author: KLIEBERT, Judge.

text:
    Vickie Ann Riley White, wife of Gerald Robert WHITE v. Gerald Robert WHITE.
    No. 11853.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 5, 1981.

      Charles W. Dittmer, Jr., Martzell, Monte-ro & Lamothe, New Orleans, for plaintiff-appellee.
    Richard J. Boutall, Metairie, for defendant-appellant.
    Before REDMANN, BARRY and KLIE-BERT, JJ.
   KLIEBERT, Judge.

Gerald Robert White (hereafter White), appellant, was made defendant in a suit for separation filed by his wife, Vickie Ann Riley White (hereafter Vickie Ann), appel-lee, on June 27,1977. White was personally served. A custody and support agreement was voluntarily entered into. Under this agreement, White was to pay his child’s nursery tuition. From the record, it may be noted that with the passage of time the original friendliness between the parties abated. This apparently resulted in both parties substituting lawyers on several occasions during the pendency of the litigation. The suit for a separation was heard on February 28, 1978 and a judgment of separation based on mutual fault was read on February 28 (although not rendered and signed until June 22, 1978). This judgment granted to White visitation rights, imposed support payments of $150.00 per month and required White to post a $3,000.00 bond before taking the child out of the State of Louisiana. The judgment which was read on February 28, 1978 also ordered a March 21,1978 hearing to re-fix the amount of the support payments. The hearing was held, and by order dated April 13, 1978, support payments were fixed at $200.00 per month commencing April 1, 1978.

Subsequently, on April 24,1978, a rule for contempt and to make past due support payments executory was filed by the wife. This rule was dismissed for non-appearance of the parties. In August, 1979, another rule for contempt and to make past due support payments executory was filed. This was filed by the wife, Vickie Ann Riley, in proper person. A notation to the clerk in the rule directed service on White under the “long arm Statute”. At an October 12, 1979 hearing of the rule, the wife, Vickie Ann, appeared through her attorney. No appearance was made by White, the husband defendant. The judgment based on this hearing, rendered on October 17, 1979, held White in contempt, imposed a money fine and sentenced him to a jail term. Additionally, unpaid past due support, as alleged by the wife, was also made executory and future support was set at $650.00 per month.

In January, 1980, a petition for divorce, •grounded in the previous separation judgment, was filed in the Parish of Jefferson under the same docket number as that in which the separation judgment was rendered. White was alleged to be an absentee and a curator was appointed to represent him. Except for the appearance by the curator, White made no appearance in the divorce proceeding. A judgment of divorce was granted with sole custody of the child being awarded to the wife and fixing support payments at $650.00 per month. On April 28, 1980, White appeared through an attorney and obtained an order for a devolutive appeal of the judgment rendered on October 17,1979 , which judgment made past due support payments executory, set future support payments at $650.00 per month and held White in contempt and sentenced him to a jail term and fine. The same order granted a devolutive appeal of the judgment rendered on March 27, 1980.

Appellant’s major contention on appeal is that the October 17, 1979 judgment is void and unenforceable because service of process was never effected upon him pursuant to La.R.S. 13:3204 and R.S. 13:3205 (the long arm statute). Additionally, he contends the judgment of March 27, 1980 was in error insofar as it rendered a monetary judgment against him for child support through a curator ad hoc. We agree with these contentions.

R.S. 13:3205 states that a default judgment cannot be rendered against an out-of-state defendant until thirty days after the filing in the record of an affidavit of the person who either mailed or actually delivered the process to the defendant. The record is devoid of any such service or affidavit in this matter. The only indicia of service was appellee’s counsel’s representations to the court that service was had through the long-arm statute. Such representations do not satisfy the requirements of R.S. 13:3205. While citation is not essential in a summary proceeding, a judgment rendered against a defendant who has not been served with process and who has not entered a general appearance is an absolute nullity. C.C.P. 2594, 2002(2), Thompson v. Courville, 372 So.2d 579 (La.App. 3rd Cir. 1979). Since the record reflects no service whatsoever in this matter, and since there is no evidence of appellant being given notice of the summary proceedings set for October 12, 1979, then the judgment based on this hearing and rendered on October 17, 1979 is an absolute nullity.

Being null from the inception, the October 17, 1979 judgment cannot serve as the basis for continuation of support in the divorce decree dated March 27, 1980 in the amount ($650.00) set by that judgment. However, the district court has continuing personal jurisdiction to modify child support awards and enter an award for arrearages if valid service is effected and if the evidence warrants such modification or award where there was personal jurisdiction in the initial setting of the support payments. Webb v. Webb, 357 So.2d 1288 (La.App. 3rd Cir. 1978). In the instant case, the April 13, 1979 judgment fixing child support at $200.00 per month was a valid order and, as such, can be reinstated in the divorce decree. There being no evidence adduced at the divorce hearing to support an increase in child support, the divorce decree rendered March 27, 1980 is amended to include child support in the amount of $200.00 per month.

For the foregoing reasons, the October 17, 1979 judgment of the district court is annulled and set aside. The March 27,1980 judgment of the district court is amended to fix child support in the amount of $200.00 per month and is affirmed in all other respects. Costs of appeal to be paid by appellant.

ANNULLED IN PART; AMENDED IN PART; AFFIRMED IN PART.

      . The October 17, 1979 judgment is properly before this Court even though the motion for appeal was not filed until April 28, 1980. The defendant-appellant was not served with a copy of the judgment as required by C.C.P. Article 1913, hence, the delays for appeal had not as yet expired when the motion for appeal was filed.


source: Caselaw Access Project

license: Public Domain

text:
    Geraldine Harris, wife of/and Charles HARRIS v. SEWERAGE AND WATER BOARD OF the CITY OF NEW ORLEANS, Michael A. Aicklen and St. Paul Fire and Marine Insurance Company.
    No. 11878.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 5, 1981.

      Pitard, Pitard & Porobil, Roy J. Di Vin-centi, III, New Orleans, for plaintiffs-appellants.
    Lemle, Kelleher, Kohlmeyer & Matthews, Paul B. Deal, New Orleans, for defendants-appellees.
    Before REDMANN, BARRY and KLIE-BERT, JJ.
   KLIEBERT, Judge.

This was a suit for personal injuries and property damages sustained in an accident at the intersection of South Claiborne Avenue and Cleveland Avenue in the City of New Orleans. After trial on the merits, the trial court dismissed the plaintiff’s suit. Plaintiffs appeal.

On October 26, 1977, at about 9:30 A.M., Charles Harris, plaintiff-appellant (hereafter Harris) was operating his taxicab, a 1973 Ford, in the center lane of South Claiborne Avenue from Canal Street westbound towards Tulane Avenue. At the same time, Michael Aicklen, defendant-appellee (hereinafter Aicklen) an employee of the Sewerage and Water Board of New Orleans (also defendant-appellee) was operating a 1974 Ford one-half ton pick-up truck from the I — 10 exit in the left lane of Cleveland Avenue southbound towards South Claiborne. As the vehicles approached the intersection of South Claiborne, both drivers thought they had a green light, so Aicklen attempted to turn right onto South Claiborne just as Harris was crossing the intersection of Cleveland and South Claiborne. The front of Aicklen’s truck struck the passenger side of Harris’ cab and according to Harris, knocked his car into a presently unknown third vehicle. Harris and his wife, Geraldine, sued for damages, seeking awards for pain and suffering, personal injuries, lost wages, medical expenses, and property damages. After trial on the merits, the trial court found that Harris had not proven his case by a preponderance of the evidence, and dismissed plaintiffs’ suit.

On appeal, plaintiffs contend the judgment was clearly erroneous and contrary to the law and evidence because the trial court erred in finding that plaintiff failed to prove their case by a preponderance of the evidence.

Michael Aicklen, defendant, testified that he exited 1-10 onto Cleveland Avenue. As he approached the intersection of Cleveland Avenue and South Claiborne Avenue, he stopped for a red light. When the light turned green, he began negotiating a right turn onto South Claiborne when he hit plaintiff, who Aicklen claimed had run a red light.

Charles Harris, plaintiff, testified that he was traveling alone and had a green light on Canal Street and South Claiborne (one block prior to the intersection of Cleveland and S. Claiborne) and that he could see from there that he had a green light at Cleveland Avenue. As Harris entered the intersection, he was struck by a dump truck which had run a red light. Harris further stated that when other Sewerage and Water Board vehicles arrived on the scene they switched the pickup truck with a dump truck that had struck him and removed the dump truck. Furthermore, Harris denied using his cab since the accident and further denied being able to drive his cab at all because of his back injury. On cross, Harris could not explain his earlier testimony taken in deposition, wherein he stated that Aicklen had a green light as Aicklen made his turn.

Anderson Matthews was a bystander who testified to witnessing the accident. When the accident occurred, Matthews was drinking a softdrink by a convenience store on the corner of Claiborne and Cleveland Avenues. Just as the collision occurred, Matthews stated that he looked up at the light and saw it turn green on Cleveland Avenue. At one point, he called the Sewerage and Water Board truck “a little yellow truck” and at another point he called it a heavy truck “something like a dump truck.” Matthews recalled Harris as having a female passenger in the car (which was empty except for Harris). Matthews could not remember the time of the day nor the day of the week the accident occurred.

