1975, the executor obtained an exparte order authorizing him to deliver to Webber her legacy of 725 Ursulines Avenue and the net proceeds of $8,819.90 derived from the rent of the property.

On June 17, 1976, the executor filed a tableau of distribution which provoked the opposition and, ultimately, the present appeal. In the tableau the executor recites that the executor’s fee of $10,809.30 will be divided between him and Webber “on a basis that will be mutually acceptable to us.” He lists the two notes as claims by Webber with the acknowledgment of the credit on principal and payment on interest on January 5, 1974.

In her opposition, opponent renewed her rule to traverse the descriptive list, objected to the payment of the $8,819.90 to Webber as the net proceeds from the rent of 725 Ursulines Avenue and opposed payment of the notes. On March 14, 1978, the opposition finally came to trial but with the added issue raised by opponent that Webber should be penalized 20% for having utilized succession funds as her own while she was executrix.

The trial court amended the descriptive list to include as succession assets a number of accounts including the Hancock Bank account, amended the tableau to strike the two notes as liabilities of the succession, and recalled $1,875.56 for the succession from the $8,819.90 paid to Webber as rent from 725 Ursulines Avenue. It is from this judgment that Webber appealed and opponent answered the appeal. While the executor appeared through his attorney when the case was argued, he made no argument and filed no brief since he takes no position in opposition to the parties and is content to abide by the final judgment in the matter.

ISSUES RAISED BY WEBBER

In this court Webber disputes only the trial court’s disposition of the Hancock Bank account and the two notes. The bank account was in the name of Mrs. Walter P. Villere or Mrs. Flora Mary Webber, but Mrs. Villere alone provided the funds deposited into it. Webber argues that the law of the situs of the bank account governs ownership based on Dawson v. Capital Bank & Trust Co. of Baton Rouge, 261 So.2d 727 (La.App. 1st Cir. 1972) and that the law of Mississippi would confer ownership on her.

In Louisiana a bank account is an incorporeal movable, LSA C.C. Art. 473, Sue. of Miller, 405 So.2d 812 (La.1981), and as such its ownership is governed by the domicile of the owner and not by the location of the thing. C.C. Art. 10, Sue. of Thomas, 35 La.Ann. 19 (1883). Under our law the funds on deposit in this account remain the property of decedent absent a showing of a donation as in Sue. of Miller, supra.

The Dawson case may provide some support for Webber’s position but it was clearly inconsistent with accepted principles of conflicts of law. In any event the case involved issues not pertinent here and can be distinguished on that ground. We have concluded that the trial judge correctly treated this bank account as the property of decedent.

The other issue raised by Webber on appeal is the exoneration by the trial court of the Succession from liability to Webber on the two notes. Since the notes were payable on demand and dated in 1969 and 1970 they would generally be prescribed in five years, C.C.Art. 3540, unless prescription was interrupted by acknowledgment or payment. Webber argues first that decedent’s statement in her April 20, 1973, will, “I desire that all my just debts be paid,” constituted an acknowledgment under C.C.Art. 3520 which provides:

“Prescription ceases likewise to run whenever the debtor, or possessor, makes acknowledgment of the right of the person whose title they prescribed.”

Next, Webber argues that prescription of the notes was interrupted by the mere opening of the succession in May, 1974, because' she could believe that, with the succession proceedings instituted, the matters would be settled in due course without necessity of a suit to enforce collection. Finally, Webber argues that the prescription was interrupted by payment of $1,000 interest by decedent to Webber on January 5, 1974.

These arguments over interruption of prescription need not be addressed because of the fact that the notes were in decedent’s possession at the time of her death establishing the presumption of payment of the notes. Martin v. Himel, 174 La. 281, 140 So. 478 (1932); Termplan Arabi, Inc. v. Rodney, 288 So.2d 874 (La.App. 4th Cir. 1974); Hughes v. Hughes, 170 So.2d 251 (La.App. 4th Cir. 1964). While this is a rebuttable presumption the evidence offered by Webber was not sufficient for this purpose. The record does not show when the notes were returned to decedent. We know only these facts from the documents themselves: On May 16, 1969, a collateral mortgage on the property at 725 Ursulines was executed by decedent in favor of Web-ber securing a bearer note for that amount. It contained the usual provisions that the note would be pledged as security for other notes. On the same date decedent executed one of the $15,000 notes in question here, on the reverse side of which is the inscription:

“Secured by pledge of collateral mortgage favor of Mrs. Flora V. Droulia for $30000.00 per act before Jonas C. Sporl, N.P. dated May 16, 1969.”

The second $15,000 note dated January 7, 1970, contains no such inscription.

The only suggestion in this record of any indebtedness by decedent to Webber comes from evidence that Webber delivered to decedent some $36,000 of proceeds from a policy of insurance on her (Webber’s) brother in 1964. But if this 1964 transaction was a loan for which the 1969 note for $15,000 was given, the 1970 note cannot be reasonably explained as an acknowledgment of the same 1964 debt because, if it were, it would all have been accomplished at the same time and in the same manner as the 1969 note.

Moreover, this record does not establish that decedent ever issued any of these notes to Webber. The record does establish that all the notes were in decedent’s bank box at her death. Furthermore, C.C. 1638 obliges the legatee of mortgaged property to discharge the mortgage, and Webber is the special legatee of mortgaged property upon which the collateral mortgage bears, so that at least the 1969 note if not both (if ever issued, and if not paid or converted into some “invest[ment] in 725 Ursulines” to which the check stub refers) would become Webber’s own obligation (and thus extinguished by confusion). Perhaps some investment arrangement with Webber was the justification in decedent’s mind for leaving 725 Ursulines to her as the sole departure in her will from otherwise perfect equality of treatment of Webber and the grandchild from the predeceased son.

