author: COLE, Judge. COVINGTON, Judge,

text:
    Sarah JEFFERSON, et al. v. Norman LANDWEHR and Merit Insurance Company.
    No. 14481.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1981.
    Rehearing Denied Feb. 18, 1982.
    Douglas T. Curet, Hammond, for plaintiffs.
    Allen B. Pierson, Jr., Ponchatoula, for defendant, Norman Landwehr.
    Daniel J. Caruso and Lloyd N. Shields, New Orleans, for defendant, Merit Ins. Co.
    Before COVINGTON, CHIASSON and COLE, JJ.
   COLE, Judge.

Plaintiffs Sarah Jefferson and Sharon Coleman, the latter acting individually and on behalf of her minor child, Jamar Coleman, sued the defendants, Norman Land-wehr and Merit Insurance Company, the uninsured motorist carrier of the owner of the Ford automobile driven by Sarah Jefferson, seeking $180,000.00 for personal injuries to plaintiff Jefferson and $95,000.00 for personal injuries and related expenses to the minor child, arising from an automobile accident on August 6, 1979. The accident occurred when the automobile driven by Mrs. Jefferson, with the young two-year old child as a passenger, was struck from the rear by a Ford automobile driven by Norman Landwehr. The defendant insurer requested a jury trial. From a judgment of the trial court adopting the jury’s verdict which denied recovery to the plaintiffs, the plaintiffs have appealed. We affirm.

Plaintiffs assign as error: 1) The jury’s finding in favor of the defendants was contrary to the law and the evidence; and 2) The jury’s finding in favor of the defendants, having no reasonable factual basis, was manifestly erroneous.

There is no complaint of the jury instructions. The gist of the plaintiffs’ argument on appeal is that the factual circumstances surrounding the accident can lead a reasonable mind only to the conclusion that the nature and extent of the injuries sustained by both plaintiffs were a direct result of the accident.

Our review of the present case is limited to an examination of whether the jury’s findings were manifestly erroneous. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Napoli v. State Farm Mutual Automobile Insurance Company, 387 So.2d 1351 (La.App. 1st Cir. 1980), affirmed 395 So.2d 720 (La.1981).

The Jefferson vehicle was stopped at a stop sign on Saxon Street at the intersection of Louisiana Highway 22 in Ponchatou-la, Louisiana, at about 12:30 P.M. on a clear, dry day, when it was hit in the rear by the Landwehr vehicle. The. sole proximate cause of the collision was the negligence of Norman Landwehr. The impact was slight, mostly bumper to bumper. The Landwehr car received no noticeable damage. The Jefferson car was slightly dented in the center of the trunk. The investigating police officer testified relative to the condition of the vehicles, and his testimony is corroborated by photographs of the vehicles.

The evidence establishes the plaintiffs have proved neither causation nor related damages. It was alleged that Mrs. Jefferson sustained “severe injury to her back, neck and shoulders,” and that Jamar Coleman suffered “severe injury to his back, neck and shoulders.” At the scene the investigating police officer was told that “nobody was hurt.” It was not until three days after the accident that Mrs. Jefferson, 67 years old, went to a Doctor of Chiropractic, complaining of neck pain. He observed a degenerative disease process that had been coming on for a period of years. He testified the treatment he gave Mrs. Jefferson was the same treatment he gave any patient of that age with a degenerative joint disease problem. The young child was diagnosed as having sustained a neck and cervical strain. Dr. Luis Matta, an orthopedic surgeon, examined Sarah Jefferson on September 9, 1980 (more than one year after the accident). All tests were within normal limits and Dr. Matta found no objective symptoms. The range of motion of the back was excellent. X-rays revealed generalized degenerative changes. It was Dr. Matta’s opinion that his examination failed to elicit any “remarkable findings to justify her allegations of pain and dysfunction involving her neck, upper or lower back region.”

We have carefully reviewed and evaluated the record, and find the evidence does not support a conclusion the accident caused injury to either plaintiff. A judgment awarding no damages is valid where the plaintiff fails to prove damages caused by the tortious act of the defendant, even though the defendant was at fault. Napoli v. State Farm Mutual Automobile Insurance Company, supra. Moreover, before recovery can be granted for aggravation of a pre-existing condition, a causative link between the accident and the victim’s current status must be established. Bates v. Garrett Marine Supply, Inc., 368 So.2d 1171 (La.App. 3d Cir. 1979). Mrs. Jefferson also failed to prove aggravating trauma.

A jury verdict should be maintained unless the record reflects its conclusions of fact are not supported by the evidence, or its application of the law is clearly erroneous. Babin v. St. Paul Fire and Marine Insurance Company, 385 So.2d 849 (La.App. 1st Cir. 1980), writ denied, 386 So.2d 358 (La.1980); Perrin v. St Paul Fire and Marine Insurance Company, 340 So.2d 421 (La.App. 4th Cir. 1976).

In the absence of manifest error, the appellate court is. not to disturb the finding of the jury which has evidence before it furnishing a reasonable factual basis for its verdict, based upon its reasonable evaluation of credibility. Harris v. State Through Huey P. Long Memorial Hospital, 378 So.2d 383 (La.1979); Arceneaux v. Domingue, supra.

The determination of credibility is properly allocated to the trier of fact (the jury). When that determination is reviewed by an appellate court, reasonable inferences of fact supported by the evidence in the record are not to be disturbed even though there may be other reasonable inferences of fact also supported by the evidence. The inference to be drawn from the general verdict in the instant case is that the jury found neither plaintiff sustained any injury in the accident. Indeed, the evidence casts serious doubt on the plaintiffs’ claim that they were injured in the accident. See Williams v. Allstate Insurance Company, 367 So.2d 1318 (La.App. 4th Cir. 1979).

Under these circumstances, we find no manifest error in the jury’s findings on the issues of causation and damages. Accordingly, we affirm the judgment appealed by the plaintiffs, at their cost.

AFFIRMED.

COVINGTON, J., dissents and assigns written reasons.

COVINGTON, Judge,

dissenting.

In this jury trial case we do not, of course, have the benefit of reasons for judgment. Since fault of Mr. Landwehr was admitted, my supposition is that one or more of three factors caused the jury to reach its verdict; the minimal impact to the rear of plaintiffs’ vehicle, the fact that Mrs. Jefferson was not in good health prior to the accident, or a choice between the testimony of the health care provider and another expert witness.

The force of impact cannot be directly correlated to degree of injury. We hear, read and know of instances in which there is severe property damage to a motor vehicle, even a “total loss,” but the occupant(s), fortunately, remain unharmed or relatively so. Conversely, serious injuries may result from wrecks in which the property damage is relatively light. Therefore, minimal force is of no degree of importance where it is established that a person sustained some injuries in an automobile accident. Boykin v. Washington, 401 So.2d 488 (La.App. 2 Cir. 1981).

It is also well settled that a tortfeasor takes the victim as he finds her. It is only necessary that the plaintiff prove that the accident was a contributing factor in the aggravation of a preexisting condition in. order to recover. See Perniciaro v. Brinch, 384 So.2d 392 (La.1980), increasing general damages award, by jury, from $500 to $5000; Romero v. Flo-Tel, Inc., 332 So.2d 596 (La.App. 3 Cir. 1976); Johnson v. Ceaser, 304 So.2d 855 (La.App. 4 Cir. 1974). And, where the victim was in good health (or, in the instant case, had a dormant degenerative disease which caused her no pain) before the accident, and disabling injury manifests itself after the accident, and there is a reasonable possibility of causal connection between injury and accident, it is presumed, subject to rebuttal evidence, that the accident caused the disabling (painful) condition. Boykin v. Washington, supra. The fact that Mrs. Jefferson did not have painful symptoms prior to the accident, but did have them subsequently, is compatible with the diagnosis of the treating health care provider, and would justify a conclusion that the causation requirement, that the collision caused personal injury, has been satisfied.

The medical care provider who saw Mrs. Jefferson on August 9, 1979, three days after the accident, and treated her thereafter for more than one year, did quite extensive tests, testified very candidly about her preexisting degenerative disease, and ruled out any causal relationship between the accident and any other ailments except for the pain and severe limitation of motion in the cervical spine area. He did tests relating to possible nerve root compression affecting the lower extremities and basic neurological tests; these were negative. However, he did find extreme degenerative disease in the lower right cervical spine which, based upon her history, had not been painful prior to the accident. He stated that, of course, the degenerative condition itself was not caused by the accident, but also stated that many persons with that malady do not experience pain until after some type of trauma. Also, he was of the opinion that her age, 67 years, necessitated a much longer treatment program than would have been necessary normally. The other expert, who saw her only once, more than a year after the accident and at a time when her symptoms and need for further treatment had diminished drastically, found no causal relationship between the accident and Mrs. Jefferson’s complaints. It is basic jurisprudence that the testimony of a health care provider who saw and treated a patient regularly after an accident, especially when corroborated by lay witnesses, is entitled to greater weight than one who saw the patient only once and then after more than a year had elapsed from the date of the injury.

I, therefore, respectfully dissent.

      . The automobile driven by Mrs. Jefferson was owned by Amos Hawkins, who had died prior to the trial.


source: Caselaw Access Project

author: CHIASSON, Judge.

license: Public Domain

text:
    SHENANDOAH PARK CIVIC ASSOCIATION, INC. v. Kenneth ELLZEY, R. J. D’Agostino and the City Parish Planning Commission of East Baton Rouge.
    No. 14483.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1981.
    Rehearing Denied Feb. 18, 1982.
    Michael R. Connelly, Baton Rouge, for plaintiff-appellant Shenandoah Park Civic Ass’n, Inc.

      Curtis K. Stafford, Jr., Baton Rouge, for defendant-appellee J. R. D’Agostino.
    Samuel A. Bacot, Baton Rouge, for defendant-appellee Kenneth W. Ellzey.
    Steve Wilson, Baton Rouge, for defendant-appellee City Parish Planning Com’n of East Baton Rouge Parish.
    Before COVINGTON, CHIASSON and COLE, JJ.
   CHIASSON, Judge.

• This is a suit for preliminary and permanent injunction preventing developers of Shenandoah Square Subdivision, which is being developed by defendant Kenneth Ell-zey, from building an open sewerage treatment plant in that subdivision until a properly called meeting of the City-Parish Planning Commission, East Baton Rouge Parish, is held. Plaintiff is Shenandoah Park Civic Association, Inc., a non-profit corporation formed by landowners in Shenandoah Park Subdivision. The trial court denied the preliminary injunction, and plaintiff appealed. We reverse.