Betty Marshall’s deposition was introduced into evidence because she could not be located for subpoena purposes. (Plaintiff did attempt to subpoena her.) Marshall was driving an auto directly behind Harris when the accident occurred. She stated that she had followed Harris for a while and that the light on the corner of Cleveland and S. Claiborne had turned from red to green when she was approximately forty feet from the intersection. She further stated seeing the light on Cleveland being red while the light on Claiborne was green.

In defense of Harris’ claim, Michael Aick-len testified that the truck he was driving at the time of the accident was not a dump truck, but a Ford F-100 truck. In addition, two insurance investigators, Faye A. Sanders and Emmet Roynot, testified they had investigated and “tailed” Mr. Harris immediately prior to the trial and they had both seen him driving the same cab, for hire, in April, 1979.

The trial court noted the inconsistencies between the testimony of plaintiff and his witnesses, noted that plaintiff was not truthful regarding his operations of the cab following the accident, concluded that plaintiff had not proven his case by a preponderance of the evidence, and rendered judgment for defendants. The trial court’s finding of fact is not to be disturbed in the absence of manifest error. Canter v. Koehring Co., 283 So.2d 716 (La.1973). Manifest error simply means “clearly wrong”. Arceneaux v. Domingue, 365 So.2d 1330 (La.1979). From the evidence adduced below, it cannot be said that the trial court was “clearly wrong” in ruling that plaintiffs had not proven their case by a preponderance of the evidence. Proof by a preponderance of the evidence simply means that, taking the evidence as a whole, the fact sought to be proven is more probable than not. Marcotte v. Travelers, 258 La. 989, 249 So.2d 105 (1971).

Harris related an incredible story about his cab being struck by a dump truck, then seeing the Sewerage and Water Board haul the truck away and put a smaller truck in its place. In addition, his credibility was further impaired when the investigators reported Harris driving his cab for hire after he had denied being able to drive or work since the accident. Furthermore, he stated that the light was green for one block prior to approaching the intersection, while Ms. Marshall stated it was only green forty feet prior to the intersection. Matthews’ testimony was suspect because of his own contradictory testimony, i. e., first he called the Sewerage and Water Board truck a “little yellow truck”, then later called it “something like a dump truck”. His failure to remember the time of day or the day of the week, and his remembering Harris as having a female passenger, when in fact he was alone, further weakens his credibility.

Given the foregoing, and given the fact that plaintiff’s testimony was contradicted by Aicklen, we agree with the trial court’s finding that plaintiff has not proven by a preponderance of the evidence that defendant was negligent in causing the damages to plaintiff.

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

AFFIRMED.


author: KLIEBERT, Judge. BARRY, Judge,

text:
    Allen J. LANDRY v. BENSON AND GOLD CHEVROLET et al.
    No. 12216.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 5, 1981.

      Edgar N. Quillin, Arabi, for plaintiff-appellant.
    Edward P. Lobman, Burt K. Carnahan, Metairie, for defendant-appellee.
    Before REDMANN, BARRY and KLIE-BERT, JJ.
   KLIEBERT, Judge.

Allen J. Landry, plaintiff-appellant (hereafter Landry), filed a workmen’s compensation claim arising from injuries allegedly received from an auto accident which occurred while enroute to work. The trial judge dismissed the case on a motion for a directed verdict. Plaintiff appealed.

Landry was employed as a used car salesman by defendant-appellee, Benson and Gold Chevrolet, Inc. (hereafter Benson & Gold). In connection with his employment, Benson & Gold, his employer, provided Landry with a demonstrator automobile for his personal and business use. On April 17, 1979, Landry was driving his demonstrator automobile from his home in Caernarvon, St. Bernard Parish, Louisiana, enroute to the Benson & Gold car lot in New Orleans when, as he reached the Town of Violet (which was along the route in St. Bernard Parish), he remembered that he had left some folders containing pending car sales at home. Landry turned around and started back to Caernarvon. On the way to his home, Landry stopped at a stop sign behind a cement truck owned by JACAT Corporation (not a party to this suit). The cement truck rolled backwards, struck the hood of Landry’s automobile, and left the scene of the accident. Plaintiff pursued the truck to its destination at an unspecified job site approximately two miles from the accident site. There he had to wait approximately forty-five minutes in warm weather before he was able to learn the driver’s identity and obtain his driver’s license number.

Landry contends he was in the course and scope of his employment when the accident occurred and that the accident aggravated a pre-existing heart condition, making him now permanently and totally disabled. The trial court concluded Landry was not in the course and scope of his employment at the time of the accident and dismissed Landry’s suit on a motion for a directed verdict.

On appeal, appellant argued that the trial court erred in granting a directed verdict. He grounded his contention in the argument that an employee who is routinely furnished transportation to and from work as part of his employment agreement is within the course and scope of his employment and, hence, is covered by workmen’s compensation if an accident befalls him while going to and from work by means of the furnished transportation.

Landry was employed as a commission salesman. On trial he described his job as being a “twenty-four hour a day” job. He testified his duties were to attend meetings, “hustle” car sales and give out business cards. Under cross-examination, Landry admitted that at most he had only worked eight hours a day at the Benson and Gold car lot immediately prior to the accident.

In connection with his employment as a car'salesman, Landry was furnished a demonstrator automobile by Benson and Gold. The demonstrator had both a dealer’s plate and a Benson & Gold bumper sticker on it. Landry’s use of the demonstrator was governed by a demonstrator agreement which was admitted into evidence. The agreement was signed by both Landry and Benson & Gold’s General Sales Manager. The pertinent parts of the agreement follow:

DEMONSTRATOR AGREEMENT
1. MAINTENANCE: I agree to exercise the highest care and consideration in the operation and maintenance of the unit assigned me. The company will maintain the unit except for wash and oil change which will be my responsibility, following normal schedules for such maintenance.
2. INSURANCE: I agree to accept responsibility for the $200.00 deductible portion of the company’s insurance coverage for any collision loss.
3.USAGE: I agree that the demonstrator is for my use in the conduct of company business and personal use. However, this only includes within a 100 mile radius. Any trips out of the 100 mile radius must be approved by the General Sales Manager.
******
Each individual driving a co-owned vehicle will be furnished with a copy of the invoice pertaining to the unit being driven. You are encourage(d) to sell the unit. The result will mean more rapid turnover of company cars and more efficient operation.

Defendant-appellee contends Landry was outside the course and scope of his employment at the time of the accident, and thus was not within the ambit of the workmen’s compensation statute. The general rule is that employees going to or returning from work are not covered by the workmen’s compensation law. This rule, however, has several exceptions, including that which holds an accident as being com-pensable when it occurs on a trip which is reasonably contemplated by the contract of employment as being one which the employee would make in the interest of his employer’s business or whenever the employer has interested himself in the transportation to and from work as an incident to the employment agreement. Boutte v. Mudd Separators, Inc., 236 So.2d 906 (La.App. 3rd Cir. 1970), writ denied 256 La. 894, 240 So.2d 231 and citations therein; Belvin v. Cali, 325 So.2d 897 (La.App. 4th Cir. 1976) and citations therein. Thus, under the rationale of these cases, the issue is a factual one. Do the facts show the transportation as an incident to the employment?

Even though Landry was allowed to use the demonstrator for personal use (which he admitted doing) the fact remains that the car was a company-owned vehicle, with all of the maintenance (except oil changes and washes) and insurance being furnished by the company. In addition, the fact that the car had a bumper sticker on it which provided constant public exposure for Benson & Gold (which was part of Landry’s job duties) cannot be overlooked. Even more important, however, is the clause in the demonstrator agreement which states the central purpose of furnishing the automobile, which is “You are encourage(d) to sell the unit.” In essence, Landry was under an obligation to attempt to sell the demonstrator while using it. We also note that Landry was returning to his home to pick up folders needed in his work when the accident occurred.

The foregoing facts lead us to the conclusion that Landry was on a trip which was reasonably contemplated by the employment contract as being a trip made in the interest of Benson & Gold’s business. Therefore, we hold Landry was acting in the course and scope of his employment at the time of the April 17, 1979 accident and, hence, within the ambit of the compensation statute.

This leads us to a determination as to whether, on the evidence presented, there was causation between the accident and Landry’s disability.

Dr. Frederick A. Pou, an expert in internal medicine, was Landry’s treating physician for several years prior to the accident. Dr. Pou related Landry’s history of angina pectoris since 1970 with Landry having frequent episodes of severe angina “off and on” during that period. Landry had been hospitalized from March 14, 1970 to March 26,1979 for angina and mild cardial infarction and on the April 2, 1979 visit to Dr. Pou (the last visit prior to the accident) Landry related having occasional mild chest pains. However, Dr. Pou’s records reflected nothing about plaintiff’s April 17, 1979 accident. In fact, the first time plaintiff saw Dr. Pou after the accident was on April 24, 1979. On that date, Landry told Dr. Pou that he was feeling better than he had felt on April 2, 1979 (the last visit before the accident). Dr. Pou’s clinical findings on April 24,1979 were basically the same as prior to the accident. It was Dr. Pou’s opinion that the April 17, 1979 accident did not aggravate Landry’s heart ailment.