Thus, we have concluded that Webber is not entitled to collect on the notes irrespective of prescription problems.

ISSUES RAISED BY OPPONENT

Opponent first contends that her rule to traverse the descriptive list was not disposed of in that the list failed to include one share of bank stock in decedent’s name. Nowhere in opponent’s pleadings in the trial court was this item mentioned so that it is not properly before us on appeal. However, if this item belonged to decedent, opponent is not precluded from bringing the issue before the trial court at this time. It is not unusual for supplemental proceedings to be conducted in a succession in order to account for assets inadvertently omitted at the beginning.

Opponent next contends that the trial judge erred when he recalled from Webber only $1,875.56 of rents from 725 Ursulines Avenue instead of the full $8,819.90 she was paid. As previously stated, this property was bequeathed to Webber and the executor secured an exparte order from the court authorizing him to deliver to her the property along with all net rents collected from the date of decedent’s death. In his judgment on opponent’s claim that the full amount should be returned to the succession the trial judge ordered returned only that portion of the rents collected between the date Webber resigned as executrix and the date when the legacy was delivered.

Ordinarily a particular legatee is entitled to the thing bequeathed and “the proceeds or interest thereof” only from the date the legatee made demand upon the executor for delivery. C.C.Art. 1626. However, the testamentary executor who is also the legatee is not bound to demand delivery of the legacy but may retain the thing already in his possession by virtue of his seizin of all succession effects, Art. 1628.

The trial judge apparently reasoned that the articles clearly entitled Webber to the rents while she was executrix but that she reverted to the status of any particular legatee once she resigned. On this point opponent could hardly have done better and has no ground to com plain.

Opponent next contends that Webber should be denied compensation as executrix because of malfeasance in office. In March, 1975, when Webber resigned opponent agreed that Webber would divide with the present executor the fee of $10,809.30. However, opponent now contends that she learned for the first time during trial of her opposition about misconduct on Webber’s part while she was executrix. According to opponent this misconduct consisted of Web-ber’s taking over a homestead account belonging to decedent six years before her mother died and then listing the amount on the succession list of assets for “memo only,” voting a salary of $500 per month for herself for doing nothing for Bridgeview, Inc., a corporation whose stock is owned by the succession, and helping herself to $300 of succession funds.

Statutory authority for the removal of a succession representative is contained in C.C.P.Art. 3222 which requires him to deposit all succession moneys in a succession bank account and prohibits him from withdrawing funds except according to law. The article provides for the following penalties for its violation:

“On failure to comply with the provisions of this article, the court may render a judgment against the succession representative and his surety in solido to the extent of twenty percent interest per an-num on the amount not deposited or withdrawn without authority, such sum to be paid to the succession. He may also be adjudged liable for all special damage suffered, and may be dismissed from office.”

In Succession of Gandolfo, 173 La. 190, 136 So. 561 (1931), relied upon by opponent, the court reiterated that the enforcement of penalties is a matter within the sound discretion of the trial court. Art. 3222 constitutes a codification of this jurisprudence and is a departure from its source, C.C.Art. 1150, which made the penalty of dismissal mandatory. See comment to C.C. P.Art. 3222. Thus, our inquiry is whether the trial judge abused his discretion in declining to deny Webber compensation.

It is understood that opponent does not seek to penalize Webber for a number of serious infractions she committed but which were known to opponent when she was pressing to remove her from office. In effect, the parties reached a settlement at that time under which Webber would resign and would split the executor’s fee with her successor. Perhaps the trial judge felt that these late discovered infractions should have been known by opponent before she settled with Webber. Surely, opponent could have conducted discovery to be certain that Webber had not committed other infractions before she compromised with Webber. Opponent was satisfied to have Webber’s resignation without digging any further into her record as executrix.

A second point was perhaps considered by the trial judge in declining to penalize Web-ber. The manipulation of the homestead account occurred not when Webber was executrix but six years before her mother died. Surely an inference arises that decedent was aware of the change of the account from her own name to her daughter’s and acquiesced in it.

A further point in mitigation of Webber’s fault, perhaps considered by the trial judge, was that Webber made no attempt to conceal the homestead account or the bank account from which she withdrew the $300. She listed them both in her tableau for “memo only.” She thus made the existence of the accounts known to opponent and let her know that she claimed them as her own.

Finally, the trial judge was apparently persuaded that Webber’s activities with the Bridgeview Corporation did not provide a proper basis for the imposition of penalties under Art. 3222. She and her cousin were members of the corporation’s board when her mother died and they added the third member. She joined the other directors in voting herself a salary. Any misconduct which may have been involved was committed by her in the capacity of a director and not as executrix.

We have thus concluded that the trial judge did not abuse his discretion in failing to penalize Webber by depriving her of compensation.

Next, opponent contends that the trial court should have ordered Webber to repay to the estate the salary she drew from Bridgeview. As indicated above, Webber’s misconduct here, if any, was not committed as executrix. It seems that this problem could more properly form the basis of an action against the corporation or the directors for malfeasance and it is complicated by the fact that some of the shares are owned by the estate of decedent’s husband which would, therefore, have an interest in the matter.

Opponent’s next contention that Webber should be assessed the twenty percent penalty provided by Art. 3222 has already been disposed of in our discussion above.

Opponent next asks that the trial court require the executor to take some action regarding a corporation known as Hunter Enterprises, Inc. in which decedent may have had an interest. No appropriate pleadings were ever filed to bring this matter before the trial court and for this reason we decline to consider it.

Finally, opponent takes issue with the federal estate and state inheritance tax returns. First, she says the estate was under evaluated so that more taxes should be paid, and, second, the taxes should be apportioned in accordance with R.S. 9:2432. Here again these issues were not properly raised in the trial court, but nothing seems to preclude opponent from raising the point at this stage. In any event, the record before us does not enable us to recompute the returns and/or apportion the taxes between Webber and opponent.