Shenandoah Square Subdivision is a subdivision in the process of development adjacent to Shenandoah Park Subdivision, a developed subdivision with substantial homes. There was testimony that the building of a sewerage treatment plant adjacent to Shenandoah Park would reduce property values. No testimony was adduced to the contrary.

An original layout of a subdivision to be developed by defendant Ellzey and defendant R. J. D’Agostino, which encompassed a larger area than the plan for the presently proposed Shenandoah Square, was approved by the Planning Commission for the City-Parish on October 20, 1978. Thereafter, a revised plan for Shenandoah Square was submitted and given preliminary approval after a public hearing on March 10, 1980. The revised plan included a sewerage treatment plant adjacent to Shenandoah Park. Thereafter, a newly revised plan for Shenandoah Square involving town houses was submitted to the Planning Commission, and received preliminary approval on November 10, 1980, after public hearing. The newly revised plan approved November 10, 1980, did not change the location of the proposed sewerage treatment plant.

The principal issue raised by plaintiff Shenandoah Park Civic Association is the sufficiency of the notice given adjacent landowners in Shenandoah Park of the public meetings of the Planning Commission held March 10, 1980, and November 10, 1980.

The City-Parish Planning Commission is a creature of the City-Parish of East Baton Rouge, but is subject to the rules for city and parish planning commissions set forth in Title 33 of the Revised Statutes of this state. The provision of the Revised Statutes regulating procedure of a planning Commission is LSA-R.S. 33:113, which reads as follows:

“A planning commission shall approve or disapprove a plat within sixty days after the submission thereof to it; otherwise such plat shall be deemed to have been approved, and a certificate to that effect shall be issued by such commission on demand. The applicant for a commission’s approval may, however, waive this requirement and consent to an extension of such period. The ground of disapproval of any plat shall be stated upon the records of such commission. Any plat submitted to such commission shall contain the name and address of a person to whom notice of a hearing shall be sent; and no plat shall be acted on by such commission without affording a hearing thereon. Notice shall be sent to the said address by certified mail of the time and place of such hearing not less than five days before the date fixed therefor. Similar notice shall be mailed to the owners of land immediately adjoining the platted land, as their names appear upon the parish assessment rolls and, in the case of a parish planning commission, as such owners’ addresses appear in the directory of the parish; provided, however, that in parishes or municipalities with a population in excess of one hundred fifty thousand, the public hearing may be waived by the planning commission or planning authority for subdivisions creating five or less lots not involving the creation of any new streets, and provided further that the provisions in such waivers shall be clearly set forth in the official subdivision regulations. Every plat approved by a planning commission shall, by virtue of such approval, be deemed to be an amendment of or an addition to or a detail of the official plan and a part thereof. Approval of a plat shall not be deemed to constitute or effect an acceptance by the public of any street or other open space shown upon the plat. A planning commission may, from time to time, recommend to the local legislative body amendments to the zoning ordinance or map or additions thereto to conform to such commission’s recommendations for the zoning regulation of the territory comprised within approved subdivisions.
“In the case of a parish planning commission, such requirements or restrictions shall be stated upon the plat prior to the approval and recording thereof and shall have the same force of law and be enforceable in the same manner and with the same sanctions and penalties and subject to the same power of amendment or repeal as though set out as a part of a zoning ordinance or map.”

Notice of the public hearings held on March 10, 1980, and November 10, 1980, if we accept testimony submitted on behalf of the Planning Commission as true, were mailed to the developers and all landowners, the developers having been notified by certified mail and the landowners by regular mail. That procedure, we find, fails to measure up to the statutory requirements of LSA-R.S. 33:113.

The two key sentences are the following:

“Notice shall be sent to the said address by certified mail of the time and place of such hearing not less than five days before the date fixed therefor. Similar notice shall be mailed to the owners of land immediately adjoining the platted land, as their names appear upon the parish assessment rolls and, in the case of a parish planning commission, as such owners’ addresses appear in the directory of the parish. . . . ”

Thus notice is required to be sent to developers by certified mail by the first sentence quoted above, and “Similar notice” is to be mailed landowners of adjacent property. “Similar notice” obviously means the same kind of notice, viz. notice by certified mail. As may be seen from a reading of the statute, the developer is the moving party in obtaining the hearing. Therefore, notice given the landowners should be subject to requirements at least as strict and exacting as notice given the developers. The statute clearly indicates that both are to be given “similar notice”, and we find that notice similar to certified mail to developers is certified mail to landowners. The statute is clear that landowners must be given notice by certified mail.

Thus, the preliminary injunction sought was improperly denied. The building of the sewerage treatment plant should be enjoined until legally sufficient notice of a new public hearing is furnished all parties, landowners and developers, and a new public hearing held thereafter in accordance with such notice.

The judgment of the trial court is reversed and the matter remanded for proceedings consistent with this opinion, all costs to await final disposition of the matter.

REVERSED AND REMANDED.

      . For a brief history of the City-Parish Planning Commission, and an exposition of its powers and functions, see Old Jefferson Civic Assn. v. Planning Comm., 364 So.2d 193 (La.App. 1st Cir. 1978).

      . Many landowners assert that they received no notice in any form.


author: COVINGTON, Judge.

text:
    Ferdy George PATTERSON v. Clarence JACKSON, et al.
    No. 14484.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1981.
    Rehearing Denied Feb. 18, 1982.
    Writ Denied April 27, 1982.
    Joel B. Dickinson & Associates, Baton Rouge, for plaintiff & appellant.
    Glynn A. Long, Sr., Donaldsonville, for defendants & appellees.
    Before COVINGTON, CHIASSON and COLE, JJ.
   COVINGTON, Judge.

This is a suit for damages allegedly incurred by plaintiff, Ferdy George Patterson, as a result of his being shot by defendant, Clarence Jackson, a police officer of the City of Donaldsonville. Plaintiff alleged that he was shot at about 3:00 a. m. on March 5, 1979, as he answered the door of a mobile home owned by Curtis Dixon, with whom plaintiff was visiting at the time. Plaintiff seeks damages in the amount of $95,000.00 for his injuries from Jackson and the City of Donaldsonville, claiming that the shooting constituted an intentional tort. Plaintiff further alleged that at the time of the shooting, Jackson was acting as a police officer for the City, thereby making it, as his employer, also responsible for plaintiff’s injuries. Defendants answered, denying the allegations of the petition, and averring that all actions taken by Jackson in the incident were “prudent and completely justified under the circumstances.”

Thereafter, plaintiff amended his petition to include the City’s insurer, Western Surety Company, as a defendant, alleging that the insurer had issued a bond insuring the City from liability caused by the negligence and/or improper conduct of its employees. In response to the amending petition, the insurer filed a peremptory exception to the effect that plaintiff had no cause of action against the insurer because the bond issued by it was an “Honesty Blanket Bond” which did not provide insurance coverage for the circumstances alleged. The trial court sustained the exception, dismissing the insurer from the suit. This judgment was not appealed by the plaintiff.

Subsequently, trial was held before the trial court, resulting in a judgment in favor of the defendants dismissing plaintiff’s suit. Plaintiff has appealed this judgment. We affirm.

The trial court found the following facts:

“The parties do not dispute that on the night of March 4, 1979 and into the early morning hours of March 5, 1979, the plaintiff, along with two other individuals named Ray Wilson and Wayne Murray, were visiting Curtis Dixon at his two bedroom mobile home on Pine Street in Don-aldsonville. Some time after midnight, the parties at the mobile home decided to go to bed. Curtis Dixon slept in his bedroom near the front of the mobile home and Ray Wilson and Wayne Murray retired to the rear bedroom at the opposite end of the mobile home. The plaintiff, Ferdy George Patterson, slept on the couch in the living room which was next to Dixon’s front bedroom. The mobile home also contained a kitchen and bathroom which were located between the living room and the back bedroom. At about 1:30 a. m. that night, an individual named Clinton Riley came to the mobile home searching for Wayne Murray. Curtis Dixon and the plaintiff told Riley that Murray was sleeping in the rear bedroom and would not be disturbed. An argument and a small fight broke out between the plaintiff and Riley. Dixon stopped the fight and put Riley out of the mobile home.
“The parties were not in agreement as to what happened after Riley left the mobile home. The story presented by the plaintiff and his witnesses (Curtis Dixon, Ray Wilson and Grady Lewis) is completely different from that testified to by Officer Jackson and his witnesses (Officer Charles Ray Myles, Clinton Riley, Carl Williams and Detective Robert LeBlanc, Jr.). The testimony of the plaintiff and his witnesses can be summarized as follows:
“The plaintiff testified that after Clinton Riley left the mobile home, he went to the bathroom, and while in the bathroom, he heard a knock at the door and heard Curtis Dixon talking to whoever had knocked. He stated, however, that whoever had come to the door had left by the time he came out of the bathroom. The plaintiff further testified that a short time after he returned to the living room from the bathroom, there was another knock at the door and that he proceeded to answer the door. It was his testimony that as he was in the process of opening the door and had opened it a little, but not enough to see who was there, a shot was fired through the door near his head. He stated that he dropped to the floor and then a second shot was fired through the door. The plaintiff further testified that the second shot struck him in the lower back and exited his body at his chest, damaging his liver, one of his kidneys and one of his lungs in the process. He stated that after the two shots were fired, someone in the mobile home informed the officers outside that he had been hit by one of the shots. The plaintiff was not certain as to what happened thereafter, except that an ambulance arrived and he was taken to a local hospital and soon transferred to Earl K. Long Hospital in Baton Rouge. He stated that he was hospitalized for several months after the shooting, that he continues to have several physical problems as a result of the shooting and that he has not been able to return to work since the shooting.
“On cross-examination, plaintiff stated that he did not see Officer Jackson nor did he leave the mobile home prior to the time he was shot. He admitted, however, that he has been convicted of assault and battery of one of the officers on the night in question. He also testified that his conviction is presently being appealed. Although plaintiff denied having a gun in his possession on the night he was shot, he admitted that Curtis Dixon did in fact own a .357 magnum pistol at that time.
“Curtis Dixon, testifying on behalf of the plaintiff, stated that a short time after Clinton Riley left the mobile home, there was another knock on the door. He answered the door in his underwear and stated that Officer Jackson and Officer Charles Myles were inquiring about the earlier disturbance at the mobile home. He further, testified the officers became convinced that things were now peaceful at the mobile home, and said, ‘No, it don’t look like no disturbance over here’ and then turned around and left. He stated that he then went back to his bedroom and put his pants on ‘to sit up’ for a while, since the officers had awakened him. It was his testimony that a few minutes later, there was another knock at the door, and that this time, the plaintiff, Ferdy George Patterson, answered the door. He stated that as soon as plaintiff pushed the door open a little, two shots were fired through the door, the second of which struck the plaintiff.
“On cross-examination, Dixon denied that he was told by the officers when he first answered the door to put his pants on and came outside for questioning. He even denied that he had testified to that effect at the earlier criminal proceeding against plaintiff, although the relevant parts of the transcript of the criminal trial, which were introduced into evidence, showed otherwise. He further stated that from his bedroom he could see plaintiff at all times between the time Riley left the mobile home and the time plaintiff got shot, and that during that period of time, plaintiff did not leave the mobile home. He admitted that he owned a .357 magnum pistol which was in the mobile home on the night in question, but denied that the plaintiff ever had possession of the same. He further stated that when he was shot, plaintiff had on a pair of pants, a shirt and an undershirt; but he was definite in his testimony that plaintiff did not have a jacket [on] when he was shot.
“Ray Wilson also testified for the plaintiff. Although he indicated that he was in the mobile home during the entire time in question, he admitted that he was in the back bedroom when plaintiff was shot and did not witness the shooting nor the events immediately prior thereto.
“Mary Patterson, plaintiff’s mother, testified about her care of her son subsequent to his release from the hospital after he was shot.
“Plaintiff’s final witness was Grady Lewis who lived and was present in the mobile home next door to Dixon’s mobile home on the night in question. Lewis testified that on the night in question, he was awakened by some noise which sounded like arguing going on outside nearby, and that, a few minutes later, a shot was fired. He stated that he ran to his window and saw Officer Jackson fire a second shot. He further stated that when he looked outside, the only person he saw was Officer Jackson. He admitted, though, that he was not looking out his window when the first shot was fired and therefore could not testify as to whether or not the plaintiff was outside the mobile home when the first shot was fired.
“On the other hand, the testimony of Officer Jackson and his witnesses is entirely different. Officer Jackson testified that on the night in question, he was on patrol with Officer Charles Myles when their radio dispatcher requested that they check out a disturbance on Pine Street in Donaldson-ville. In response to the radio message, they proceeded to routinely circle the block near the address in question, and in doing so, they met Mr. Carl Williams who informed them that he had made a complaint that someone had fired shots at him from the Dixon mobile home. Mr. Williams, testifying for the defendants, stated that Mr. Clinton Riley had approached him for help in finding his car keys which had been supposedly lost in the Dixon mobile home when Riley had earlier been there, and that as Williams approached the Dixon mobile home on Riley’s behalf, he was fired upon, prompting him to file the complaint.
“After encountering Williams, Officers Jackson and Myles testified that they proceeded with Williams to search for Clinton Riley, who was subsequently found nearby. After Riley, who also testified at the trial, told them substantially the same story that had been told to them by Williams, Officers Jackson and Myles proceeded to the residence in question to continue their investigation. They both testified that they knocked on the door and Curtis Dixon answered. However, since he was in his underwear, they asked him to put on some clothes and then come out for questioning about the earlier incident. As Dixon returned inside to get dressed, the officers testified that the plaintiff, Ferdy George Patterson, came out of the mobile home and asked what was going on. They told him that they wanted to question the occupants of the mobile home about the Williams’ complaint, and requested that he submit to a body search. The plaintiff refused and resisted the officers’ attempt to frisk him and a scuffle ensued. Both Officers and Clinton Riley, who was observing from a distance, testified that during the scuffle, the plaintiff tried to grab the Officers’ pistols and also several times seemed to be trying to get something from under his jacket near his waist. At one point during the scuffle, Officer Myles struck the plaintiff with the butt of his shotgun, and testified that, in doing so, his shotgun struck a hard object under the plaintiff’s jacket, resulting in a crack in the handle of his shotgun. The shotgun with its cracked handle was introduced into evidence. The Officers further testified that the plaintiff managed to escape from their grasps and retreated to the steps of the mobile home a few feet away. While on the steps, it was the testimony of Officer Jackson that the plaintiff was able to pull a pistol from under his jacket and that the plaintiff then pointed the pistol in his direction. Officer Myles, although admitting that he did not actually see the gun in the plaintiff’s hand, testified that he realized what was about to happen when the plaintiff made it back to the steps alone and began what looked like an attempt to take something out from under his jacket. Realizing what was forthcoming, Officer Myles testified that he was able to get cover around the side of the mobile home, a few feet away from him. Officer Jackson testified that he shot two shots at the plaintiff with his pistol a few moments after the plaintiff pointed the gun at him, the first shot directly at the plaintiff, hitting him, and the second shot a little higher up as a warning shot to enable him to obtain cover. Officer Jackson was thereafter able to join Officer Myles at the patrol car. They called out for the other occupants of the mobile home to exit. Curtis Dixon and Wayne Murray came out. Officer Jackson testified that he was then able to reach inside the mobile home near the front door and take a .357 magnum pistol from the floor just inside the door. He returned to the patrol car and after questioning Curtis Dixon, learned that there were other weapons in the mobile home. Since there were other weapons inside, Officer Jackson called his headquarters for assistance and waited until his assistance arrived before attempting to enter the mobile home. Soon a sheriff’s deputy and detective arrived, and the four police officers entered the mobile home and found the plaintiff who had been shot lying near the door. They apprehended Ray Wilson from the rear bedroom, and after calling an ambulance for the plaintiff, conducted a thorough search of the premises. Detective Robert LeBlanc testified that his search resulted in several weapons being confiscated from the mobile home. The .357 magnum pistol seized by Officer Jackson was introduced into evidence. Both the plaintiff and Curtis Dixon identified the weapon as being Dixon’s.”
We have carefully reviewed the testimony and evidence in the record and find that they support the factual findings of the trial court. According to the testimony of the police officers, plaintiff managed to escape their attempt to effect a body search and fled to the mobile home. When plaintiff reached the door of the mobile home, he pulled a handgun from his pants and pointed the weapon at the officers. One of the officers was able to seek cover, but Jackson was unable to do so. However, to protect himself, he fired twice at the armed plaintiff, with the first roünd striking the plaintiff, causing the injuries complained of. Officer Myles’ testimony fully corroborates that of Jackson as to the entire incident. The testimony of Riley and Williams, called as witnesses for defendants, supported Jackson’s testimony regarding the initial disturbance at the mobile home. The officers and Riley testified that during the scuffle which ensued when the officers tried to frisk Patterson, plaintiff tried to remove an object from the waistband of his pants and also tried to disarm the officers. The facts clearly establish that Patterson pointed a pistol at the officers before Jackson fired at him.

Based upon its finding of fact set out above, the trial court held in favor of the defendants, stating:

“Since the stories told by the respective parties are completely different, the Court must decide which story is the most credible. After carefully considering the applicable law and the evidence introduced, including the appearance and demeanor of the witnesses on the stand, it is the opinion of the Court that the evidence preponderates in favor of the defendants and against the plaintiff for several reasons. The plaintiff really had only one witness to corroborate his story of the events leading up to and including the shooting, that being Curtis Dixon. However, Dixon’s testimony was not completely flawless and therefore not totally credible. Although Dixon insisted that he had full view of and was able to see the plaintiff at all times prior to his being shot, he testified that the plaintiff did not have a jacket on when he was shot. The testimony was clear, however, that the plaintiff did in fact have a jacket on when he was shot. The jacket with its bullet holes was introduced into evidence and it was stipulated between counsel that the plaintiff was indeed wearing the same when he was shot. Furthermore, the testimony presented by Dixon as to what was said to him by the officers when they first appeared at the mobile home is different from the testimony given by him at the earlier criminal proceeding against the plaintiff, as indicated above. Also, if Dixon’s testimony at this trial that the Officers left saying, ‘There is no disturbance here,’ were true, then there would have been no reason for them to stay there and a few minutes later shoot the plaintiff. They would have simply left the scene.
“The plaintiff’s credibility must also be questioned. His story was that the shots were fired even before he opened the door of the mobile home and therefore there was no reason for the shots to be fired. The Court finds it hard to believe that a duly trained police officer would have simply fired two shots through the door of the mobile home for absolutely no reason at all. Furthermore, as indicated above, the plaintiff had a shirt and jacket on when he was shot. On rebuttal, the plaintiff testified that he put the jacket on when he heard the knock on the door which he responded to and was ultimately shot while in the process of opening the door. The Court finds it difficult to believe that the plaintiff would have put on both his shirt and jacket before he actually opened the door. It is the opinion of the Court that the plaintiff would not have had a shirt and jacket on at the time he was shot had he not been outside the mobile home immediately prior thereto, as testified to by Officer Jackson and his witnesses.
“Also the evidence was undisputed that there was a .357 magnum pistol in the mobile home at the time in question that the plaintiff could have had access to. It was likewise not disputed that the plaintiff has been convicted of assault and battery of the officers on the night in question, although said conviction is presently on appeal. However, the Court does not even have to consider the plaintiff’s conviction as a basis for ruling in favor of the defendants. The plaintiff’s story is simply not as believable as that of the defendants.
“Unlike the plaintiff’s witnesses, Officer Jackson and his witnesses were more certain and straight-forward in their testimony. The Court finds that although Officer Myles was able to get cover around the side of the mobile home when the plaintiff was about to pull the gun from his waistband, Officer Jackson was not so fortunate. He found himself faced with a head to head confrontation with the plaintiff pointing a gun at him at point-blank range. He was out in the open. He was threatened with death or serious injury. He had no choice but to shoot. He did not have to wait for the plaintiff to shoot first. He knew from his earlier conversations with Carl Williams and Clinton Riley that shots had been earlier fired from the mobile home. The court finds that as the plaintiff was attempting to use the mobile home door as a shield, Officer Jackson shot twice, first directly at the plaintiff, hitting him, and secondly higher up in order , to give him enough time to seek protective cover, which he was subsequently able to do. According to the evidence presented, the Court finds that it was physically possible for the plaintiff to get shot in the manner testified to by Officer Jackson and his witnesses. Officer Jackson had one and only one shot at the plaintiff. It cannot be said that he acted unreasonably under the circumstances. Therefore, neither he •nor his employer are liable for the injuries and damages the plaintiff has allegedly suffered. Since the plaintiff has failed to prove liability, the Court does not pass on the issue of the extent of his alleged damages.
“Hence, the law and evidence is in favor of the defendants and against the plaintiff and therefore it is ordered, adjudged and decreed that the plaintiff’s suit be dismissed with prejudice at his costs.”