Landry saw Dr. Emile Bertucci at the St. Bernard Medical Clinic in Chalmette on November 20, 1979. He did not personally appear and testify; but, his report of November 20, 1979 was introduced into evidence. Although the report mentions the accident as part of Landry’s medical history, it does not attribute the accident as a cause or a contributory factor to Landry’s disability.

In order to recover workmen’s compensation benefits, plaintiff must show (1) an accident, (2) a disability, and (3) a causal connection between the accident and disability, Cormier v. Aetna Insurance Company, 368 So.2d 461 (3rd Cir. 1979).

As in Cormier, supra, the testimony in this case clearly indicates that the accident did not affect Landry’s disability. There is no medical evidence to establish the necessary causal relationship. The only hint of causation was Mr. Landry’s testifying to feeling “anxious” immediately after the accident and taking nitroglycerin pills from the date of the accident until he saw his doctor one week later.

Appellant argues that, under the jurisprudential rule most recently stated in Allor v. Belden Corporation, 393 So.2d 1233 (La.1981), on the issue of causation, a worker is entitled to the benefit of a presumption in cases such as this. Allor states, at 1236

“. . . If an otherwise healthy worker suffers an accident at work and is thereafter disabled, it is presumed that here is a causal connection between the two, so long as the medical evidence establishes a reasonable possibility of such a connection. (citations omitted).”

Allor is inapplicable herein. Landry was not a healthy worker prior to the accident and there is no medical evidence which establishes a “reasonable possibility” of a connection between the accident and the disability. Accordingly, we hold that although Landry came within the ambit of the Workmen’s Compensation Act, he failed to show a causal connection between the accident and the disability.

For the foregoing reasons, the judgment of the trial court is affirmed, costs of appeal to be borne by appellant.

AFFIRMED.

BARRY, J., concurs with written reasons.

BARRY, Judge,

concurs.

I concur in the result because there is insufficient medical evidence to prove that the employee’s pre-existing heart condition was aggravated by the accident.


author: EDWARD J. STOULIG, Judge Pro Tem.

text:
    Jay MARCH v. Jerry JUHL d/b/a Flag Wall Paper Co., Inc.
    No. 11898.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 5, 1981.
    Anthony S. Taormina, Metairie, for plaintiff-appellee.
    Frederick J. Gisevius, Jr., and Jane M. Gisevius, New Orleans, for defendant-appellant.
    Before BOUTALL and CHEHARDY, JJ., and STOULIG, J. Pro Tem.
   EDWARD J. STOULIG, Judge Pro Tem.

Defendant, Flag Wallpaper Company, Inc., has appealed a judgment awarding plaintiff, Jay March, $400.00 representing the approximate balance defendant failed to refund on a contract between the parties that was never performed in its entirety.

In the spring of 1979, Jerry Juhl of the defendant corporation, agreed to furnish and install carpeting and wallpaper for a residence then under construction by plaintiff and his wife. After Juhl measured all areas involved and after plaintiff’s wife consulted with Flag personnel for an approximate one month period to select colors and patterns, defendant company placed orders with various suppliers on or about May 10, 1979. After the materials were ordered for the Marches at a cost to defendant of $5,778.93, Juhl requested and received a $2,000.00 deposit on the contract. It was verbally understood plaintiff would pay for the balance of the merchandise and the total labor charges when the contract was completed.

On June 19, 1979 the Marches’ residence, still under construction, was destroyed by fire. By this time defendant had received most of the carpeting and wallpaper ordered for the plaintiff’s account. The fire prevented installation of wallpaper and carpeting as scheduled and storage of the merchandise became a problem. Defendant’s business operated from a trailer and plaintiff and his wife were occupying a small apartment. The record does not make clear when plaintiff and defendant began to disagree but within one month of the fire the litigants were communicating through attorneys after it became apparent neither plaintiff nor defendant had space to store the large quantities of carpeting.

Through negotiations the parties arranged for plaintiff to accept all the wallpaper and some of the carpeting at defendant’s cost of $1,624.23. Lynn Juhl of Flag returned the rest of the carpeting and was charged a total of $380.17 in restocking fees. Defendant was never compensated for the time spent in measuring the residence, in assisting Mrs. March in her selections, in placing orders or in returning the merchandise, despite the fact that the mutual withdrawal from the agreement was not precipitated by any fault whatsoever of defendant. Not only was defendant not compensated on a quantum meruit basis, but also it lost $4.60 out of pocket in accommodating the plaintiff.

The net result of the judgment of the trial court is that it penalized the wrong party. C.C. art. 1909 provides a sale of specially ordered material becomes the property of the buyer when the order is placed and from that point it is the buyer who assumes any risk attendant thereto even though delivery has not been made. The article states:

“If the obligation be to deliver an object which is particularly specified, it is perfect by the mere consent of the parties. It renders the creditor the owner, and although it be not delivered to him, puts the thing at his risk from the date of the obligation, if the contract is one of those that purport a transfer.”

A sale is complete as soon as the parties agree to the object and the price (C.C. art. 2456), and thereafter the risk shifts to the buyer (C.C. art. 2467).

In this case, once plaintiff placed the order with Flag, he entered into a contract of sale and the respective rights of the litigants are regulated by the codal articles dealing with sales. Stratton-Baldwin Co., Inc. v. Brown, 343 So.2d 292 (La.App. 1st Cir. 1977). There is no question here that plaintiff did in fact place the order for the price recited herein; therefore, that a sale did in fact occur is beyond dispute. Byrne, Rice & Turner, Inc. v. Callais & Callais B. Rent., 292 So.2d 919 (La.App. 1st Cir. 1974). Once the parties agreed to a specific lot of materials at a definite price, the buyer could not cancel the agreement without legal cause. Dairy Specialties, Inc. v. Verebene, 117 So.2d 632 (Orl.La.App.1960). Since plaintiff’s cancellation of the contract was without legal cause, necessitating the restocking of the returned merchandise, defendant cannot be cast in judgment for this expense.

The only issue raised by this litigation was what indebtedness, if any, defendant owed to plaintiff. Defendant sought no affirmative relief.

For the reasons assigned the judgment appealed from is annulled and plaintiff’s demand is refused. Plaintiff is assessed for all costs of this suit.

ANNULLED.

      . Sued in error as Jerry Juhl, d/b/a Flag Wallpaper Company, Inc.

      . The restocking fee was computed on the dealer's cost and not the retail price.


author: EDWARD J. STOULIG, Judge Pro Tern.

text:
    Melvin P. GORBACH v. BUCK KREIHS CO., INC., et al.
    No. 11904.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 5, 1981.

      Birdsall, Alvarez & Rodriguez, Michael I. Rodriguez, New Orleans, for plaintiff-appellant.
    Drury & Lozes, James H. Drury, New Orleans, for defendants-appellees.
    Before BOUTALL and CHEHARDY, JJ., and STOULIG, J. Pro Tern.
   EDWARD J. STOULIG, Judge Pro Tern.

Plaintiff, Melvin Gorbach, has appealed a judgment dismissing his suit for workmen’s compensation benefits he alleges are due by defendant Buck Kreihs Company, Inc. for an industrial accident on September 28, 1974, which totally and permanently disabled him from pertaining his pre-injury job as a machinist.

The trial judge concluded he failed to prove his back disability was either caused or aggravated by an accident while he was employed at Kreihs. In reasons for judgment the trial court noted the Supreme Court holding in Gorbach v. Prager, Inc., 310 So.2d 604 (La.1975), another workmen’s compensation claim by this same plaintiff for an alleged job-connected disability which predated this one. In Prager the court stated there was no doubt that Gor-bach was totally and permanently disabled; however, it was held he failed to prove his chronic back condition resulted from an on-the-job injury.

No stranger to litigation Gorbach has filed multiple claims blaming the same back condition on several car accidents or other job-related traumas with different employers. At the time this accident was allegedly sustained, the law defined total and permanent disability for skilled workmen as the inability to perform a substantial amount of the duties the particular skill required. Lindsey v. Continental Casualty Co., 242 La. 694, 138 So.2d 543 (1962). We need not decide whether plaintiff’s totally disabling condition found by the Prager court could be compensable again if his injury was worsened by the Kreihs accident because plaintiff failed to prove the casual connection between an aggravation of his back condition, if any occurred, and the September injury.

In Gorbach v. Prager, Inc., infra, the court pointed out disability is compensable only if it was caused by a work-related accident. R.S. 23:1031.

In reviewing this record we find no evidence to disturb the trial court’s conclusion. Dr. Ray Haddad, plaintiff’s treating orthopedist who performed a laminectomy in 1970, stated he thought the September, 1974 job accident further aggravated plaintiff’s back condition; however, in giving Dr. Haddad his history on October 1, 1974, plaintiff failed to mention an alleged back injury in April, 1974, when he was working for Superior Industries, Inc. and for which he received treatment from another doctor. The history a patient gives his doctor has little probative value if relevant facts have been omitted, as they were in this case. Dr. Haddad rested his opinion of aggravation on the- fact that he found evidence of pain in the right leg that he had not observed before. However, plaintiff had experienced several traumas between the time he saw Dr. Haddad in 1973 and the next time he saw him in October, 1974.