Accordingly, the judgment appealed from is affirmed subject to recognition of opponent’s right to file appropriate pleadings in the trial court to bring to the executor’s attention any assets inadvertently omitted from the descriptive list and tableau, such as the one share of stock in the National Bank of Commerce in Jefferson and the alleged claim against Hunter Enterprises, and her right to seek a correction of the tax returns and an apportionment of tax liability in accordance with R.S. 9:2432. The costs of this appeal are taxed against Web-ber.

AFFIRMED AND REMANDED.


author: CHIASSON, Judge.

text:
    Charles CHAVERS v. Viola P. CHAVERS.
    No. 14417.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1982.

      J. Lynn Ponder, Amite, for plaintiff-ap-pellee.
    Bruce E. Simpson, Kentwood, and Richard Macaluso, Hammond, for defendant-appellant.
    Before CHIASSON, EDWARDS and LEAR, JJ.
   CHIASSON, Judge.

The sole issue remaining in this appeal is the custody of two minor children of Viola P. Chavers, defendant-appellant, and her former husband, Charles Chavers, plaintiff-appellee.

Appellant filed this appeal from a judgment of the trial court granting custody of the children to Charles Chavers. Thereafter, pursuant to a custody rule filed by Mrs. Chavers, the trial court granted her custody of the children.

Although Mr. Chavers has not raised the issue of mootness, this court has the authority to consider, ex proprio motu, the possibility thereof. Behler v. Louisiana State Racing Commission, 251 La. 959, 207 So.2d 758 (1968); Major v. Louisiana Department of Highways, 327 So.2d 515 (La. App. 1st Cir. 1976).

Our Supreme Court has consistently defined a “moot” case as one which seeks a judgment or decree which, when rendered, can give no practical relief. Robin v. Concerned Citizens for Better Education in St. Bernard, Inc., 384 So.2d 405 (La.1980).

Appellate courts do not give opinions on moot questions or abstract propositions from which no practical results will be derived, Behler, supra, and therefore, moot questions will not be considered on appeal. State ex rel. Guste v. Louisiana Milk Commission, 297 So.2d 750 (La.App. 1st Cir. 1974); La.C.C.P. art. 2164.

Obviously, the subsequent judgment of the trial court granting to appellant the custody of the children renders the issue presented by this appeal no longer viable and therefore, moot.

The appeal of Viola P. Chavers is therefore dismissed at her costs.

APPEAL DISMISSED.


author: LEAR, Judge.

text:
    Oscar G. RICHARD, III v. BOARD OF TRUSTEES OF the STATE EMPLOYEES GROUP BENEFITS PROGRAM.
    No. 14496.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1982.

      Byron Magbee, Baton Rouge, for plaintiff-appellee Oscar G. Richard, III.
    Tommy D. Teague, Baton Rouge, for defendant-appellant Bd. of Trustees of State Emp. Group Benefits Program.
    Before CHIASSON, EDWARDS and LEAR, JJ.
   LEAR, Judge.

Plaintiff, Oscar G. Richard, III, a state employee and a member of the State Employees Group Benefits Program, sued to recover medical expenses incurred by his wife, Billie G. Richard, who is a covered dependent under this benefit plan. Plaintiff also seeks statutory penalties and attorney’s fees. Defendant, Board of Trustees of the State Employees Group Benefits Program alleged that it had paid all eligible expenses on claims submitted by plaintiff, and that the obligation sued upon was therefore extinguished by payment. Judgment was rendered in the trial court in favor of plaintiff, awarding him the benefits sued for and statutory penalties and attorney’s fees. Defendant then appealed.

On or about July 4,1978, Dr. Jere Melilli, a licensed physician practicing in Baton Rouge, Louisiana, suggested that Mrs. Richard receive acupuncture treatments for pain following a cervical laminectomy. Dr. Melilli referred her to Dr. Li Chang Wang, who was then practicing acupuncture within Dr. Melilli’s office and allegedly, under his supervision.

Mrs. Richard received a number of acupuncture treatments beginning on July 4, 1978. Defendant first paid for these acupuncture treatments, as they were billed as subcutaneous nerve stimulation and the claim forms were signed by Dr. Melilli. At a later date, however, it was determined that these claims were for acupuncture treatments rendered by Dr. Li, at which time defendant denied coverage for these previously paid acupuncture claims and deducted the cost of these acupuncture treatments from subsequently submitted eligible claims.

As the trial court’s judgment was based on its finding that these acupuncture treatments were covered under the program, we must initially determine whether this conclusion of the trial court is correct.

The dispute in this case is governed by the contract of insurance existing between plaintiff and defendant. The principles of law in this area are set forth in the case of Fontenot v. New York Life Insurance Company, 357 So.2d 1185 (La.App.3d Cir. 1978), in which the court stated: See also W. H. Franks v. Louisiana Health Services and Indemnity Company, 382 So.2d 1064 (La.App.2d Cir. 1980); Hall v. National Life and Accident Insurance Company, 383 So.2d 74 (La.App.3d Cir. 1980).

“It is well settled law that a policy of insurance is a contract between the Insured and the Insurer and has the effect of law on the parties. LSA-C.C. Art. 1901; Smith v. North American Companies for Life, Accident and Health Insurance Company, 295 So.2d 483 (La.App.3d Cir. 1974), writ granted, 299 So.2d 360, reversed on other grounds, 306 So.2d 751. It is equally well settled law that insurers are at liberty to limit their obligations so long as such conditions and limitations do not conflict with statutory law or offend public policy. When such conditions and or limitations are clear and unambiguous they must be given effect as written. Muse v. Metropolitan Life Insurance Company, 193 La. 605, 192 So. 72 (1939); Andrus v. Police Jury of Parish of Lafayette, 270 So.2d 280 (La.App.3d Cir. 1972); Cormack v. Prudential Insurance Company of America, 259 So.2d 340 (La. App. 4th Cir. 1972) writ refused, 261 La. 824, 261 So.2d 230.”