We agree with the trial court’s holding. In Kyle v. City of New Orleans, 353 So.2d 969, 973 (La.1977), the court said:

“Whether the force used is reasonable depends upon the totality of the facts and circumstances in each case. A court must evaluate the officers’ actions against those of ordinary, prudent, and reasonable men placed in the same position as the officers and with the same knowledge as the officers. Picou v. Terrebonne Parish Sheriff’s Office, supra; 6A C.J.S. Arrest § 49(a), p. 112; 6A C.J.S. Assault and Battery § 97, p. 491. The degree of force employed is a factual issue. Picou v. Terrebonne Parish Sheriff’s Office, supra; Castriotta v. Cronvich, La.App., 277 So.2d 744 (1973); Espenan v. Carona, La.App., 179 So. 119 (1938). As such, the trial court’s finding is entitled to great weight. Canter v. Koehring Co., La., 283 So.2d 716 (1973).
“Several factors to be considered in making this determination are the known character of the arrestee, the risks and dangers faced by the officers, the nature of the offense involved, the chance of the arrestee’s escape if the particular means are not employed, the existence of alternative methods of arrest, the physical size, strength, and weaponry of the officers as compared to the arrestee, and the exigencies of the moment. See Picou v. Terrebonne Parish Sheriff’s Office, supra; Logan v. Swift, La.App., 327 So.2d 168 (1976); Crawford v. Maryland Casualty Co., La.App., 169 So.2d 612 (1964); Restatement (Second) of Torts, Volume 1, § 132, comment c, p. 237 (1965); Comment, Tort Liability of Law Enforcement Officers: State Remedies, 29 La.L.Rev. 130.”

Thus, it is clear that when the reasonableness of the force used by the police in the exercise of its duty is at issue, the court must look at the “totality of the facts and circumstances” in the particular case. See Picou v. Terrebonne Parish Sheriff’s Office, 343 So.2d 306 (La.App. 1 Cir. 1977), writ denied, 345 So.2d 506 (La.1977). In the absence of manifest error, the finding of the trial court on the factual issue of the degree of force employed must be accorded great weight. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Stark v. Town of Merryville, 396 So.2d 569 (La.App. 3 Cir. 1981), writ denied, 399 So.2d 621 (La.1981).

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

AFFIRMED.

      . Defendant Jackson died after trial of this case. No substitution of parties was made. On argument date, October 16, 1981, plaintiff’s counsel moved to dismiss the appeal as to Jackson and a written motion and order of dismissal was signed 3 days later.


text:
    Leatrice H. GENOLA v. Alton S. GENOLA.
    No. 14488.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1981.
    Rehearing Denied Feb. 18, 1982.
    Writ Denied April 27, 1982.

      Albert J. Lord, Zachary, for plaintiff-ap-pellee Leatrice H. Genola.
    James A. Smith, II, Baton Rouge, for defendant-appellee Alton S. Genola.
    Ralph Brewer, Baton Rouge, for interve-nor-appellant Mrs. Mary Genola (born Forbes).
    Before COVINGTON, EDWARDS and COLE, JJ.
   COVINGTON, Judge.

This is an appeal by the intervenor, Mary F. Genola, from judgment of the district court decreeing that the property involved in the lawsuit, a 6V2 acre tract in East Baton Rouge Parish, formed a part of and belonged to the community of acquets and gains between Leatrice H. Genola and Alton S. Genola and that the subject property was not divisible in kind. The judgment further ordered a partition of the described property and dismissed the intervéntion of Mary F. Genola. We affirm.

This action commenced as a petition for settlement of community property brought by plaintiff, Leatrice H. Genola, against her husband, Alton S. Genola, on June 6, 1979, following a legal separation on January 12, 1979. The property was alleged to be not divisible in kind. The defendant answered, averring that the subject property did not belong to the marital community, but was the property of his mother, Mary F. Genola. Subsequently, on July 15, 1980, Mary F. Genola intervened, alleging that she was the owner of the property which she had acquired from McHenry Browning on February 16, 1952. The plaintiff responded to the intervention, asserting that the interve-nor never acquired any ownership or rights in the subject property. The defendant admitted the allegations of his mother’s intervention.

The facts establish that plaintiff and defendant were married on February 14,1953, and were judicially separated on January 12, 1979.

Prior to the said marriage, Mary F. Geno-la, widow of F. L. Genola, had executed an instrument with McHenry Browning dated February 16, 1952, under which Browning agreed to sell to Mary Genola the described property, with the consideration recited as $1,850.00, payable in monthly installments of $25.00 at 8% per annum interest. The instrument recited that there was an existing mortgage on the property, and that Browning reserved the right at his option to cancel the contract. The record reflects that no testimony was given and no documents were introduced to show that any deed translative of title to the property was ever passed from Browning to Mrs. Mary Genola.

Thereafter, on April 7, 1953, Browning entered into a “sale with mortgage” contract with Alton S. Genola, husband of Lea-trice H. Genola. Mary F. Genola appeared in this act as follows:

“And now into these presents personally came and appeared Mrs. Mary F. Genola who declared to me, said Notary, that the said property was sold to her under contract from McHenry Browning and that she appears herein to waive and renounce any right that she may have under said contract and further declares that she has no interest in this property and that she consents to the sale of this property to Alton S. Genola.”

Then, on March 15, 1963, Alton and Lea-trice Genola executed a mortgage in favor of Guaranty Federal Savings and Loan Association for $11,900.00 to build a new house on the property.

From the facts in the record, particularly the language of the contract of February 16,1952, it is clear that Browning and Mrs. Genola (Mary), the parties to the contract, did not intend a sale, transferring title to the property, until after the payments had been made pursuant to the provisions of the contract. It also appears, although not expressly stated, that the parties to the instrument intended that a deed was to be executed after Mrs. Genola had paid for the property. The subject contract in this case is clearly an agreement to sell, not a sale. The contract was not a deed translative of title. Kendall v. Kendall, 174 La. 148, 140 So. 6 (1932); Pruyn v. Gay, 159 La. 981, 106 So. 536 (1925); Leinhardt v. Marrero Land and Improvement Association, Ltd., 137 So.2d 387 (La.App. 4 Cir. 1962); Litvinoff, Of the Promise of Sale and Contract to Sell, 34 La.L.Rev. 1017, 1063-1069 (1974). We find that the trial court correctly held that the contract was not a sale, but was an agreement to sell.

Furthermore, we find that the trial court’s finding that the property, having been acquired during the marriage of Alton and Leatrice Genola, belonged to the community of acquets and gains existing between them. Under Articles 2334, 2402, 2405 (as they existed prior to January 1, 1980) and the attendant jurisprudence, all property acquired during marriage is presumed to belong to the community. See Cheramie v. St. Pierre, 382 So.2d 1003 (La.App. 1 Cir. 1980). There is no evidence in the record which even suggests that the property is Alton Genola’s separate property. It either belonged to his mother (and we have held it is not owned by Mary Genola), or to the community. Thus, we hold that the defendant and the intervenor have failed to meet their burden of proof and have not overcome the presumption in favor of the community. See Perkins v. Ray, 365 So.2d 1189 (La.App. 3 Cir. 1978). We thus decree that the following described property forms a part of and belongs to the community of acquets and gains formerly existing between Leatrice H. Genola and Alton S. Genola, to-wit:

The following property located in the Parish of East Baton Rouge, State of Louisiana. A certain tract of land containing Six and one-half (6V2) acres of ground, described as follows, to-wit:
One (1) acre of land taken from a 100-acre tract of T. L. Ellis, taken from the northwest corner of the 100-acre tract and having a front of one (1) acre on the east side of the extension of Devall Road by a depth of one (1) acre between parallel lines, and bounded on the north by Mrs. M. E. Richards, east and south by the remainder of the 100 acre tract, on the west by the extension of the Devall Road; and Five and 50/ioo (5.50) acres, more or less, forming the northeast corner of the 100-acre tract in Secs. 29 & 30, T-5-S, R-2-E, bounded north by Mrs. N. C. Cline, east by E. L. Westbrook and W. B. Townsend, south by Mrs. S. C. Schwing and west by A. A. Jackson, all as will be more fully shown on a map made by Charles Lawrence, C. E., dated September 6, 1943, and attached to Original 46, Bundle 1606, Office of the Clerk and Recorder for the aforesaid Parish and State.

Accordingly, we affirm the judgment of the trial court at intervenor’s costs.

AFFIRMED.

      . The defendant, Alton Genola, did not appeal the judgment.


author: COLE, Judge.

text:
    Vernon MICHAELMAN v. Sheriff J. Al AMISS, Warden Rodger Aucoin, the Parish of East Baton Rouge and the State of Louisiana.
    No. 14494.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1981.
    Rehearing Denied Feb. 18, 1982.
    Writ Denied April 15, 1982.
    E. Wade Shows, Baton Rouge, for plaintiff-appellant Vernon Michaelman.
    Walter G. Monsour, Jr., Parish Atty., Larry S. Bankston, Asst. Parish Atty., Baton Rouge, for defendant-appellee Parish of East Baton Rouge.
    Conrad S. Adkins, Baton Rouge, for defendant-appellee Sheriff J. A1 Amiss.
    William J. Guste, Jr., Atty. Gen., Judy F. Pierce, Staff Atty., Thomas S. Halligan, Asst. Atty. Gen., Baton Rouge, for defendant-appellee State of Louisiana.
    Before COVINGTON, EDWARDS and COLE, JJ.
   COLE, Judge.

This case involves a former inmate of the East Baton Rouge Parish Prison suing for damages caused when he was allegedly forced to perform anal and oral intercourse with ten other inmates. The incidents occurred on September 22, 1977, when plaintiff Vernon Michaelman was confined to cell-block “BG” of the parish prison. Because of overcrowded conditions plaintiff and one other inmate were assigned to sleep in the “day room” while other prisoners were housed in individual cells.