It is now well settled that a compensation claimant has the burden of proving the causal connection between the alleged accident and the disability. The evidence as a whole must be sufficient to establish that more probable than not an occupational accident caused or aggravated the disability. Johnson v. Travelers Insurance Company, 284 So.2d 888 (La.1973); Jordan v. Travelers Insurance Company, 257 La. 995, 245 So.2d 151 (1971). The trial court’s determination that plaintiff failed to meet this standard of proof required to sustain his right to compensation disability benefits arising out of his employment with defendant is amply supported by the record. Therefore, under the mandate of Canter v. Koehring Company, 283 So.2d 716 (La.1973) this court is bound to affirm the judgment of the trial court.

For these reasons, the judgment appealed from is affirmed at appellant’s cost.


author: STOULIG, Judge.

text:
    Gary TAINTOR v. STANDARD SUPPLY AND HARDWARE CO., INC., and the United States Fidelity and Guaranty Insurance Company.
    No. 12172.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 5, 1981.
    Darleen M. Jacobs, New Orleans, for plaintiff-appellee.
    Donovan & Lawler, James L. Donovan, Metairie, for defendants-appellants.
    Before BOUTALL, CHEHARDY and STOULIG, JJ.
   STOULIG, Judge.

This is a workmen’s compensation claim by Gary Taintor who suffered a ruptured disc of the lumbar spine while he was employed as a warehouseman with Standard Supply and Hardware Company on December 31, 1975.

The defendant employer and its workmen’s compensation insurer, United States Fidelity & Guaranty Company, appeal a judgment awarding plaintiff benefits under the total permanent definition of R.S. 23:1221 (2). Appellant argues the trial court erred in giving maximum benefits rather than classifying the disability as permanent partial in view of the fact that plaintiff was working at a higher wage at the time of the trial than he was earning when he was hurt while employed by defendant.

Plaintiff was employed as a warehouseman when he injured his back while lifting a 50 to 60 pound box of nuts and bolts. Immediately after the incident he received treatment from the company doctor for four to six weeks and thereafter consulted Dr. John Lidner, a general practitioner. Plaintiff returned to work on February 5, 1976 and continued on the job through February 23, 1976. Thereafter he returned to Standard for one more day’s work on April 26, 1976. He was paid regular wages through this time.

Between March and May, 1976 Dr. Lidner administered regularly scheduled ultrasonic treatments and prescribed muscle relaxants and analgesics to relieve the pain. When it became apparent he was not responding to conservative treatment, Dr. Lidner referred plaintiff to Dr. Raeburn Llewellyn, a neurosurgeon, who surgically removed a ruptured intervertebral disc at the L-4 L-5 interspace in September, 1976. Assigning a 7.5% disability to the body as a whole, Dr. Llewellyn stated plaintiff would not be able to jump, climb or lift on a continuous basis. Nor could he work at a job requiring him to continually stand, sit or walk. Applying these limitations to the job of warehouseman, the doctor concluded he was 100% functionally disabled.

Dr. Llewellyn did assess his potential for future employment. We quote:

“Q. Now, were there any other functional disabilities that you gave him?
“A. I felt that with rehabilitation and with training that he had a zero percent functional disability for a job assignment that permitted or required him to alter any sitting or standing or modest riding or driving and modest bending and lifting activities, that is, if he was allowed to do this in an alternate fashion I felt he could stay reasonably comfortable.”

Plaintiff, 42 years old at time of trial, is a high school graduate whose employment experience consists of construction work, Air Force service with some bookkeeping experience and warehouseman work. When this case was tried he was employed as a clerical worker with the federal government with a bi-weekly net wage of $243.00. The job would last no longer than one year and was subject to termination without notice since he had been hired on a temporary basis. The record is silent as to the date this employment began or was to end. Plaintiff testified he works in substantial pain and Dr. Llewellyn’s description of his limitations lends credence to his assertion.

Relying on the Supreme Court opinion in Dusang v. Henry C. Beck Builders, Inc., appellant argues that a workman who is earning more money at the time of trial than he was at the time of injury can, at best, be only permanently partially disabled because the pain was not substantial and because the evidence established steady employment was readily available to him. However, the facts in this case are distinguishable in that plaintiff does work in substantial pain, according to the findings of the trial court which are supported by the evidence, and his limited education and work experience do not suggest the availability of regular employment.

In Dusang the court gave jurisprudential standing to the odd-lot doctrine. First, the Dusang court affirmed that a workman who returns to employment in substantial pain is totally disabled, as was held in Phil lips v. Dresser Engineering Co., 351 So.2d 304 (La.App. 3rd Cir. 1977); Lemoine v. Employers Cas. Co., 378 So.2d 594 (La.App. 3rd Cir. 1979); and similar cases. It further defined the permanent, partially disabled workman as one who could find employment in another line of work and perform his duties without experiencing substantial pain, citing with approval Dufrene v. St. Charles Police Jury, 371 So.2d 378 (La.App. 4th Cir. 1979); and Conlay v. Houston General Ins. Co., 370 So.2d 196 (La.App. 3rd Cir. 1979).

The odd-lot doctrine was conceived to fairly compensate the workman who, for one or more reasons, has lost his ability to compete for steady employment in the labor market as the result of an industrial accident. In Wilson v. Ebasco Service, Inc., 393 So.2d 1248 (La. 1981), the court held that if employment is not available because of the injury and individual factors peculiar to that workman, then compensation benefits for total and permanent disability are due. Even though the workman through economic necessity may attempt to resume employment in pain, the court pointed out, the employer may not wish to hire him, the pain may cause frequent absenteeism, he may be more susceptible to reinjury, and his scope of activities may be restricted.

The record in this case establishes that plaintiff cannot perform the job of warehouseman or any other physical labor due to the limitations described by Dr. Llewellyn. Nor can he perform more sedentary work where he would either sit or stand for extended periods of time. The fact that he was employed at the trial does not establish his ability to find steady employment. He was injured in 1975 and he held one job since that time which could have been abolished without notice. This temporary job does not disqualify him as totally and permanently disabled. In Dusang the court pointed out that the ability to find sporadic temporary employment does not automatically shift a workman from a total to a partial disability category.

In Dusang the court described the burden of proof each litigant carries in a workmen’s compensation case when odd-lot classification is at issue. As to the plaintiff the court requires:

“. .. If the claimant can prove that his physical condition, his mental capacity, his education, training, age, or other factors combine to place him at a substantial disadvantage in the competitive labor market, he has made out a prima facie case for classification in the odd lot category. ...”

Once plaintiff meets his evidentiary requirement the defendant must then . . show that some form of suitable work is regularly and continuously available to the claimant in the area where he resides.”

In Oster v. Wetzel Printing Company, Inc., 390 So.2d 1318 (La. 1980) the Supreme Court held a workman totally and permanently disabled where it was established that the claimant could only hold a variety of temporary jobs but that no stable market existed for the work he could perform.

In this case Taintor has established his disability and the discomfort in which he performs his temporary duties. He cannot junction in his pre-injury employment. Dr. Llewellyn did describe certain activities in which he might engage in the future and feel relatively little discomfort; however, the record is devoid of any evidence to establish what type of job plaintiff would be capable of obtaining with these limited functions, or where employment would be available to a workman with plaintiff’s limitations. Under Dusang it was incumbent on the employer to prove steady employment in this area is available to plaintiff with his limitations in bodily function and educational training. This it failed to do.

For the reasons assigned the judgment appealed from is affirmed. Appellant is to bear all costs of the appeal.

AFFIRMED.

      . Plaintiff was awarded $66.67, or
        h of his weekly wage of $100.00, at the time he was injured so long as his disability should continue.

      . 389 So.2d 367 (La. 1980).

      . Held January 15, 1980.


author: BAILES, Judge.

text:
    Ethel WOOLRIDGE v. Gabe MOULEDOUX, XYZ Insurance Company, Carol Wallace and ABC Insurance Company et al.
    No. 11840.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 5, 1981.
    Bagot & Gniady, John H. Gniady, New Orleans, for plaintiff-appellant.
    Young, McMahon & Levert, George J. Richaud, New Orleans, for defendants-ap-pellees.
    Before SAMUEL, GARRISON and BAILES, JJ.
   BAILES, Judge.

Plaintiff-appellant, Ethel Woolridge, alleges that she was employed in the laundry facility of the Chateau de Notre Dame Nursing Home on August 9, 1978 where, by reason of an accumulation of a liquid substance on the floor, fell, thereby suffering an injury to her body. The named defendants are Gabe Mouledoux and Carol Wallace, both fellow employees of the plaintiff-appellant. Gabe Mouledoux is alleged to be the immediate superintendent and the other defendant, Carol Wallace, allegedly was the director of environmental services and executive housekeeper of the employer.