The law of this case, the insurance contract between the parties, is found in a brochure entitled “State of Louisiana Employees Uniform Group Benefits Program”, which was introduced as “joint exhibit 1”. The parties agree that plaintiff’s claim for payment for the acupuncture treatments is governed by the policy provisions entitled “Benefits” and “Eligible Expenses”, which are contained on pages D-2 through D-4 of the contract. These provisions, in pertinent part, read as follows:

“BENEFITS
“When accidental bodily injury or sickness, as a result of other than alcoholism or a mental or nervous disorder, requires the covered person to incur expense for any of the Eligible Expenses defined herein, and such service or treatment is performed or prescribed by a Physician while this coverage is in force as to such person, the program will pay .... [emphasis added]
“ELIGIBLE EXPENSES
“The following shall be considered eligible expenses under major medical benefits;
9. Services of a Physician
10. Services of a Physiotherapist duly licensed under the laws of the state where the service is rendered” [emphasis added]

For an expense incurred for service or treatment to be covered by the program it must not only be performed or prescribed by a Physician, but such service or treatment must be contained in the list of Eligible Expenses. In determining this issue, the trial court found that, because these acupuncture treatments were “prescribed by a Physician” they were covered by the program and plaintiff was entitled to be reimbursed for them. The trial court erred, however, in failing to initially determine if these acupuncture treatments were in fact listed as an Eligible Expense.

These acupuncture treatments were not “services of a Physician”. The evidence clearly shows that Dr. Melilli, plaintiff’s physician, did not himself actually perform these acupuncture treatments. They were performed by Dr. Li, in a building adjacent to Dr. Melilli’s office. Dr. Melilli was not present when these treatments were performed, nor did he in any way direct Dr. Li in performing these treatments.

The term “Physician” is defined by the policy, in pertinent part, as follows:

“DEFINITIONS
“(B) Physician as used herein, means the following: A duly licensed Medical Doctor (M.D.), Doctor of Dental Surgery (D.D.S.), (D.M.D.), Doctor of Osteopathy (D.O.), licensed Podiatrist, licensed Psychologist meeting the requirements of the National Register of Health Service Providers in Psychology or licensed Chiropractor, legally entitled to practice their specialties in the state in which the service is performed. Such persons must be engaged in private practice, and render a charge to the Covered Person for his professional services.”

As noted above, Dr. Li is not licensed as a Medical Doctor under the laws of Louisiana. Nor could he in any sense be included in the term “physician” as defined by the policy.

Plaintiff next argues that acupuncture is in fact a form of physical therapy and, under certain circumstances, a person is allowed by law to practice physical therapy in Louisiana without being licensed. The question before us is not whether a person can practice physical therapy without a license, but whether such services are an eligible expense under the contract of insurance.

Plaintiff then concludes that these treatments should be considered as physical therapy and they should be paid for by the Program under subparagraph 10 of Eligible Expenses (quoted above). It is not necessary for us to decide the question of whether acupuncture is or can be equated with physical therapy, and we decline to do so here. Even assuming that these treatments could be classified as physical therapy ar.d/or Dr. Li classified as a physiotherapist, these treatments still could not be included in the list of eligible expenses covered by the Program.

Subparagraph 10 clearly provides for payment for only the service of a physiotherapist who is duly licensed under the laws of the state where the service is rendered. These services were performed in Louisiana, and thus, to qualify as eligible expenses, it would be necessary for Dr. Li to be a licensed physiotherapist under the laws of Louisiana. Our review of this record shows that Dr. Li is not licensed as a physiotherapist under the laws of Louisiana.

We find that Dr. Li is not a physician nor a duly licensed physiotherapist as defined by the laws of Louisiana or by the provisions of the policy. Thus, the services rendered by him (acupuncture treatments) are not “eligible expenses” under the policy and . plaintiff is not entitled to be reimbursed by the program for the expense of these treatments.

Both plaintiff and defendant admit and agree that the amount first paid by defendant and then retroactively deducted from eligible expenses for these acupuncture treatments is $1,384.00. As we have found that these acupuncture treatments were not covered under the program, and defendant therefore properly deducted them from subsequent eligible claims, this amount must be deducted from the amount of the benefits awarded by the trial court. Deducting the amount paid by defendant for the acupuncture treatments ($1,384.00) from the amount awarded as benefits by the trial court ($1,625.70) leaves the amount of $241.70.

After reviewing this record, including the testimony of Linda J. Loop, an employee of C.N.A. Insurance, defendant’s adjusting agent, it is clear that some errors were made by defendant in calculating the amounts owed to plaintiff, other than for acupuncture. Considering this record as a whole, we find that the trial court’s determination of the amount of defendants underpayment is not manifestly erroneous or clearly wrong. This finding of the trial court should therefore be affirmed. Arceneaux v. Dominque, 365 So.2d 1330 (La.1978).

With regard to its award of statutory penalties and attorney’s fees, the trial court stated that “an erroneous interpretation of a policy by the insurer does not free it from paying penalties and attorney’s fees.” Because of our finding that defendant’s interpretation of its policy was not erroneous, it can not be held liable for penalties and attorney’s fees on that basis. Further, while defendant did in fact fail to pay the plaintiff some small amount, considering the number of claims submitted by plaintiff over a long period of time and the number of adjustments made necessary by defendant’s erroneous payment for the acupuncture treatments, we do not find that defendant’s failure in this case was unreasonable. We find therefore that plaintiff is not entitled to an award for penalties or attorney’s fees. That portion of the trial courts judgment should be reversed.