Plaintiff originally brought suit against J. A1 Amiss, Sheriff of East Baton Rouge Parish; Rodger Aucoin, warden of the parish prison; the North River Insurance Company, liability insurer of Amiss and Aucoin; the State of Louisiana; and, the Parish of East Baton Rouge (hereinafter referred to as the Parish). Various third party demands were filed, including one by the Parish against Amiss, Aucoin and their insurer. Prior to trial, plaintiff settled with all defendants except the Parish of East Baton Rouge. Remaining at issue, therefore, was the principal demand against the Parish and the Parish’s third party demand against Amiss, Aucoin and their insurer. After trial, the court rendered judgment in favor of the Parish, dismissing plaintiff’s suit. The Parish’s third party demand was, accordingly, dismissed.

The sole issue presented and argued on appeal, apparently not raised in the trial court, is whether or not strict liability can be imposed upon the Parish under article 2322 of Civil Code. Article 2322 provides: “The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice in its original construction.”

Plaintiff argues the failure of the security system was a “ruin” within the contemplation of article 2322. He contends, even assuming the initial construction of the security system was satisfactory, the Parish owed a duty under article 2322 to maintain it and, failing to do so, is strictly liable.

The plaintiff alleged that on the evening of the incidents the other inmates forced him to fight the inmate with whom he shared the day room and, as punishment for losing the fight, then forced him to perform oral sex on this same person. According to plaintiff, after “lights out” ten prisoners left their cells, one right after the other, and each singly by threats of violence forced him to engage in various sexual acts. It was not until several hours later, in the early morning of September 23, that plaintiff saw a guard and was able to report the incident. Plaintiff was removed from the cellblock and taken to the hospital area of the prison where he spent a week and was then released on bond. Bills of information were filed against the ten inmates and at least four of them pled guilty to the charge of crime against nature and were sentenced accordingly.

We find plaintiff’s argument concerning article 2322 to be without merit and totally inapplicable to this situation. First of all, plaintiff has not proven by a preponderance of the evidence that a “ruin” existed. He alleged the automatic locking mechanism on the individual cell doors failed, but offered no actual evidence to support this argument. It is true the prisoners managed to get out of their cells but the evidence indicates it is likely they did so by somehow jamming the locks so that although the control panel read “locked” the doors were in fact unlocked. This is not so much a failure of the locking system or a ruin of the building as it is an intervention by the prisoners to “prevent” the locks from working. In effect, the inmates beat the system.

Secondly, assuming arguendo that plaintiff has proven the locks were in disrepair and constituted a “ruin” of the building, we are not aware of any case under article 2322 in which the “ruin” is only indirectly related to the plaintiffs injury as is the situation in this case. In the case cited by appellant, Olsen v. Shell Oil Co., 365 So.2d 1285 (La.1978), rehearing denied and correction made, 1979, a water heater on a fixed platform exploded, injuring and killing many workers. The Olsen case illustrates the typical situation where a part of the building does direct physical damage to the plaintiff.

In the present case however, the alleged “ruin,” the insufficient locking system, did not directly harm the plaintiff. It is true the locking system allowed the inmates to leave their cells, and the inmates harmed the plaintiff, but we do not think article 2322 can be logically applied to this situation. The article was obviously designed to protect innocent persons from the physical harm they might receive as a direct result of the ruin of a building. We can only imagine the scope of liability that would occur if we were to apply this article to every case where a defect in a building appeared somewhere in the chain of events. For instance, if a homeowner’s front door lock is defective and an intruder is able to enter the residence, is the homeowner strictly liable under article 2322 for injuries inflicted by the intruder upon a houseguest? We think any liability in such a ease is logically based upon negligence of the homeowner rather than upon strict liability under article 2322.

We conclude article 2322 is simply not applicable to this situation. Any possible liability on the part of the Parish must be based upon negligence rather than upon this article.

For the foregoing reasons, we affirm the judgment of the trial court. All costs are assessed against the plaintiff.

AFFIRMED.

      . The trial court decided the case on the issue of negligence, holding the successful jamming of cell locks by inmates did not constitute negligence on behalf of the Parish. Also, due to the Parish’s third party demand against the prison officials seeking indemnification or, alternatively, contribution, the trial court had before it much evidence relating to whether or not there was actionable negligence on the part of the prison officials.


author: EDWARDS, Judge.

text:
    Leon D. WILLIAMS, III and Elizabeth Boyett Williams d/b/a Antique Building Materials v. William D. OURSO and Charbonnet, Inc.
    No. 14495.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1981.
    Bryan E. Bush, Jr., Anthony J. Marabella, Jr., Baton Rouge, for plaintiffs-appellants Leon D. Williams, III and Elizabeth Boyett Williams — d/b/a Antique Building Materials.
    Thomas H. Benton, Patrick J. Cooper, Baton Rouge, for defendants-appellees William D. Ourso and Charbonnet, Inc.
    Before CHIASSON, EDWARDS and LEAR, JJ.
   EDWARDS, Judge.

Plaintiffs, Leon and Elizabeth Williams, d/b/a Antique Building Materials, brought suit against William Ourso and Charbonnet, Inc. The plaintiffs’ petition made the following allegations: Plaintiffs operate a business known as Antique Building Materials, which engages in purchase for resale of salvage and antique building materials. Charbonnet, Inc. owns a large tract of land located on Brightside Lane in Baton Rouge, Louisiana, upon which it has developed a subdivision known as River Bend. Ourso, the president and majority owner of Char-bonnet, Inc., agreed to allow plaintiffs to use a piece of land adjacent to River Bend Subdivision in order to store materials and supplies which they sold in the course of their business. Plaintiffs offered to pay rent for the use of the premises but Ourso refused to accept it. However, he did occasionally accept donations in the form of free building materials and discounts on purchases. Plaintiffs used the property from July, 1976, until September 2, 1979, and accumulated a large amount of antique and salvage materials on the premises. On September 2, 1979, Ourso, without notice to petitioners or the use of legal process, seized all materials and property on the lot and burned and otherwise destroyed them.

Plaintiff sought recovery of $70,350.95 for the value of the materials destroyed and $130,000.00 for loss of business and goodwill.

Defendants denied plaintiffs’ allegations. Defendants’ answer alleged the following: Plaintiffs began using the land in question without defendants’ permission and after being questioned by Ourso about this, Leon Williams asked to rent the tract of land. Williams did not have the money to pay rent but agreed to give defendants discounts on future purchases until he could afford to pay an agreed upon rent of $200.00 per month. Plaintiffs failed to keep up the property, scattering material haphazardly about and making holes in the ground. Despite defendants’ repeated requests, plaintiffs failed to clean up the property. Ourso ordered plaintiffs to vacate the property after receiving a notice from the City of Baton Rouge ordering him to clear the property within 30 days. Plaintiffs removed all material of any value owned by them from the property except for about fifteen pallets of bricks. On September 2, 1979, defendants had the land cleared and burned all the trash, scrap and rotten lumber left behind, taking special care not to damage plaintiffs’ bricks.

Defendants filed a reconventional demand, seeking to recover from plaintiffs back rent due in the amount of $7,600.00 (38 months at $200.00 per month) and $3,000.00 in expenses incurred in restoring the land.

After trial on the merits the trial court rendered judgment on the main demand in favor of the defendants, dismissing plaintiffs’ action. The trial court also dismissed the reconventional demand. Plaintiffs’ motion for a new trial, alleging that the judgment was contrary to the law and evidence was denied.

The Williams have appealed contending that the trial court erred in holding that they did not prove by a preponderance of the evidence that the destroyed materials were of any value and in denying the motion for a new trial. They also assign error to the trial court’s conclusion that their income tax returns, prepared the weekend before trial, were less valuable as evidence than they would have been had they been prepared in due course and filed timely with the federal government.

The trial judge gave extensive oral reasons for judgment. These reasons are reproduced in an appendix attached to this opinion. After a thorough review of the record, we are unable to say that the trial court’s factual conclusions are manifestly erroneous. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Canter v. Koehring Co., 283 So.2d 716 (La.1973).

Therefore, the judgment of the trial court is affirmed. Costs of this appeal are to be paid by plaintiffs-appellants.

AFFIRMED.