This action is what is known as an executive officers suit. The following allegations of the appellant’s petition clearly delineates this action as such, namely:

* * * * * .
“The individual Defendants named in Paragraph I, at all times herein mentioned, were either officers, agents or employees of the Chateau de Notre Dame, which had a contractual duty to its employed labor force, including the Plaintiff herein, to provide her with a safe place to work, and was negligent in failing to do so in the following particulars:
“1. By failing to provide the means of safe access to a working area for the performance of the duties of its labor force employees.
“2. By failing to recognize and detect the defective unsafe condition and usage of the equipment and machinery required to be used by Plaintiff.
“3. By failing to report an unsafe equipment usage, and to stop the usage and to provide proper, safe washing equipment initially, and after actual and constructive knowledge of the dangerous condition of the equipment, and in failing to take steps necessary to rectify the hazardous condition of laundry equipment required to be used by the labor force employees.
“4. By performing make-shift repair work upon defective laundry equipment, thereby contributing to its unsafe conditions.
“5. By failing to provide to the labor force employees, required to work in and around the laundry equipment, floors which were of sufficient material to be water tight and free from dampness with adequate drains so that no water or other liquid substances may accumulate upon the surface of the floors by usage of the laundry equipment.
6. By failing to provide safe floor surfaces by means of false floors, platforms or mats or dry standing places in areas where wet processes are used by the members of the labor force employees utilizing the laundry machinery.
“7. By failing to maintain the laundry equipment in such a condition as to prevent the accumulation of water or other liquid substances upon the floor area of the laundry facility.
“8. By any other acts of active or passive negligence to be proved at the trial of this case.”

Defendants, in addition to filing an answer, filed a peremptory exception of no cause of action and of no right of action. On the ground that the exclusive remedy of the plaintiff is under the Louisiana worker’s compensation statute the trial court sustained the exception of no cause of action and dismissed the plaintiff’s suit.

The applicable statute is R.S. 23:1032, as amended, which provides:

“The rights and remedies herein granted to an employee or his dependent on account of an injury, or compensable sickness or disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights and remedies of such employee, his personal representatives, dependents, or relations, against his employer, or any principal or any officer, director, stockholder, partner or employee of such employer or principal, for said injury, or compensable sickness or disease. For purposes of this Section, the word ‘principal’ shall be defined as any person who undertakes to execute any work which is part of his trade, business or occupation in which he was engaged at the time of the injury, or which he had contracted to perform and contracts with any person for the execution thereof. “Nothing in this Chapter shall affect the liability of the employer, or any officer, director, stockholder, partner or employee of such employer or principal to a fine or penalty under any other statute or the liability, civil or criminal, resulting from an intentional act.
“The immunity from civil liability provided by this Section shall not extend to: 1) any officer, director, stockholder, partner or employee of such employer or principal who is not engaged at the time of the injury in the normal course and scope of his employment; and 2) to the liability of any partner in a partnership which has been formed for the purpose of evading any of the provisions of this Section.”

The above quoted section excludes from its exclusiveness of rights and remedies of the injured employee the liability of the employer, or any officer, director, stockholder, partner or employee of the employer resulting from an intentional act.

Noticeably absent from the plaintiff’s petition is any allegation that the plaintiff’s injury was the result of any intentional act of the individual defendants. Under the recent case of Bazley v. Totorich, 397 So.2d 475 (La.1981) the Supreme Court has determined an intentional act as:

“ * * * (W)e construe the legislation under review as providing that the exclusive remedy rule shall be inapplicable to intentional torts or offenses. The meaning of intent in this context is that the defendant either desired to bring about the physical results of his act or believed they were substantially certain to follow from what he did. * * * ”

As shown by the above quoted allegations of plaintiff-appellant’s petition, there is no allegation that the two named defendants intended to bring about the harm which plaintiff-appellant suffers or believed such result was substantially certain to follow from their alleged negligence; therefore, the petition is fatally defective in stating a cause of action.

Another issue presented is whether the suit should be dismissed as the trial court did, or should the plaintiff, under C.C.P. art. 934 be afforded the opportunity to amend to state a cause of action.

C.C.P. art. 934 states:

“When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection cannot be so removed, or if plaintiff fails to comply with the order to amend, the action shall be dismissed.”

In Louisiana and Southern Life Ins. Co. v. New Orleans Steamship Association, International Longshoremen’s Association (AF of L-CIO) Welfare Plan, 384 So.2d 594 (La.App. 4th Cir. 1980), this court said on page 597 in commenting on the above-quoted C.C.P. art. 934:

“As a general rule the ‘shall’ in the above article requires that the adverse party be given an opportunity to amend where there is a conceivable possibility that cause or right of action may be stated. Hodges v. LaSalle Parish Police Jury, 368 So.2d 1117 (La.App. 3rd Cir. 1979). However, the right to amend is not so absolute as to permit the same when such amendment would constitute a vain and useless act.”

This reflects the jurisprudential rule. See also Perkins v. Desroches, 359 So.2d 323 (La.App. 4th Cir. 1978); writ denied 362 So.2d 578. Within the context of the allegations of plaintiff’s petition and R.S. 23:1032, as amended, any intimation of intention on the part of defendants to harm the plaintiff is absent. Such an intention on the part of defendants, as defined by Bazley, is requisite for stating a course of action against them. Neither in brief nor in oral argument has the plaintiff contended that she can allege or prove that defendants intended to do physical harm to her, as defined by the statute and interpreted by Bazley.

Thus, we find that a remand for the purpose of affording the plaintiff an opportunity to allege a fact not contended to exist would be a vain and useless act.

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

AFFIRMED.


author: JULIAN E. BAILES, Judge Pro Tern.

text:
    MISSISSIPPI RIVER FUEL CORPORATION and Callery Properties, Inc. v. STATE MINERAL BOARD et al.
    No. 11942.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 5, 1981.

      William J. Guste, Jr., Atty. Gen., Gary L. Keyser, Asst. Atty. Gen., Baton Rouge, Camp, Carmouche, Palmer, Barsh & Hunter, Edward M. Carmouche and David R. Frohn, Sp. Asst. Attys. Gen., Lake Charles, Doyle, Smith & Doyle, Donald W. Doyle and Donald W. Doyle, Jr., New Orleans, for defendants-appellees.
    Louis J. Carmadelle, Jr. and Gustave Car-madelle, in pro per.
    Before SAMUEL, J., and BAILES and McBRIDE, JJ. Pro Tern.
   JULIAN E. BAILES, Judge Pro Tern.

This litigation arises from a concursus proceeding instituted by Mississippi River Fuel Corporation and Callery Properties, Inc., filed on August 10, 1964 in Plaque-mines Parish. These two plaintiffs, who hold dual leases, one from the State Mineral Board and the other from the Carmadelles, are lessees of forty acres of land title to which emanated from the State of Louisiana. The defendants are the State Mineral Board and Louis Carmadelle, Jr. and Gus-tave Carmadelle.

The purpose of this litigation is to determine who are the legal owners of the royalties payable under the dual leases held by plaintiffs. The plaintiffs have no other interest herein. The real contest is between the State Mineral Board as one claimant and Louis Carmadelle, Jr. and Gustave Car-madelle, jointly, as the other claimants.

The companion case to the instant suit was that of Gulf Oil Corporation v. State Mineral Board, 291 So.2d 807 (La.App. 4th Cir. 1974), writs granted, 294 So.2d 831 (La. 1974), and therein ultimately the Supreme Court, in 317 So.2d 576 (La.1975), amended, and as amended, affirmed the judgment of this court. The issues presented in this instant case are identical to the issues before the court in Gulf Oil Corporation, supra.

The Carmadelles deraign their title from the State of Louisiana through the Board of Commissioners of the Grand Prairie Levee District. These claimants contend that their title to the subject property is vouchsafed against any claim of the State of Louisiana exercised through the State Mineral Board because of the statute of repose, Act 62 of 1912.

This case presents again head-on the issue of alienability or nonalienability of water bottoms by the State of Louisiana. The Carmadelles’ position is that regardless of whether the forty acres described as SW Vi of NE Vi of Section 27, Township 19 South, Range 18 East, Plaquemines Parish are navigable water bottoms, the six-year period of time for attack of their title by the State, in accordance with Act 62 of 1912, has tolled and their title is forever quieted.

In their brief, defendants argue that the question of alienation has never been considered. Their contention is that an alienation constitutes any of several different types of transactions. It includes at least a sale, a lease, a royalty sale and perhaps other similar transactions. If the court is correct in holding that the navigable water bottoms were inalienable under the theory of the public interest in the free use of those things held for the enjoyment of all, then how does one square the sale of royalties or the lease to private individuals the navigable water bottoms? Thus, they state:

“The basic difference between a sale or patent to Mr. Baker in 1911 (of the above-described property herein involved) and the mineral lease by the State to Mr. F. A. Callery in 1962 is extremely difficult to ascertain. Callery claims the right to extract minerals from beneath the bed of the submerged land. Not only does the State of Louisiana purport to give Callery a lease on the property but it also gives him the right to extract therefrom the minerals beneath the surface and to sell, use or consume them upon payment of a royalty to the lessor. It is clear that the State leased to Callery and gave him the right to extract minerals from property which had already been sold to Mr. Baker (defendant-appellants’ ancestory in title) * *

In effect, the Carmadelles argue that under the majority ruling of Gulf Oil Corporation v. State Mineral Board, supra, the State enjoys the best of both worlds. The state sold the property in 1911 for the purpose of generating revenue, then are back now selling the property again for the raising of revenue.

Appellants make the point in their brief that the court in neither California Company v. Price, 225 La. 706, 74 So.2d 1 (La.1954) (which was expressly overruled in Gulf Oil Corporation) nor Gulf Oil Corporation v. State Mineral Board, supra has expressly addressed the question of alienation.

The obvious thrust of this argument is that what was declared inalienable in one instance has been in fact alienated or declared to be alienable in the latter case.