For the foregoing reasons, the judgment of the trial court awarding plaintiff benefits is amended and judgment is hereby rendered in favor of plaintiff, Oscar G. Richard, III, and against defendant, Board of Trustees of the State Employees Group Benefits Program, in the amount of Two Hundred Forty One and 70/100 ($241.70) Dollars, plus interest from the date of judicial demand until paid. The judgment of the trial court awarding plaintiff statutory penalties and attorneys fees is hereby reversed. The costs of trial are to be paid by defendant-appellant and the costs of appeal are to be paid by plaintiff-appellee.

AMENDED IN PART, REVERSED IN PART, AND AS AMENDED RENDERED.

      . Dr. Li, who is a Doctor of Chinese Medicine and is referred to as “Doctor”, is not, in fact, licensed as a Medical Doctor under the laws of Louisiana.


author: EDWARDS, Judge.

text:
    Samuel B. HAYNES, Jr. v. RECREATION AND PARK COMMISSION OF the PARISH OF EAST BATON ROUGE.
    No. 14498.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1982.

      Clifton 0. Bingham, Jr., Baton Rouge, for plaintiff-appellee Samuel B. Haynes, Jr.
    Ashton L. Stewart, Baton Rouge, for defendant-appellant Recreation and Park Com’n, Parish of East Baton Rouge.
    Before CHIASSON, EDWARDS and LEAR, JJ.
   EDWARDS, Judge.

This is an action for a declaratory judgment seeking to have the district court interpret the terms of a contract.

Plaintiff, Haynes, entered into a contract with defendant, Recreation and Park Commission of the Parish of East Baton Rouge (“BREC”). Under the contract, plaintiff was given the right to construct and operate an amusement train at the Baton Rouge Zoo for a period of five years with the option to renew for two successive five year terms. In return, plaintiff was to pay BREC a specified percentage of annual gross sales with a guaranteed annual minimum of $5,000.00. The contract was awarded to Haynes after public bids were taken on the contract.

Haynes filed suit seeking to have the district court interpret Paragraph XXI of the contract, which provides, in pertinent part, as follows:

“Train ride will be priced at $.35 per person. Any future change in price, based on the economy, must be mutually agreed upon by Haynes and Bree.”

Haynes asserted that this clause means that the admission price charged is subject to change based upon the condition of the economy and mutual agreement of himself and BREC.

BREC’s answer to Haynes’ petition asserted that Paragraph XXI of the contract is without legal effect for two reasons. BREC asserted, first, that the clause violates the public bid law for leases, LSA— R.S. 41:1211 et seq. Second, BREC asserted that the clause had no legal effect because it is not certain and there was no meeting of the minds of the parties. Alternatively, BREC maintained that if the disputed provision was enforceable it should be interpreted to base any price changes upon the economy of plaintiff’s operations as distinguished from the national or local economy.

BREC also sought to have the trial court interpret another section of the contract. Paragraph XXIII provides as follows:

“If the premises be abandoned or vacated by Haynes, Bree shall have the right, but not the obligation, to make a new agreement for the remainder of the period covered hereby; and if the money or compensation is not received through such new agreement at least equal to the money or compensation provided for hereunder, Haynes shall pay and satisfy any deficiencies between the amount of money or compensation called for and that received through a new agreement. Nothing herein shall be construed as in any way denying Bree the right, in case of abandonment, vacation of premises, or other breach of this agreement by Haynes, which have not been corrected consistent with Paragraph XXII, to treat the same as an entire breach and at Brec’s option immediately sue for the entire breach of this agreement and any and all damages occasioned Bree thereby. Closing for a period not to exceed thirty (30) consecutive days, between December 1st and March 1st will not be considered abandonment. During any other time of the year closing for more than seven (7) consecutive days, may be considered abandonment.”

BREC asserted that the contract contemplated that Haynes’ train ride would be operated at all reasonable times. It requested a declaratory judgment in its favor declaring that Haynes was obligated under the contract to operate the minature train on the same days which BREC operated its rubber-tired zoo train.

The trial court rendered judgment for plaintiff and held that Paragraph XXI is valid and enforceable and “means any future changes in the prices of the train ride will be made according to changes in the economics of Haynes’ operation.” The trial court rejected BREC’s request for declaratory judgment, holding that Haynes is only required to operate the train in accordance with the requirements of Paragraph XXIII. BREC has appealed the decision of the district court. We affirm.

BREC renews its contention that Paragraph XXI violates the public bid laws. Haynes’ contract with BREC is not a “public work” or “purchase of materials or supplies” as contemplated by LSA-R.S. 38:2212. Furthermore, it is not a pure “lease” of public land as contemplated by LSA-R.S. 41:1211 et seq. As plaintiff points out in brief, it is a franchise type agreement more closely akin to a public utility franchise.

Assuming, arguendo, that the contract is subject to the provisions of LSA-R.S. 41:1211 et seq., we conclude that the disputed provision does not violate that statute. LSA-R.S. 41:1212 authorizes the lease of land on share basis. The trial court noted in its reasons for judgment that the provision in question was included in the bid specifications and “(e)veryone bidding for the right to operate the amusement train was aware that the admission price would be subject to change by mutual agreement based on the economics of the situation.” A change in the price of the train ride does not constitute a change in the consideration (percentage of gross sales) of the agreement. If the provision in question allowed adjustment in the percentage that BREC was to receive, or in the guaranteed minimum, defendants would have a stronger argument. However, the clause in question violates neither the letter nor the spirit of the public bid law.