APPENDIX

THE COURT: All right. This suit was brought by Leon and Elizabeth Williams, doing business as Antique Building Materials, versus William D. Ourso, and a corporation by the name of Charbonnet, Incorporated. Evidence in this case is uncontra-dicted in that the piece of land in question, particularly with Mr. Ourso’s testimony, because nobody refuted it, the land was owned by Hope Developers. So Charbon-net, Incorporated apparently, Charbonnet, Incorporated developed the subdivision and Mr. Ourso is a party personally to this suit. This is a suit against Mr. Ourso and Char-bonnet based upon the allegations that there was some $71,988.14 worth of the plaintiffs’ property on this land, and that over the Labor Day weekend of 1979 that Mr. Ourso did burn all of that property, and for that the plaintiffs seek that amount, and in addition seek a sum for a hundred and thirty thousand dollars for loss of business and good will. The defendants in this case reconvened basically on two grounds. First, they claim that an oral contract of lease existed between them and the Williams to pay rental in the sum of two hundred dollars a month, which they allege to be thirty-eight months, which was a total of $7,600.00, which the plaintiffs in reconvention allege has never been paid. In addition to that, evidence came out in this case whereby there was a bid made for the restoration of the land as a result of the defendants in reconvention use of the land, whereby it would cost a sum of two thousand dollars to put it back in shape. Which means that we have a claim for destroyed materials on the main demand and we have a claim for rent and restoration on the reconventional demand. One counsel stated in his closing argument that the evidence in this case is diametrically opposed. The Court’s thoughts during this case was that probably it was a good thing that neither party asked for a jury trial because the Court wonders how a jury would ever arrive at a verdict. Because in that case there would be twelve people rather than one. The only thing that the Court can do with the diametrically opposed testimony in the case is to apply the principles of law that we must apply that have been set up over the period of years for Courts to decide civil disputes. Basically, we must, the Court must evaluate the evidence in this case, all of the evidence that’s been presented, and to decide each demand whether the person or persons claiming those demands or making those claims have proved their cases by a preponderance of the evidence. It may be out of order, but the Court first would like to deal with the reconventional demand. The testimony in this case, which was uncontradicted in the beginning was that Mr. — the plaintiff, Mr. Leon Williams met with Mr. Will Ourso at one time at the Hilton, and in their discussion they were apparently — Mr. Ourso in development and construction and Mr. Williams in the antique building materials business, and in their discussion of business, some how or another, it ended up that Antique Building Materials utilized certain property which Mr. Ourso stated belonged to Hope Developers, but that was basically his property and any permission to go on it, of course, was given by Mr. Ourso. And so the Court would merely discuss the relationship from the point of view of Mr. Ourso without worrying about the corporate situations. The record shows that some time during the latter part of ’76 or maybe the first part of ’77 that Mr. Williams and Miss Williams’ business, Antique Building Materials, began to occupy this land. The Williams, of course, indicated that Mr. Ourso indicated to them that they could stay there without paying any rent and that they were free to use the property for the storage of their antique materials. Mrs. Williams testified that no rent was discussed. The lot was in a grown up cattle pasture, and that Mr. Ourso freely allowed them to use this property. Mr. Ourso, on the other hand, takes the position that he always said that he wanted two hundred dollars a month for this property, and that after he told them to leave the property that it would have cost him two thousand dollars to restore the property had he allowed Mr. Jarvis to do it. On the reconventional demand the Court must say that in this case the plaintiff in reconvention is very experienced in the field of real estate. He certainly should have realized that leases should be in writing, and if they aren’t, after a certain period of time if people are not paying the rent, they should file a suit for eviction to bring them off. The Court feels that this evidence has not shown any evidence of any contract of lease on this property nor any agreement on the part of the people occupying the land to restore it. The Court can not sustain the claim for the reconventional demand. On the main demand, this is an action for conversion. The law is clear that in a conversion, in the' event property is converted and is destroyed, the one who converts it must, if it proved, must make reparation. There has been testimony in this case that Mr. Ourso burned their property and there have been no specific reasons stated as to why he would do that. The testimony in the case, just for the record, I must say that Mr. Ourso did state that he had been receiving complaints and that even the local government sent him notice that this lot must be cleaned up. There was testimony that part of it was because of the fact that there was an old shack on it, but it’s also fair to state that in the request by the neighborhood improvement division of the City-Parish government it did state, Mr. Ourso would be required to clean the premises of scattered lumber. In defense of this action, after the plaintiff’s case, the defendant called certain witnesses because there was a question as to whether or not the merchandise, or the stock or whatever it might be, had been moved. Mr. Leon Williams, one of the plaintiffs in this matter, was called under cross-examination. He stated, as the Court recalls, that he did move some of the materials off after he was informed that he should get off. He stated that a great part of his business was finding materials at the demolition site and delivering them directly to the buyer. He further stated that the storage area in question was kept more or less as a nest egg, and that the main business he did was finding materials and delivering them directly. He, as I stated before, he stated that he had moved part of the materials off. He stated that his business has fallen off because of the fact that the economy in the building situation is like it is. That was basically his testimony in regard to the main demand. Mr. Charles Hubbs, the design and development consultant for River-bend, also — somewhat, I guess you would say, friend with Mr. Ourso, mentioned that he had eaten there and visited the site periodically or the subdivision. But, he stated that he had passed the site daily. The property was being utilized for the storage of materials. He visited the site prior to Labor Day and that he saw some materials on there, but they were not worth hauling off, and that there were also some old brick there. And he said that the lumber or the other materials were not stacked neatly, and that all of the stacks had been removed. Mr. Whittington, who builds in that subdivision, looked at the site personally about a day or two before the fire, and he did not see anything of value. He saw there was lots of pieces of broken up lumber. He stated that he did not see anything in the shack. Mr. Jarvis, who apparently does land clearing for a living, he stated that he did, he said he has done work for Mr. Ourso in Riverbend. He gave a bid on that site. He went there on Labor Day weekend and he found a bunch of trash and bricks, and he gave Mr. Ourso an estimate of about two thousand dollars. Mr. Ourso said that if he used the bulldozer himself that Mr. Jarvis stated he would give him a break of five hundred dollars. And thereafter he went back and he said that because of the work that Mr. Ourso had done, it would probably cost more money to do. He further stated that he saw nothing in the shack. Mr. Milton Ourso said he went down there and he said there was nothing of any value on the place. Miss Mizell testified that there had been trucks leaving the property for several weeks. It looked as though they were hauling off their materials. Mr. Major testified in this case that he is a builder and a carpenter. He is a builder of antique furniture. He readily admitted that he did business with the plaintiffs at the beginning, but for some reason or another that they had fallen out and as a result he didn’t do business with them any longer. He was candid in that. But, nevertheless, he said that he used to do exercise, ride his bicycle by the site because he lived near there. He said for about five weeks it seemed that the Williams were moving the inventory off of the property, and he said that there was a continuing lessening of the inventory there with piles of lumber disappearing. He stated it was his opinion that they were moving off of the place. He said there was one stack of lumber left by the old house and that there was some bricks. He stated that there could have been maybe three thousand board feet of lumber, and there were varying kinds of lumber there. Of course, it must be stated by the Court as well, there was the old shack there that also was part of the material that was burned. That is basically the defense’s case in this matter. The Court must then apply the evidence put forth by the plaintiff in this case to determine if that was proved by a preponderance of the evidence. Mr. Ourso was of course called on cross-examination. The Court has already stated that he did feel that the material there except for the brick that was left was scrap and therefore he burned the material, the debris on the lot and left the bricks, pushed the bricks, left the bricks there somewhere on the property. In this case, since a claim has been made for damages, the Court must then determine if the plaintiff has proved damages and what damages have been proved to a reasonable certainty by a preponderance of the evidence. Mrs. Williams testified that she knows from her memory the property that was left on the subject tract of land that belonged to her. The Court asked her directly if that business maintained an inventory of its property, and the answer was to the effect that it did not maintain a book with the inventory of the property. She stated that the value of the property, as to their cost, was.$33,681.00. She stated that she could get for that $71,988.14. There has been, of course, no other testimony as to the market value of that property, and basically other than the invoices that — basically the wholesale value, and some areas are speculative. To substantiate that figure the accountant testified that on the 1979 income tax return an involuntary conversion of a loss of inventory in the amount of $33,681.00 was claimed. As has been pointed out, evidence on this income tax return, the problem with that is the fact that on the ’78 return it was not prepared until last weekend, which was required to be filed in April, 1979. This was a business with a gross sales, according to schedule (C) in 1978 of a hundred and fifty-six thousand dollars, yet no income tax return whatsoever was filed. This was a business that in 1979 grossed sales of $128,170.00, and up until the Friday before this trial on a Monday no income tax return was filed. The accountant testified that of course he had had a little sickness and was busy, and although this is not a tax case, I’m certain that the Federal authorities would not accept that as an excuse for not filing an income tax return. Because of the late preparation of that return of course, the evidence in that matter as to substantiate the loss is less valuable because it was not filed in due course. In so far as the corroboration of what was left on the property, Mrs. Williams stated with particularity what she remembered was on the property, and did state that she had a good memory, but had no inventory. In so far as the bricks were concerned, she stated that the bricks were removed after the fire. Mr. Royal, of course, stated that his company had delivered some material. On rebuttal, taken out of order, was Mr. Harold Burns. He stated that he had bought some materials from the Williams. He bought the materials last on July the 9th, but he was on the property on August the 28th. He said that there was quite a bit of stuff in the building and things around. He stated that there were — He continued — He stated that the inventory kept increasing during the summer of 1979. Mr. Heroman testified that he had been out to the property quite a bit, and he testified as to some property being there right before the fire. He did not substantiate the amount of the property as testified to by the plaintiff, Miss Williams. And the thing that concerns the Court particularly is that Mr. Burns, although he testified that the inventory kept increasing, Mr. Heroman’s testimony does not reflect that, nor does the testimony of Mr. Leon Williams himself, who stated that he moved some of the materials off of the property. You then have a situation where without a written inventory, basically on the memory of one of the plaintiffs, this Court is asked to assess damages in the amount of seventy-one thousand dollars. And the Court feels that the law is clear that the Court can not do that. It has not been proved by a preponderance of the evidence. Of course, there is evidence that there may have been some amount, and the Court can not determine if it had any value or not. It has not been proved to a certainty. The Court may say in mitigation of that fact that these plaintiffs did utilize the defendants property for some thirty-three months. And to accept Mrs. Williams value of the rental, that alone, had the Court awarded use of the — for rental use, it would have been some forty-nine hundred and fifty dollars. Plus, if the Court accepted the two thousand dollar clearing, that would have been sixty-nine hundred. And that would more than compensate what the Court feels has been shown, if anything, was left on this property. Based upon that, the plaintiff’s suit is dismissed at plaintiff’s cost. Judgment will be signed accordingly. The reconventional demand is dismissed as well. Adjourn Court until 9:80 tomorrow morning.

* * * END OF TRIAL * * *


author: LEAR, Judge.

text:
    In the Matter of D. A. DELAHOUSSAYE D/B/A Top Crop Seed and Supply Company, et al.
    No. 14516.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1981.
    Rehearing Denied Feb. 16, 1982.
    Frank Maraist, Baton Rouge, and Desho-tels & Deshotels, Kaplan, for plaintiff-appellant D. A. Delahoussaye, d/b/a Top Crop Seed & Supply Co.
    Robert Leake, and Winston W. Riddick, Baton Rouge, for defendants-appellees Commissioner of Agriculture, Fertilizer Commission and State Chemist.
    Carmack M. Blackmon, Asst. Atty. Gen., Rose Polito Wooden, Asst. Atty. Gen., La. Dept, of Justice, Baton Rouge, for defendant-appellee Louisiana Department of Justice.

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

This suit arose from a joint petition for a declaratory judgment, which was filed by (1) Gilbert M. Dozier (Commissioner of Agriculture); (2) the Fertilizer Commission of the State of Louisiana; (3) Dr. E. A. Epps, Jr. (the Louisiana state chemist); and (4) D. A. Delahoussaye d/b/a Top Crop Seed and Supply Company. The first three petitioners are hereinafter referred to as the “Ag Group.”

The Ag Group administers LSA-R.S. 3:1311, et seq., regulating the licensing of manufacturers and distributors of fertilizer and the testing and sampling of fertilizers made and/or sold in Louisiana.