The other side of the Goin presents a different approach. What is inalienable under Gulf Oil Corporation is the right in the public to navigate the waters secured by ownership in the State of the water bottoms and what has been alienated in the form of lease and royalty transaction is the right to search for and capture prizes. Thus is distinguished the proscribed complete transfer of all the whole right in the 1911 patents and conveyances and the mineral leases and royalty sales of the 1960’s.

The argument of the appellants is fashioned to an extent on that of (Chief) Justice Summers’ dissent, in part framed in the concept that there was no basic (constitutional) prohibition against the legislature empowering the executive department and the levee districts to dispose of the classification of property of which the subject property was a part and providing for a statute of repose; thus, after the elapse of six years, counting from 1912, the title was quieted in the appellants. (Chief) Justice Summers’ closing paragraph of the dissent in the Gulf Oil Corporation case, supra, seems apropos:

“Every contention made by the State has been analysed in this dissent and found wanting. The variety of issues presented demonstrates that the State had no confidence in the wisdom of overruling the Price Case and the many decisions applying Act 62 of 1912. In doing so the majority opinion solves nothing. To the contrary, by approving this turnabout the Court invites another Court on another day to return to the sounder and more plausible rule of the Price Case. All of which will cause the owners of property within this State to wonder about the stability of their titles.”

The appellants concede their only hope of recovery must be based and is grounded in a reversal of the last decision of the Supreme Court. We are bound by the jurisprudential terminus of Gulf Oil Corporation v. State Mineral Board, supra. At this time it is controlling of our consideration of the instant case.

For these reasons the judgment appealed is affirmed at appellants’ cost.

AFFIRMED.


author: PEREZ, Judge.

text:
    Clayton G. SAVARESE and Clayton G. Savarese, III v. Sheri BYE, Joseph Bye and Allstate Insurance Company.
    No. 11858.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 5, 1981.

      Robert T. Hughes, New Orleans, for plaintiffs & appellants & appellees, Clayton G. Savarese, Jr. & Clayton G. Savarese III.
    Donovan & Lawler, Christopher E. Lawler, Metairie, for defendants & appellees & appellants, Sheri A. Bye, Joseph Bye & Allstate Insurance Co.
    Law Offices of James J. Morse, Julian G. Baudier, Jr., New Orleans, for defendant-appellee and third party defendant-appel-lee, Patricia G. Benoit.
    Porteous, Toledano, Hainkel & Johnson, James S. Thompson, New Orleans, for defendant-appellee, Albert P. Graiser.
    Dillon & Cambre, Gerard M. Dillon and Georges M. Legrand, New Orleans, for defendants-third party defendants-appellees, the Parish of Jefferson, the Jefferson Parish Weed Control Department, the Jefferson Parish Department of Roads & Bridges, and the Jefferson Parish Division of Public Works.
    Before GULOTTA, SCHOTT and PEREZ, JJ.
   PEREZ, Judge.

This suit arises out of an intersectional collision involving a motorcycle, driven by Clayton G. Savarese, III, and an automobile, operated by Sheri Bye, on June 27, 1978 at the intersection of Joliet and Division Streets in Jefferson Parish.

The intersection in question is a T-intersection at which Joliet Street (forming the leg of the T and running east-west) intersects with Division Street, which runs north-south. Prior to the collision, Bye had come to a complete stop at the Joliet Street stop sign. As Bye attempted a right-turn onto the southbound lane of Division, she collided with Savarese, who was northbound on Division.

Initially plaintiffs brought suit against Sheri Bye, her father, Joseph Bye, and their liability insurer, Allstate Insurance Company. Shortly thereafter, the plaintiffs supplemented and amended their petition to include the owners of the lot adjacent to the intersection and various governmental agencies. In addition, the Byes and Allstate Insurance Company filed a third party demand against the added defendants.

The basis of the supplemental and amended petition and the third party demand was that the accident was caused by or contributed to by an overgrowth of weeds on the vacant lot which obstructed the motorists’ view.

Motions for Summary Judgment on behalf of landowners, Albert Graiser and Patricia Graiser Benoit, and the Jefferson Parish Weed Control Department, Jefferson Parish Department of Roads and Bridges, and the Jefferson Parish Division of Public Works were maintained, dismissing the principal and third party demand.

JEFFERSON PARISH

Appellants contend that, in accordance with Jefferson Parish Ordinances Sections 8-84 et seq., the Parish is charged with the duty of keeping weeds at an appropriately safe level so as not to impede or obstruct the vision of motor vehicle operators. Appellants further contend that Jefferson Parish breached that duty.

We do not agree. The provisions relied upon by appellants relate to health and environment, not to traffic safety. The title of “Section 8” is “Garbage, Trash and Weeds”, and the purpose provides:

“Sec. 8-1. Purpose and Scope:
(a) Purpose: It is the purpose of this chapter and it is hereby declared to be the policy of Jefferson Parish to implement a comprehensive solid waste management system to regulate the storage, collection, transportation, processing and disposal of solid waste in a manner that will:
(1) Protect the public health, safety and welfare;
(2) Prevent land, water or air pollution;
(3) Prevent the spread of disease and the creation of nuisances;
(4) Conserve natural resources;
(5) Enhance the beauty and quality of the environment...”
(Ord. No. 11137, Sec. 1, 4/5/73

The expressly provided purpose of the ordinances upon which appellants rely does not contemplate traffic regulation or vehicular safety, but rather involves community health and environment.

Appellants rely on Evans v. Allstate Insurance Company, et al, 340 So.2d 634 (La. App.2nd Cir.1976), to advance their theory that the ordinances create a duty on the part of Jefferson Parish. However, this precise question has already been decided by this court in Wright v. Travelers Insurance Co., 288 So.2d 374 (La.App.4th Cir. 1974). In determining whether “weed control” ordinances imposed a duty to provide traffic safety, this court held:

“. . . violation of an ordinance or statute is negligence per se only if the violation ends in a result intended to be protected or prevented by the said ordinance or statute. . .
The ordinance relied upon by appellant was clearly designed to protect the city and its people from health hazards not related to traffic safety. This is distinguishable from the ordinance relied on in the case of Deamer v. Travelers Ins. Co. [La.App.], 223 So.2d 224, which said ordinance enacted by the Parish of East Baton Rouge, specifically prohibited the obstruction of vision at intersections with an apparent regard for traffic safety. Accordingly, we do not agree with appellants’ contention that the violation of City Ordinance No. 28-30 constitutes negligence in this action.”
(Wright, supra, at page 376)

Further, the ordinance in Evans prohibited the weeds from being a certain distance from the street. Arguably, the reference to streets may evidence intent to promote traffic safety; however, in the present case, weeds were prohibited within three hundred feet of an existing building. Clearly, the intent of the ordinance is for health, as opposed to traffic safety, and in accordance with Wright, the violation of Jefferson Parish Ordinances 8-84 does not constitute any actionable breach of duty.

The only duty Jefferson Parish has is to maintain its traffic signs and devices so as not to cause traps or undue dangers to motorists. (Pepitone v. State Farm Mutual Auto Insurance Company, 369 So.2d 267 (La.App.4th Cir.1979) In the present case, this duty has been discharged.

LANDOWNERS

As with respect to the landowners, violations of Jefferson Parish Ordinances, Sections 8-84 does not render them liable. The duty owed under the ordinance was not designed to protect the injured party herein. (Wright, supra)

However, irrespective of the Jefferson Parish Ordinances, the landowners must discharge their duty as set forth in Civil Code Article 2317, which provides in part, that:

“We are responsible, not only for the damages occasioned by our own act, but for that which is caused by... The things which we have in our custody.”

This liability arises from a legal relationship to the thing whose conduct or defect creates an unreasonable risk of injury to others. (Loescher v. Parr, 324 So.2d 441 (La.1975). Consequently, the landowners owed a duty not to create a risk to others by obstructing traffic. Thus, the liability of the landowners is established through their ownership of the property adjacent to the intersection.

Whether or not the landowners caused or contributed to the accident is a factual issue which should be decided at trial. Kay v. Carter, 243 La. 1095, 150 So.2d 27 (1963); Cates v. Beauregard Electrical Contr., 328 So.2d 367 (La.1976); and Andrew Development Corp. v. West Esplanade Corporation, 347 So.2d 210 (La.1977)

Accordingly, we find that the landowners owed a duty not to obstruct the vision of passing motorists; and that the landowners have not discharged their burden of proof in establishing there is no genuine issue of fact regarding their liability.

We affirm the trial court’s decision as to Jefferson Parish and reverse and remand to the trial court with respect to the landowners.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

SCHOTT, J., concurs in the result.

      . Included in the supplemental petition were the Parish of Jefferson, Jefferson Parish Division of Public Works, Jefferson Parish Weed Control Department, Jefferson Parish Department of Roads and Bridges, the State of Louisiana, Louis R. Beling, Albert P. Graiser, Patricia Graiser Benoit, Dorothy Graiser Purdy, Eugenia Konstantopoulas Graiser, Edith Ebeling Graiser and Louis G. Ebeling' John Doe, Richard Green and the ABC and XYZ Insurance Companies.