We also conclude that Paragraph XXI does not have the effect of preventing a meeting of the minds of the parties to the contract. The trial court’s conclusion that there was a meeting of the minds is supported by the testimony of the parties. All of the evidence supports the trial court’s conclusion that both parties envisioned that during the term of the agreement (potentially fifteen years) changes in the admission price would be made, by mutual agreement, if justified by changes in the economics of Haynes’ operation.

Finally, we conclude that the trial court was correct in denying BREC’s request for a declaratory judgment to the effect that Haynes was required to run his train on the same days that the zoo runs its rubber-tired train. Defendant argues that Haynes is obligated under the contract to operate its train at “reasonable times.” BREC asserts that the operation schedule of its own rubber-tired zoo train constitutes “reasonable times.” We reject this reasoning.

Haynes’ contract with BREC contains only one provision, Paragraph XXIII, regarding required operation of the train ride. Paragraph XXIII provides, in pertinent part, as follows:

“Closing for a period not to exceed thirty (30) consecutive days, between December 1st and March 1st will not be considered abandonment. During any other time of the year closing for more than seven (7) consecutive days, may be considered abandonment.”

The trial court correctly concluded that Haynes may operate his train on any days which he chooses as long as he complies with the provisions of Paragraph XXIII. No evidence was presented to show that the parties intended any other restrictions on the time of operation of the train ride.

Furthermore, we note that the evidence establishes a significant difference in Haynes’ train ride and the BREC rubber-tired train. George Felton, Director of the Baton Rouge Zoo, testified that Haynes’ train ride was an amusement ride which travels around the perimeter of the zoo. He distinguished that ride from BREC’s rubber-tired train, which travels within the zoo itself and has a guide who gives a tour of the zoo exhibits. Clearly, the purposes of the two trains are different. Haynes’ train is an amusement ride, whereas the BREC rubber-tired train operates to give an educational tour. Even if we were to hold that Haynes was required to operate his train at “reasonable times” other than the restrictions imposed by Paragraph XXIII, we would not be inclined to conclude that the hours of operation of the BREC train set the standard for reasonableness.

For the foregoing reasons, the judgment of the district court is affirmed. Costs are to be paid by defendant-appellant.

AFFIRMED.


text:
    Joel TYSON and Alma Tyson v. AMERICAN INDEMNITY COMPANY.
    No. 14511.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1982.
    Writ Denied April 16,1982.
    Alex W. Wall, Sr., Baton Rouge, for plaintiffs-appellees Joel Tyson and Alma Tyson.
    Robert L. Kleinpeter, Baton Rouge, for defendant-appellant American Indem. Co.
    Before CHIASSON, EDWARDS and LEAR, JJ.
   EDWARDS, Judge.

Plaintiff, Alma Tyson, was driving in her automobile when it began to overheat. She stopped, allowed a few minutes to elapse, removed the radiator cap, and added water to the radiator. At that time, a passing motorist, Melvin Richard, stopped to render assistance. Richard checked the vehicle to see if there were any leaks and asked Alma Tyson to start the engine. After the car started without difficulty, Richard replaced the radiator cap and closed the hood. Alma Tyson proceeded on, but the vehicle again began to overheat. She stopped the automobile, raised the hood and waited a short while before touching the radiator cap to see if it had cooled enough to be removed. As Alma Tyson touched the cap, it came off of the radiator and she received serious burns from steam and hot water which erupted from the radiator.

Plaintiffs, Alma Tyson and her husband Joel, filed suit against American Indemnity Company (“American”), the liability insurer of the Tysons’ automobile. Plaintiffs’ petition alleged that Alma Tyson’s injuries were caused by Richard’s negligence, in that he failed to properly replace the radiator cap.

American answered plaintiffs’ suit, generally denying plaintiffs’ allegations and further contending that there was no coverage under the insurance policy covering the Tysons’ automobile.

The trial court rendered judgment for the plaintiffs in the amount of $24,840.28, representing $20,000.00 for Mrs. Tyson’s personal injuries and $4,840.28 in special damages. The trial judge concluded that there was coverage under the policy of insurance issued by American. He held that Richard was an omnibus insured under the policy because his action in assisting Mrs. Tyson constituted “use” of the automobile. The trial judge found that Richard was at fault for attempting to install the radiator cap about which he knew nothing and for installing it improperly. Finally, the trial court rejected defendant’s plea of contributory negligence or assumption of the risk on the part of Alma Tyson.

American has suspensively appealed the judgment of the district court. Plaintiffs have answered that appeal, asserting that the amount of the award is inadequate. We reverse and dismiss plaintiffs’ action.

American asserts that the trial court erred in three respects:

1. Concluding that Melvin Richard was an omnibus insured under the liability policy;
2. Finding that the evidence established that Richard was negligent; and
3. Rejecting defendant’s assertion of contributory negligence and assumption of the risk on the part of Alma Tyson.

Because our conclusion that the trial court committed manifest error in finding Richard negligent mandates reversal, we will not discuss the other alleged errors.

In his written reasons for judgment, the trial judge made the following observations with regard to his finding of negligence on the part of Richard:

“Richard testified that he was unfamiliar with the type of radiator cap which is installed in a Corvette automobile such as owned by the plaintiffs. His testimony underscores the fact that he did not tighten the cap in the proper fashion as was described by plaintiff’s radiator expert. He was at fault in attempting to install a cap about which he knew nothing and clearly his fault was the cause of Alma Tyson’s injry (sic).”

We have carefully reviewed the record. In light of the evidence contained therein, the finding that Richard was negligent is clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

For a plaintiff in a tort suit- for damages to recover in Louisiana, the damages must have been caused by the “fault” of another. There must be a duty owed by the defendant to the plaintiff; a breach of this duty; and this breach of duty must be the cause-in-fact of the damages suffered by the plaintiff. Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972); Dixie Drive It Yourself System v. American Beverage Co., 242 La. 471, 137 So.2d 298 (1962); Williams v. Louisiana Machinery Co., Inc., 387 So.2d 8 (La.App. 3rd. Cir. 1980).