There was a dispute between the Ag Group and Delahoussaye regarding the validity of the procedures used by the Ag Group in both licensing and testing and sampling, the issue being whether or not these procedures violated the due process provisions of both the state and federal constitutions and/or exceed the authority granted to the Ag Group by the above cited statutory provisions.

During April-June of 1978, Delahoussaye was assessed penalties of over forty-five hundred dollars for alleged violations of the law regulating the sale and distribution of fertilizers. Delahoussaye refused to pay the assessment, contending that “said assessments were erroneous and resulted solely from the improper procedures utilized by the Commissioner of Agriculture, the Fertilizer Commission and the State Chemist.” Delahoussaye was then notified that his license to manufacture and sell fertilizer would be revoked for his failure to pay these penalties, at which time he (Delahous-saye) requested an opportunity to be heard prior to the revocation. While it is agreed by the parties that some type of “hearing” was arranged, we are unable to determine from the record whether this “hearing” was to be an ample and adequate opportunity for Delahoussaye to present his case and for the legal issues to be addressed. The record merely indicates that Delahoussaye’s counsel was present at that “hearing” and objected to the manner in which the hearing was being conducted. The parties, both Delahoussaye and the Commissioner of Agriculture, who was conducting the hearing, at that point apparently agreed that this dispute could not be adequately addressed and/or settled within the context of this “hearing”. They then agreed that Dela-houssaye would pay the assessments under protest, reserving his right to contest the assessments, and that they would file a joint petition in the district court, seeking a declaratory judgment in this matter.

A joint petition for declaratory judgment was signed and filed by all parties to this dispute. As required by La.C.C.P. art. 1880, a copy of the petition was served on the attorney general, who then filed dilatory exceptions of prematurity and vagueness and a peremptory exception of no cause of action. The trial court granted the prematurity 1 exception, finding that LSA-R.S. 3:1312 G affords appellant “an opportunity to be heard in his defense”, which administrative remedy he failed to exhaust. Judgment was signed, dismissing the suit without prejudice, and Delahoussaye appealed.

The “opportunity to be heard in his defense” relied upon by the trial court, is found in LSA-R.S. 3:1312 G, which provides, in pertinent part, as follows:

“If it appears that any of the provisions of this part have been violated, the commissioner shall certify the facts to the proper prosecuting attorney .... The commissioner shall cause notice to be given to the manufacturer-dealer from whom the sample was taken. Any party so notified shall be given an opportunity to be heard in his defense ... before the facts shall be certified to the proper prosecuting attorney.” [Emphasis added.]

We find that this specific provision giving the manufacturer-dealer from whom the sample was taken “an opportunity to be heard in his defense” applies only to situations where the commissioner intends to certify the facts of the violation and the results of the analysis or other examination of the fertilizer to a prosecuting attorney.

It appears, however, that the actions of the commissioner in this instant case were taken under the provisions of LSA-R.S. 3:1314 and 1315, which provide, in pertinent part, that:

“Section 1314. Penalties
“Whenever the commissioner shall be satisfied that a given lot or shipment of fertilizer is deficient in one or more guaranteed plant foods, a penalty shall be assessed against the guarantor .... ”
“Section 1315. Cancellation of registration; causes for
“Repeated failure of a registrant to meet the guaranteed weight or analysis of a fertilizer or to fail to make payment of the inspection fee, or to fail to pay penalties assessed shall be considered just cause for cancellation of a manufacturer registration.”

When the issue of plaintiff’s failure to exhaust his administrative remedies is raised by the exception pleading prematurity (as here), the defendant (exceptor) pleading the exception has the initial burden of showing that an administrative remedy is available, by reason of which the judicial action is premature. Steeg v. Lawyers Title Insurance Corporation, 329 So.2d 719 (La.1976). We find it significant, however, that nowhere in these statutory provisions, under which these penalties were assessed and the revocation proposed (R.S. 3:1314 and 1315), is any type of administrative hearing or opportunity to be heard mandated, required, provided for or even suggested. Were such the case, the commissioner would have a right to compel appellant to exhaust those administrative remedies prior to seeking judicial relief.

Although some type of “hearing” was begun at the agency level, the record clearly indicates that both appellant and the agency, through the Commissioner of Agriculture, agreed that this type of agency forum could not or would not properly address the factual and legal issues involved in this dispute, and they have long since abandoned the administrative forum.

Because we find that an adequate administrative hearing is not mandated (or even provided for) by statute, nor is appellant demanding any such opportunity to be heard at the agency level, appellant’s suit, in which the Commissioner of Agriculture has joined, is not premature and is properly before the district court.

For the foregoing reasons, the judgment of the trial court sustaining the exception of prematurity is reversed and this cause is hereby remanded to the trial court for further proceedings in conformity herewith.

Costs of this appeal in the amount of $164.36 are to be paid by appellees.

REVERSED AND REMANDED.


text:
    Robert G. CLAITOR v. Ray A. JUBAN.
    No. 15028.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1981.
    Cordell Haymon, Baton Rouge, Mack E. Barham, New Orleans, for plaintiff-appellant Robert G. Claitor.
    Lewis 0. Unglesby, Baton Rouge, for in-tervenors-appellees Henry Tauzin, d/b/a Mo’s Buster Brown Shoes; Fred H. Ress, Jr. & Lois K. Ress, d/b/a Sew and Sew Fabrics Anthony A. Bordelon d/b/a Borde-lon’s Sewing Center, Tri-J Enterprises, Inc. and Adventures, Inc.

      Joseph E. Juban and Michael Patterson, Baton Rouge, for defendant-appellee Ray A. Juban and Juban Properties, Inc.
    Before CHIASSON, EDWARDS and LEAR, JJ.
   LEAR, Judge.

Upon lodging, it was noticed by the court that the record on appeal did not contain a signed copy of the final judgment. On that basis, the court, ex proprio motu, issued an order to the parties to show cause why the appeal should not be dismissed.

Thereafter, and in response to the show cause order, plaintiff-appellant submitted to this court a copy of the final judgment below, which had been signed by the trial court on October 30, 1981. Also submitted by appellant was an affidavit by the trial judge, the Honorable Melvin A. Shortess, attesting to the fact that the copy of the judgment submitted by appellant “is an exact copy of the judgment as previously rendered by him [the trial judge] and signed by him on October 30, 1981.” Also filed with the judgment was an affidavit of the trial judge’s secretary, who stated that she received the original of the judgment signed by the trial court on October 30, 1981.

For whatever reason, the original judgment, signed by the trial court on October 30, 1981, was not included in the record as lodged on appeal. We find, however, that a final judgment was signed prior to the granting of this appeal, and for this reason the show cause order previously issued by us should be and it is hereby recalled, vacated and set aside and the appeal is maintained.

ORDER TO SHOW CAUSE WHY APPEAL SHOULD NOT BE DISMISSED RECALLED, VACATED AND SET ASIDE.


author: REDMANN, Judge.

text:
    Bridget A. HEBERT v. Rosario GUASTELLA, Jr., et al.
    No. 12225.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1982.

      Singerman, Cosentino, Toups & Troyer, John P. Cosentino, New Orleans, for plaintiff-appellant.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, John G. Gomila, Jr., New Orleans, for defendant-appellee Travelers Ins. Co.
    Before REDMANN, GULOTTA and BARRY, JJ.
   REDMANN, Judge.

An insured appeals from a summary judgment dismissing part of her claims against her insurer. She sought both uninsured motorist insurance benefits and damages from (or injunctive relief against) the insurer having treated a passenger’s uninsured motorist claim as, instead, a liability claim.

The summary judgment motion theorized that a liability insurer’s contractually preserved right to settle claims “as it deems expedient” places such a settlement beyond review by “vestftng] the insurer with absolute authority to settle,” citing Employers’ Surplus L. Ins. Co. v. City of Baton Rouge, 362 So.2d 561 (La.1978).

Employers affords no support to the summary judgment appealed from. Employers in fact reversed a summary judgment that would have made the insured provide the $10,000 deductible portion of a $75,000 settlement. Employers does recognize the insurer’s right to settle, but that was not the issue there and is not the issue here. The issue is whether, in the absence of either the insured’s consent or a final judgment of court, the insurer can impose an expense upon the insured under the “as it deems expedient” clause. Could Employers make Baton Rouge pay $10,000 deductible by settling without its consent and without a final adjudication? Can the insurer here make Bridget Hebert pay higher premiums by categorizing an uninsured motorist claim settlement as a liability settlement without her consent and without any possibility of judicial review? Employers answered the first question no. We answer the second one no.

Our ease does not involve settlement of a liability claim, but settlement of a passenger’s casualty claim as if it were a liability claim: the passenger sought reimbursement under uninsured motorist coverage and the insurer elected on its books to treat its settlement as a liability settlement and to treat plaintiff, its own insured, as at fault.

The question of whether plaintiff is at fault is one on disputed facts, that remain in dispute in the other part of this very case in the trial court, in plaintiff’s demand for uninsured motorist benefits for herself. Because this same litigation between insured and insurer may decide that the insured was not at fault, it is unreasonable to allow the insurer to act on its own motion on the premise that the insured was at fault, to increase the insured’s premiums in the future. Employers entailed no such inconsistency, and would not prevent a court, after deciding that the insured was not at fault, from enjoining the insurer to reduce its premiums to eliminate (or refund) any increase attributed to the insured’s non-existent fault, and enjoining the insurer not to communicate to other insurers its erroneous conclusion concerning its insured’s fault.

Summary judgment was therefore improper.

Reversed at Travelers Insurance Company’s cost.


author: GULOTTA, Judge.

text:
    Scott SINGLETON v. GULF COAST TRUCK SERVICE, INC., et al.
    No. 12221.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1982.
    Melvin Ripp, Jr., New Orleans, for plaintiff-appellee.
    Lemle, Kelleher, Kohlmeyer & Matthews, Michael J. Furman, New Orleans, for defendants-appellants.
    Before REDMANN, GULOTTA and BARRY, JJ.
   GULOTTA, Judge.

In this suit, under LSA-R.S. 23:631(A) and LSA-R.S. 23:632, Gulf Coast Truck Service, Inc. and Rolie Harris were cast in judgment in solido for $1,216.94 in unpaid wages, less a credit of $269.26; and Gulf Coast was cast for $2,500.00 in attorney’s fees. Penalty wages were disallowed.