      . Made third party defendants were Albert P. Graiser, Patricia Graiser Benoit, Dorothy Graiser Purdy, Eugenia Konstantopoulas Graiser, Edith Ebeling Graiser, the Parish of Jefferson and State of Louisiana.

      . The State of Louisiana’s Summary Judgment was rendered prior to the judgment involving the named parties and was not appealed.


text:
    Lynn Peter MIGUES v. Nerrisa Ann MIGUES and Lois Marie Butaud, Divorced wife of Lynn Peter Migues.
    No. 11880.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 5, 1981.

      Susan Dunn, New Orleans, for defendants and appellants.
    Philip P. Spencer, New Orleans, for plaintiff and appellee.
    Before GULOTTA, SCHOTT and PEREZ, JJ.
   PEREZ, Judge.

This case involves a disavowal petition filed by Plaintiff-Appellee, Lynn Peter Mi-gues, against the minor, Nerrisa Ann Mi-gues. The facts are undisputed. Mr. Lynn Peter Migues was previously married to Lois Marie Butuad Migues. Of that union, two children were born, namely, Yolande and Chanda. After the separation, Mrs. Migues resided in New Iberia and her husband, Plaintiff-Appellee, lived in New Orleans. The custody of these two children were granted to Mrs. Migues and her husband visited with the children on weekends. He would travel to New Iberia accompanied by either his roommate or his brother, both who testified he did not enter the residence of his ex-wife and his two children would come out to the ear to meet him. Plaintiff-Appellee had no physical contact with his wife since the date of separation. Almost five years after living separate and apart, Mrs. Migues gave birth to Nerrisa Ann Mi-gues and plaintiff-appellee, Lynn Peter Mi-gues, filed this disavowal action. The judge of the Civil District Court ruled in favor of Mr. Migues and found that he was not the father of the minor child. Nerrisa Ann Migues was represented in these proceedings by Ms. Susan Dunn, her duly appointed curator. This appeal was lodged on behalf of the said minor through her curator.

The following dates are pertinent to this matter:

(1) Mr. Lynn Peter Migues and his wife, Lois Butaud Migues became separated on November 7, 1974.
(2) A petition for divorce was filed by Lynn Peter Migues in Civil District Court in proceedings No. 78-17067 on November 21, 1978.
(3) A judgment of divorce was rendered on January 15, 1979.
(4) The child sought to be disavowed, Nerrisa Ann Migues, was born on July 27, 1979.
(5) A letter from Acadiana Legal Service Corporation, dated October 10, 1979, was sent to Lynn Peter Migues, informing him of the birth of the child, Nerrisa Ann Migues.
(6) A suit to disavow paternity was filed by Lynn Peter Migues on October 26, 1979.
(7) A judgment was rendered by the district court in the disavowment proceedings against the mother, Lois Bu-taud Migues, on January 17, 1980.
(8) A judgment was rendered by the district court against the child, Nerrisa Ann Migues, decreeing that Nerrisa Ann Migues is not the child of Lynn Peter Migues on February 28, 1980.

It is interesting to note that after the birth of the child, Mrs. Migues informed her attorney that she did not want Lynn Peter Migues to be named as the father of the child on the birth certificate. Additionally, when the petition for disavowal was filed, Mrs. Migues signed an affidavit waiving personal service and citation and agreed that a judgment might be rendered against her by default. The minor child, Nerrisa, through her curator, states that the trial judge committed reversible error when he allowed Mrs. Migues’s affidavit to be introduced into evidence because it was hearsay. Duly appointed curator and counsel for the minor relies on the case of Boudreaux v. Matt, 370 So.2d 139 which holds:

“It is well settled in Louisiana that a mother’s testimony or admission which would have the effect of making her child illegitimate cannot overcome the presumption provided by LSA Civil Code Art. 184 that the husband of the mother is the father of the children conceived during the marriage, and such testimony and admission must be disregarded. Feazel v. Feazel, 222 La. 113, 62 So.2d 119 (La.1952) Trahan v. Trahan, 142 So.2d 571 (La.App. 3rd Cir. 1962) and Hodges v. Hodges, 348 So.2d 1284 (La.App. 4th Cir. 1977).”

We do not feel that the Boudreaux case is relevant or similar to the case at bar. In the Boudreaux matter, the record does not reflect that any steps toward disavowal had been taken. In addition thereto, since Mrs. Migues was a party to the proceedings, we do not feel that her testimony was inadmissible hearsay, and it was properly allowed into evidence by the district judge.

In 1976 in Act No. 430, the Regular Session of the Legislature addressed itself to legitimacy of children resulting from marriage including disavowal of paternity. This particular act repealed C. C. Articles 191 and 192 and re-enacted C. C. Articles 184 through 190. In the case of Ogea v. Ogea, 378 So.2d 984 (1979), the Third Circuit made the following statement:

“The legislative history of Act 430, although by no means extensive, indicates the legislation was prepared and submitted by the Louisiana Law Institute and was designed to moderate the statutory and jurisprudential rules theretofore existing in the action of disavowal.”

Prior to the enactment of Act No. 430 of 1976, prior Article 184 provided that:

“The law considers the husband of the mother as the father of all children conceived during the marriage.”

The C. C. Article 184 now reads:

“The husband of the mother is presumed to be the father of all children born or conceived during the marriage.”

Concerning the burden of proof in an action for disavowal, C. C. Article 187 now reads:

“The husband can disavow paternity of a child if he proves by a preponderance of the evidence any facts which reasonably indicate that he is not the father.”

In adopting Act 430 of 1976, the legislature changed the law and “moderated” or “liberalized” the requirement for disavowing paternity. We must look to see if Mr. Migues has proven by a preponderance of the evidence any facts which reasonably indicate that he is not the father of the minor, Nerrisa Ann Migues.

Mr. Migues testified that he had no physical contact with his wife since the date of their separation on November 7, 1974. In addition thereto, Mrs. Migues initiated the action to keep Mr. Migues from being named as the father on the child’s birth certificate. Testimony was given by Mr. Migues’s roommate of six years and by his brother that the parties lived separate and apart and they accompanied him from New Orleans to New Iberia to see his two minor children. When Mr. Migues filed his original petition for disavowment, he alleged that the father of the minor was Jose Par-ra, and that fact was never denied by the mother of the child. It is our opinion that Mr. Migues has proven by a preponderance of the evidence that he is not the father of the minor, Nerissa Ann Migues, and therefore, we affirm the judgment of the lower court.

AFFIRMED.


text:
    Nora Rita CASE v. K-MART, INC., et al.
    No. 12197.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 5, 1981.
    Delbert G. Talley, Gretna, for plaintiff-appellee.
    Donovan & Lawler, James L. Donovan, Metairie, for defendants-appellants.
    Before GULOTTA, SCHOTT and PEREZ, JJ.
   PEREZ, Judge.

Nora Rita Case, plaintiff-appellee, was involved in a non-employment related accident on August 19,1977, which resulted in a fractured left elbow and wrist. A surgical procedure was performed on the arm. Thereafter, the plaintiff resumed her occupation as a security guard at the K-Mart store in Algiers. On October 25,1977, while in the course and scope of her employment at K-Mart, a 100 pound box fell on the plaintiff’s left arm, aggravating the previous injury.

Suit was then filed claiming a total permanent, or alternatively, partial permanent disability. The trial court found a partial permanent disability under La.R.S. 23:1221(3) and awarded the plaintiff $77.33 per week for 450 weeks. The defendant, K-Mart Corporation, has appealed from the judgment.

Appellant, K-Mart, contends that the injury does not preclude the plaintiff from seeking other gainful employment, and accordingly, the plaintiff should be awarded only 200 weeks of compensation under Section (4) of La.R.S. 23:1221. K-Mart does not contest the fact that the injury was job-related and that it resulted in a disability, however, K-Mart maintains that the injury should be compensated according to La.R.S. 23:1221(4) as opposed to Section (3) which was awarded by the trial judge.

The basis for appellant’s argument is two-fold: That the plaintiff failed to heed her doctor’s advice and remove her arm from the sling; and that since the injury did not preclude the plaintiff from seeking other gainful employment, Section (4) should apply.

K-Mart contends that the plaintiff must be held responsible for the aggravation to her injury. Testimony revealed that the plaintiff’s neurosurgeon advised her to remove the arm from the sling for therapy purposes. However, due to the pain involved, the plaintiff did not remove the arm from the sling. Subsequently, arthritis developed in the arm, the likelihood of which would have been diminished had the plaintiff mobilized the arm.

Therefore, K-Mart maintains that the plaintiff is only entitled to 200 weeks of compensation under Section (4). Section (4) is only applicable where the disability does not prevent the person from resuming his or her previous occupation. Apparently, K-Mart contends that had not the arthritis set in, she could have continued to work as a security guard.

We find that it is purely speculative as to whether:

(1) The arthritis was caused by plaintiff’s failure to mobilize the arm; and
(2) Whether in the absence of the arthritis, the plaintiff could have returned to work as a security guard.

On the contrary, the expert medical testimony reflected that prior to the development of the arthritis, the plaintiff’s injury was such that it precluded the normal functions incident to work as a security guard.

K-Mart contends that the plaintiff’s injury does not prevent her from seeking other gainful employment, and accordingly, the injury is compensable under La.R.S. 23:1221(4).