Richard’s duty in the instant case was to act as a reasonably prudent person would act under the circumstances. If a person acted as a reasonable and ordinarily prudent person under the circumstances, he cannot be found to have been negligent. Pence v. Ketchum, 326 So.2d 831 (La.1976); Mauthe v. Gibson, 367 So.2d 1280 (La.App. 3rd Cir. 1979); Fire and Casualty Insurance Company of Connecticut v. Garrick, 312 So.2d 103 (La.App. 1st Cir. 1975).

Melvin Richard testified that he replaced the radiator cap in the same manner that he ordinarily did on his automobile, pressing the cap down and turning it until it was tight. He testified that he thought the cap was on securely. Cyrus Beam, who was accepted by the trial court as an expert on radiators, testified that the proper way to replace a radiator cap is to press it down and turn it until tight. This is what Richard did.

Plaintiff relies upon the testimony of Beam to establish Richard’s negligence. Beam testified that the cap could not have come off as testified to by Alma Tyson if it had been properly reinstalled. The trial court relied on this testimony in concluding that Richard did not tighten the cap properly and was at fault in attempting to install a radiator cap about which he knew nothing.

Although the cap might not have been correctly installed, Richard was not burdened with the duty of a perfect installation. Rather, his duty was to act as a reasonable person under the circumstances. Not only did plaintiffs fail to prove that Richard acted in a substandard manner, the record affirmatively establishes that he acted as a reasonably prudent person would have done under the circumstances.

The evidence establishes that Melvin Richard’s conduct was not substandard in any manner. Richard stopped to render assistance to a motorist who was having automobile trouble. His testimony indicates that he replaced the radiator cap as he ordinarily would and thought that it was secure.

Nor does the record support the trial judge’s finding that Richard was unfamiliar with this type of radiator cap. He testified that it appeared to work like the cap on his own Chevrolet. Beam, the radiator expert, testified that the cap was the same as the one used on all late model General Motors’ automobiles.

After reviewing the record, we reach the conclusion that the trial judge was clearly wrong in concluding that Melvin Richard was negligent. For that reason, we reverse the judgment of the district court and dismiss plaintiffs’ action. All costs are to be paid by plaintiffs-appellees.

REVERSED AND DISMISSED.

      . During the course of her testimony, Alma Tyson variously testified that the radiator cap popped off just as she “reached to touch it”; “reached to catch the top”; and “fooled with it.”


author: PONDER, Judge.

text:
    EAST BANK REALTY, INC. v. Gayle ROBERT, et al.
    No. 14523.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1982.

      James O. Ervin, Baton Rouge, for plaintiff & appellee.
    John Gutierrez, Gonzales, for defendant & appellee.
    Gerard E. Kiefer, Baton Rouge, for defendant & appellant. ,
    Before ELLIS, LOTTINGER and PONDER, JJ.
   PONDER, Judge.

East Bank Realty, Inc. filed a concursus proceeding to determine the proper owner of $10,000.00 it was holding in its escrow account, and which had been deposited with it by the prospective buyers of some property. Both the owners of the property and the prospective buyers claimed the money. The trial judge returned the $10,000.00 to the prospective buyers. The owners appealed.

The issues are evidence of the true cause of the contract and agency.

We affirm.

The owners of a tract of land in Ascension Parish listed their property with East Bank Realty. Gayle and Alvin Robert offered $10,000.00 for an option to purchase for $225,000.00. Four of the eight owners accepted the offer. The $10,000.00 deposit would be retained by the seller, if the sale was not closed within a stated time. The option contract described the property as containing 150.11 acres with 1120 feet of highway frontage on Highway 938.

Gayle Robert, who testified that road frontage was a prime consideration in acquiring the property, after signing the option found from a surveyor’s map that the road frontage was approximately 580 feet. He and Alvin relisted the property with East Bank Realty, for the price of $295,-000.00. When they received no serious offers, they allowed the option to lapse.

Although there are no written reasons for judgment, the trial judge must have decided the option agreement was invalid due to the error in the amount of the road frontage or to the lack of signatures of all the property owners.

There was insufficient evidence to show the front footage. Although two maps were introduced, neither contains any footage measurements. Neither party has had a survey made to determine the actual footage. Therefore, error as to the quality of the property, even if it was a principal cause of the contract, does not invalidate the agreement.

Of the eight owners of the property, only four signed the option contract. Mr. Ogden, the only co-owner to testify at the trial, stated that another co-owner and cosigner, had been verbally granted the right to sign the option for the four non-signers. He further testified that all co-owners were ready to transfer title.

An option is considered an offer to sell, irrevocable for the term of the agreement. Goodyear Tire & Rubber Co. v. Ruiz, 367 So.2d 79 (La.App. 4th Cir. 1979). In a mandate, the power must be express and special when it relates to selling or buying property. La.C.C.Art. 2997. A power of attorney to enter a contract relating to the alienation of real estate must be in writing. Lake v. LeJeune, 226 La. 48, 74 So.2d 899 (1954).

If the agency in a deed is not in writing, the transaction is not an absolute nullity that may be voided by third party attack, but is voidable by one of the parties to the act. Marchand v. Armstrong, 354 So.2d 581 (La.App. 4th Cir. 1977), writ denied, 355 So.2d 254, 255.

The only evidence of a ratification was Ogden’s testimony that the non-signing co-owners were ready to transfer title. This evidence falls short of proving a ratification on the part of the four co-owners. See Daigle & Associates, Inc. v. Coleman, 396 So.2d 1270 (La.1981).