Rolie Harris has not appealed. Gulf Coast, appealing, claims that Scott Singleton was employed as a truck driver by Harris and not by Gulf Coast, and that it was Harris’ responsibility to hire, fire, supervise, manage and pay plaintiff in accordance with the contract entered into between Gulf Coast and Harris. Gulf Coast further claims that, if indeed, plaintiff was an employee of Gulf Coast, he was not employed by the hour, day, week or month and, therefore, not entitled to the benefit of LSA— R.S. 23:631 and 632. Finally, Gulf Coast claims the trial judge erred when he dismissed its third party demand against Harris for reimbursement of advances made to Harris.

Gulf Coast, an interstate freight carrier, leased a tractor from Rolie Harris to be used in transporting its loaded trailer. According to the terms of the agreement, Harris was to receive a minimum of 62% of the gross revenue derived by Gulf Coast from the use of the truck. The lease further provided that Harris, among other things, would retain responsibility for hiring, setting the wages, hours and working conditions, as well as supervising, training, disciplining and firing all drivers. The drivers and workers were to remain the employees of Harris, according to the lease terms.

Despite the recitations in the lease, the evidence supports the apparent factual conclusions reached by the trial judge that plaintiff was employed by both defendants; was supervised, managed and controlled by Gulf Coast; and was to be paid 20% of the amount received from the operation of the truck.

Plaintiff testified that he had contacted Harris regarding employment as a truck driver. Arrangements were later made by Harris with plaintiff to meet with Gulf Coast personnel in Houma, Louisiana. At this meeting between plaintiff and Mark Geisinger, operations manager for Gulf Coast, plaintiff was told that he would receive 20% of the revenue derived from the load carried by him. Plaintiff testified that Gulf Coast employees provided him with an employment application, a certificate that he had passed an I.C.C. examination and a medical card. According to Singleton, discussions were had with Geisinger concerning pay and not with Harris.

Plaintiff was taken to the Gulf Coast-Shreveport office where he commenced his truck driving employment on October 10, 1977. While driving his route and on arrival at his destination, Singleton received instructions and advances for expenses from Gulf Coast. Singleton worked for a period of two months during October, November and December driving the tractor trailer on interstate routes. Exhibits included in the record show purchases for fuel are in the name of Gulf Coast.

Plaintiff testified further he received his instructions from Gulf Coast and was supervised and controlled in his operations by Gulf Coast. However, on one occasion when the truck broke down, he contacted Harris and was picked up by Harris from the disabled truck. On this occasion and subsequently, Singleton talked with Harris about getting his unpaid wages and Harris informed him that he would talk to Gulf Coast. Plaintiff stated further that on several occasions in December and in January, he had tried unsuccessfully to obtain his back pay from Gulf Coast and Harris. Harris, on the other hand, testified that the $269.00 was paid to plaintiff by Harris’ wife on one occasion when Singleton sought his pay. Finally, Singleton testified he was under the impression that he had been employed by Gulf Coast and that the tractor trailer driven by him was the property of Gulf Coast and not Harris.

Harris stated that he was the owner'of the tractor trailer leased to Gulf Coast and that Singleton was to be paid monthly based on the gross revenue derived from the operation of the truck. Harris stated that he had refused plaintiff’s several requests for pay since he had not received payment from Gulf Coast. According to Harris, other than the conversations about the unpaid wages, he had no conversation with Singleton prior to employment regarding pay. Harris further testified that Singleton was supervised and managed by Gulf Coast and that the $269.00 payment made by him to Singleton represented 20% of the funds received by him from Gulf Coast. Singleton denied that he received any amount from Harris.

In deposition, Doug Brannan, the sole stockholder and president of Gulf Coast Truck Service, Inc., stated that Gulf Coast had leased the truck from Harris, who was responsible for payment of the driver’s wages. Brannan stated that payment to the truck owner is calculated from freight bills and paper work presented to Gulf Coast, and that delays in receiving paper work from Singleton had caused the delay in payment to Harris. According to Bran-nan, however, Harris was not only paid in full, but overpayments were made and repairs to Harris’ truck paid by Gulf Coast had not been reimbursed. Brannan testified that Harris presented Singleton to Gulf Coast as his driver and that no arrangements were made by Gulf Coast with Harris for the amount of wages to be paid. Finally, Brannan stated that Singleton was not an employee of Gulf Coast but of Harris.

Having considered the evidence, we cannot conclude the trial judge erred when he apparently determined that Singleton was a Gulf Coast employee as well as a Harris employee. Accordingly, we find no error in the judgment against Gulf Coast for the unpaid wages.

We reject Gulf Coast’s claim that because arrangements were made by Harris to plaintiff for payment on a percentage of the gross revenue derived from the operation of the truck, LSA-R.S. 28:631-632 do not apply. Although Gulf Coast argues that the statutes apply only to employees paid “by the hour, day, week or month,” the Louisiana Supreme Court has construed this statutory phrase as descriptive of the “pay period, rather than the method of calculating wages.” See Mason v. Norton, 360 So.2d 178 (La.1978). Harris testified that plaintiff was to be paid monthly a percentage of the revenue the truck produced. Under the circumstances, we conclude plaintiff’s employment was “by the ... month” and he is covered by the statute.

We further find no error in the attorney’s fees award in conformity with LSA-R.S. 23:632. This statute provides that reasonable attorney’s fees shall be allowed “. . . in the event a well-founded suit for any unpaid wages whatsoever, be filed by the laborer or employee after three days shall have elapsed from time of making the first demand...” Because plaintiff has established entitlement to unpaid wages and because the evidence clearly established that repeated demands for payment were made to Gulf Coast and Harris by Singleton, the trial judge properly awarded attorney’s fees. We consider the $2,500.00 fee a reasonable amount for the trial and appeal. We decline to award additional attorney’s fees.

We find merit, however, to plaintiff’s contention that he is entitled to penalty wages. LSA-R.S. 23:632 provides that any employer who fails or refuses to comply with the provisions of R.S. 23:631 “shall be liable ... either for ninety days wages .... or else for full wages from the time the .... demand for payment is made until the employer shall pay or tender the amount of unpaid wages . . . whichever is the lesser amount.”

This penal provision must be strictly construed and is not applicable where there is “equitable defense” such as a bona fide dispute concerning whether wages are due the employee. Sifers v. Exxon Corp., 338 So.2d 763 (La.App. 4th Cir. 1976); Otwell v. Howard Lumber & Supply Company, Inc., 283 So.2d 826 (La.App. 2nd Cir. 1973). Thus, no penalty is imposed where the particular facts “strongly indicate that greater justice will be attained” by refusing the penalty. See Otwell v. Howard Lumber & Supply Company, Inc., supra. Nevertheless, the statute does not permit the employer’s desires, conveniences or procedures to condition the payment of wages. Duhon v. Prof Erny’s Music Company, Inc., 328 So.2d 788 (La.App. 3rd Cir. 1976).

In our case, plaintiff made repeated demands for his pay on both Gulf Coast and Harris, to no avail. He further testified that he submitted freight bills for his wages at the New Orleans office of Gulf Coast, but did not receive wages for his services during the two month period from mid-October to mid-December. He stated that Gulf Coast’s agent, Geisinger, told him that the company was having “paper work problems” and that he would receive something in the mail “next week”. Despite appellant’s reliance on its contract with Harris to the effect that Harris was responsible for paying plaintiff his wages, we conclude there was no justification for Gulf Coast’s failure to pay plaintiff’s wages promptly on demand. Under the circumstances, we conclude the trial court erred in failing to award penalty wages in the amount of $1,825.41.

Accordingly, that part of the judgment in favor of plaintiff for unpaid wages and attorney’s fees is affirmed. It is further ordered that penalty wages be awarded in favor of Scott Singleton and against Gulf Coast Truck Service, Inc. in the amount of $1,825.41, together with legal interest from date of judicial demand until paid. Costs to be paid by Gulf Coast Truck Service, Inc. As amended, the judgment is affirmed.

AMENDED AND AFFIRMED.

      . LSA-R.S. 23:631(A) and LSA-R.S. 23:632 read as follows:
      “§ 631. Discharge or resignation of employees; payment within three days after termination of employment.
      A. Upon the discharge or resignation of any laborer or other employee of any kind whatever, it shall be the duty of the person employing such laborer or other employee to pay the amount then due under the terms of employment, whether the employment is by the hour, day, week, or month, not later than three days following the date of discharge or resignation. Said payment shall be made at the place and in the manner which has been customary during the employment, except that payment may be made via United States mail to the laborer or other employee, provided postage has been prepaid and the envelope properly addressed with the employee’s or laborer’s current address as shown in the employer’s records. In the event payment is made by mail the employer shall be deemed to have made such payment when it is mailed. The timeliness of the mailing may be shown by an official United States postmark or other official documentation from the United States Postal Service.

      “632. Liability of employer for failure to pay; attorneys’ fees
      Any employer who fails or refuses to comply with the provisions of R.S. 23:631 shall be liable to the employee either for ninety days wages at the employee’s daily rate of pay, or else for full wages from the time the employee’s demand for payment is made until the employer shall pay or tender the amount of unpaid wages due to such employee, whichever is the lesser amount of penalty wages. Reasonable attorney fees shall be allowed the laborer or employee by the court which shall be taxed as costs to be paid by the employer, in the event a well-founded suit for any unpaid wages whatsoever be filed by the laborer or employee after three days shall have elapsed from time of making the first demand following discharge or resignation.”

      . In answer to the appeal, plaintiff seeks increased attorney’s fees, penalty wages and damages for frivolous appeal. Because we conclude the issues raised in the appeal are serious, we decline to award damages for frivolous appeal. See LSA-C.C.P. Art. 2164; Parker v. Interstate Life & Accident Insurance Co., 248 La. 449, 179 So.2d 634 (La.1965).

      . Plaintiff testified that the total revenue generated by his trips from mid-October to mid-December, 1977 was $6,084.72. Because he was entitled to 20% of the gross revenue, the trial court awarded $1,216.94 as unpaid wages, less a credit of $269.26. This $1,216.94 figure represents two months work at the rate of $608.47 per month. Under LSA-R.S. 23:632 plaintiff would be entitled to penalty wages in the amount of “ninety days wages at the employee’s daily rate of pay.” We conclude, therefore, that plaintiff is entitled to a penalty of three months pay at $608.47 per month for a total of $1,825.41.