There was no binding contract. The trial court was correct in returning the $10,-000.00 to the prospective buyers.

For these reasons, the decision of the trial court is affirmed with costs assessed to the appellants.

AFFIRMED.

      . La.CC.Art. 2997:
      “Thus the power must be express and special for the following purposes:
      To sell or to buy.
      To incumber or hypothecate.
      To accept or reject a succession.
      To contract a loan or acknowledge a debt.
      To draw or indorse bills of exchange or promissory notes.
      To compromise or refer a matter to arbitration.
      To make a transaction in matters of litigation; and in general where things to be done are not merely acts of administration, or such as facilitate such acts.”


author: LOTTINGER, Judge.

text:
    Johnnie L. DARVILLE v. DAIGLE PONTIAC-BUICK-GMC, INC.
    No. 14524.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1982.

      Alan J. Robert, Gonzales, for plaintiff & appellee.
    Pegram Mire, Jr., Gonzales, for defendant & appellant Daigle Pontiac-Buick.
    Jay McMains, Baton Rouge, for defendant & appellee G. M. C.
    Before ELLIS, LOTTINGER and PONDER, JJ.
   LOTTINGER, Judge.

This is an action in quanti minoris by Johnnie L. Darville, plaintiff, against Dai-gle Pontiac-Buick-GMC, Inc. (Daigle) and General Motors Corporation (GMC) seeking a reduction in the price of a new 1978 Pontiac Grand Prix which plaintiff purchased from Daigle. Daigle filed a general denial and third partied GMC. GMC answered both claims. After trial on the merits, the trial judge dismissed plaintiff’s suit against GMC, took the case under advisement as against Daigle and subsequently rendered judgment in plaintiff’s favor against Daigle for $2,500.00 together with $750.00 in attorney fees.

The judgment dismissing GMC was signed on July 25, 1980, and the judgment in plaintiff’s favor against Daigle was rendered and signed on January 9,1981. In its motion for appeal Daigle only mentions the judgment of January 9,1981, whereas in its brief it argues that the trial judge was in error in dismissing General Motors. However, at 399 So.2d 1252 this court dismissed Daigle’s appeal insofar as it related to any liability on the part of GMC.

FACTS

Plaintiff purchased a new 1978 Grand Prix on August 19, 1978, from Daigle for a price of $8,222.90. Prior to the purchase plaintiff noticed water standing on the back floor of the automobile and was informed by the salesman that a car window had been left down, thus allowing rain water to enter the car. Plaintiff was promised that the water would be removed and the carpet replaced.

Approximately one week after the purchase, plaintiff and his wife, as well as two others, were returning from a trip to Houston when it began to rain. The automobile commenced leaking to such an extent that two or three inches of water accumulated on the floor inside the car. Plaintiff returned the automobile to Daigle for repair. Over the next seven months the automobile was returned to the dealership on 12 occasions for water leaks. The car apparently leaked at three spots, two of which have been repaired. The third leak was never repaired by the dealership.

In appealing Daigle argues that the trial judge erred in (1) fixing an excessive reduction in price, basing such reduction on improper criteria and (2) determining that the alleged defect complained of by plaintiff constituted a redhibitory vice within the codal provisions concerning redhibitory vices.

ERROR NO. 1

Defendant-appellant argues that the amount of the reduction in price is usually arrived at by estimating the cost of repairing the defect, citing Menville v. Stephens Chevrolet, Inc., 300 So.2d 858 (La.App. 4th Cir. 1974), writ denied 303 So.2d 186 (1976). The estimated cost of repairing the third leak is $40.00.

However, in Menville v. Stephens Chevrolet, Inc., supra, Judge (now Justice) Lem-mon said:

“The cost of repairs, however, is not necessarily the sole measure of the diminution of value resulting from these defects. If the defects are few in number and quickly and simply remedied, the cost of repair may well be the only consideration. But when the defects are numerous and the repairs lengthy and frequent, then a greater reduction is warranted, because a forewarned buyer would not reasonably pay a full price, reduced only by the cost of repairs, if he knew the extensive repairs of the defects would significantly curtail his use and cause him considerable inconvenience and aggravation. The diminution which the trial judge may decree under C.C. art. 2543 is theoretically the difference between the sale price and the price the reasonable buyer and seller would have agreed upon if they had known of the defects.”

We are convinced that the trial judge was well within his discretion in reducing the price of this automobile by $2,500.00, considering the number of times this particular vehicle was returned to the dealership for repair, the time that the vehicle stayed in the repair shop, the inconvenience occasioned by plaintiff in constantly having an automobile that leaked whenever it rained, and the fact that the leak was not ultimately repaired.

ERROR NO. 2

Under this assignment of error appellant apparently argues that because plaintiff saw water in the vehicle prior to the sale he had full knowledge of any defect, and alternatively plaintiff was told that the dealership would fix a glass that was broken which should have put him on notice of any defects.

Plaintiff testified that upon noticing the water he was informed by the salesman that a window had been left down and rain came into the car, and that additionally when a door had been slammed closed a glass broke, necessitating replacement. The trial judge apparently believed this version, and we have no reason to find him in error. Noticing water on the floor of an automobile does not create a defect nor does it put one on notice of a defect, when the presence of water is attributed to someone’s leaving a window down. We find no error by the trial judge in declaring that these leaks were redhibitory defects.

Plaintiff seeks an increase in the award of attorney fees; however, plaintiff neither appealed nor answered the appeal and this court cannot in the absence of an appeal or an answer to an appeal amend the judgment in appellee’s favor.

Therefore, for the above and foregoing reasons the judgment of the trial court is affirmed at defendant-appellant’s costs.

AFFIRMED.