Section (4) refers to a scheduled disability due to loss of a member or partial disability of an extremity. This section only applies where the first three sections are inapplicable.

Such are not the facts in the present case. All three of the doctors who treated the plaintiff testified that the plaintiff would be unable to return to work as a security guard.

Dr. Horn, who performed the original operation on the plaintiff, stated that Mrs. Case’s left arm would not be effective if she tried to use it.

After the accident in K-Mart, the plaintiff developed ulnar nerve palsy and carpal tunnel syndrome. She was referred to Dr. Kline, a neurosurgeon, who rated her disability at 70% of the left hand and 30% total body disability. Dr. Kline’s opinion was that Mrs. Case could not go back to her employment at K-Mart which involves lifting heavy objects and scuffling with shoplifters.

Finally, the plaintiff was last treated by Dr. Fleming for the left-arm injury and a degenerative disc condition in her neck. Independent of the disc condition, Dr. Fleming testified that Mrs. Case would still not be able to return to manual labor and the functions incident to her employment as a security guard.

Under La.R.S. 23:1221(3), an injured workman is partially’ disabled if, because of his injury, he cannot return to his former employment, but can perform gainful employment in another position. Kelly v. International Union Operating Engineers, 386 So.2d 1060 (La.App. 3rd Cir. 1980); Kilbourne v. Armstrong, 351 So.2d 802 (La.App. 1st Cir. 1977); LeBlanc v. Commercial Union Assurance Company, 349 So.2d 1283 (La. App. 1st Cir. 1977), writ denied, 351 So.2d 174 (La.1977).

Medical testimony adduced at trial revealed that Mrs. Case could perform some type of sedentary job, if pain were to decrease.

In Conlay v. Houston General Insurance Company, 370 So.2d 196 (La.App. 3rd Cir. 1979), the court held:

“La.R.S. 23:1221 is divided into four subsections. The first three subsections deal with temporary total, permanent total and partial disabilities in general. The fourth subsection, however, provides benefits for loss of particular members of the body, loss of the use of such members, disfigurements of the face or head, impairments of the use of a physical function, and inguinal hernias. We recently discussed subsection (4) in Clarius v. Fogleman Truck Lines, Inc., 367 So.2d 1264 (La.App. 3rd Cir. 1979), wherein we explained that the particular compensation must be categorized into one of the provisions of La.R.S. 23:1221, and that these provisions are mutually exclusive. In other words, if the injured workman can be shown to be disabled under subsections (1), (2) or (3), subsection (4) is inapplicable. Jack v. Fidelity & Casualty Company of New York, 326 So.2d 584 (La.App. 3rd Cir. 1976) writ denied 330 So.2d (295 La. 1976), Allen v. Insurance Company of North America, 216 So.2d 400 (La.App. 4th Cir. 1968).”

We find that in accordance with the expert medical testimony at trial, the plaintiff, Nora Rita Case, sustained an injury to her left arm which precluded her from performing duties incident to her employment as a security guard.

Accordingly, Mrs. Case’s injury meets the criteria outlined in La.R.S. 23:1221(3), and is a partial permanent disability.

AFFIRMED.


author: BOUTALL, Judge.

text:
    Lanny R. ZATZKIS v. Joseph C. FUSELIER and Waguespack Pratt, Inc.
    No. 11474.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 6, 1981.
    Rehearing Denied June 15, 1981.

      Mayer Finkelstein, New Orleans, for Lanny R. Zatzkis, plaintiff-appellee.
    Lanny R. Zatzkis, in pro. per.
    Paul A. Bonin, New Orleans, Levenson & Bonin, Herbert W. Christenberry, Jr., New Orleans, John J. Lee, Jr., Metairie, for Joseph C. Fuselier, defendant-appellant.
    Edward F. Wegmann and Geoffrey H. Longenecker, New Orleans, for Wagues-pack, Pratt, Inc., appellee-cross-appellant.
    Before SAMUEL, REDMANN and BOU-TALL, JJ.
   BOUTALL, Judge.

This appeal arises from a judgment of the trial court awarding liquidated damages and an agent’s commission in connection with a claim for breach of a contract to purchase an immovable property.

On or about May 8, 1978, the plaintiff, Lanny R. Zatzkis, agreed to sell the property located at 1537-39 Dublin St. in New Orleans, La. to one of the defendants Joseph C. Fuselier for the sum of $43,000. Both of these parties made arrangements to pass the act of sale on June 28, 1978 which was the last day within which the contract could be completed. On that date, Fuselier refused to complete the transaction, claiming that the property was not vacant and that the title was unmerchantable. Three months later the plaintiff filed suit against Fuselier for breach of contract seeking liquidated damages, lost rentals and attorney’s fees on the grounds that the latter refused to take title to the property. Also the plaintiff seeks the recovery of the deposit which was placed by Fuselier with the other named defendant, Waguespack, Pratt, Inc., (hereinafter referred to as WP). Fuselier reconvened against the plaintiff for breach of the agreement to purchase seeking specific performance or in the alternative liquidated damages, and attorney’s fees on the grounds that the latter failed to deliver a merchantable title. In connection therewith Fuselier brought a third party demand against Waguespack, Pratt seeking the return of his deposit. WP reconvened against the plaintiff seeking recovery of its commission on the sale and attorney’s fees.

Upon the trial of this matter, the lower court entered judgment in favor of the plaintiff and against Fuselier in the amount of $4300 representing the forfeiture of the deposit as per the terms of the contract, as well as $1,000 in attorney’s fees. The judgment also permitted WP to recover its commission in connection with this sale from Fuselier in the amount of $1,290. It was further ordered that the reconventional demand brought by WP against plaintiff, the reconventional demand brought by Fuselier against the plaintiff and the third party demand brought by Fuselier against WP all be dismissed. From this judgment, Fuselier has appealed suspensively. WP answered the appeal praying that the judgment be amended so as to award WP the recovery of its commissions from the plaintiff, plus attorney’s fees and costs.

On appeal there are two basic issues presented for our consideration. They are: 1.) whether the plaintiff complied with his obligation under the agreement to purchase to furnish Fuselier with a merchantable title; and 2.) whether Waguespack-Pratt, Inc. is entitled to recovery of an agent’s commission plus attorney’s fees and costs.

-I-

As indicated previously, the act of sale between the plaintiff and Fuselier of the property located at 1537-39 Dublin St. in New Orleans was to occur on June 28, 1978. The record reflects that Fuselier appeared on that date and refused to complete the sale because of an alleged unmerchantable title being offered by the plaintiff. Fuselier’s claim as to unmerchantability was based on the fact that there was a previous contract of sale which appeared on the conveyance certificate and further that there were several encroachments of the property onto neighboring property. The various encroachments consist of 1.) A gutter encroachment of six inches; 2.) a roof encroachment of two feet; 3.) a step encroachment of 8/ioth of a foot; and 4.) a fence encroachment of 8/ioth of a foot. Under the terms of the contract the plaintiff as the seller of the property was required to deliver a merchantable title at the act of sale. The agreement states in pertinent part:

“The seller shall deliver to purchaser a merchantable title, and his inability to deliver such title within the time stipulated herein shall render this contract null and void, reserving unto purchaser the right to demand the return of the deposit from the holder thereof * * *.
“Either party hereto who fails, for any reason whatsoever, to comply with the terms of this offer, if accepted, is obligated and agrees to pay * * * all reasonable attorney’s fees and costs incurred by the other party * * * in enforcing their respective rights.”

Consequently, our task is to determine whether the encroachments render the title unmerchantable.

In Young v. Stevens, 209 So.2d 25, 252 La. 69 (1967) the Supreme Court was faced with an almost identical situation. In that case the purchaser of a piece of property in uptown New Orleans refused to complete an act of sale claiming that the title offered by the seller was unmerchantable because of a series of four different encroachments ranging from 6 inches to 1 foot, 3 inches. Subsequently, the purchaser filed suit against the seller for breach of the agreement to purchase, seeking recovery of his deposit plus attorney’s fees and costs. The terms of the agreement were identical to those which are present in the case before us. In deciding the issue of whether the title to the property was merchantable the court considered several rules of law. They are:

“[1-3] Property has a merchantable title when it can be readily sold or mortgaged in the ordinary course of business by reasonable persons familiar with the facts and questions involved. Roberts v. Medlock, 148 So. 474 (La.App.1933). ‘(O)ne should not be made to accept a title tendered as good, valid and binding unless it is entirely legal from every point of view.’ Bodcaw Lumber v. White, 121 La. 715, 46 So. 782, 784 (1908). The promisee in a contract to sell is not called upon to accept a title which may reasonably suggest litigation. Marsh v. Lorimer, 164 La. 175, 113 So. 808 (1927). And while the amount involved may be small, ‘it cannot be said that because of this fact the danger of litigation is not serious. No one can be forced to buy a lawsuit 11 * *.’ * * *. (Citations omitted).

In considering the various rules of law in light of the facts before it, the court concluded that the encroachments were suggestive of litigation and therefore, the title was unmerchantable. The court further indicated that there was no distinction between an encroachment which extends onto the property of another and which extends onto the property being purchased. Accordingly, the court concluded that the purchaser was entitled to recover her deposit, plus interest, attorney’s fees and costs from the seller.

The trial court in the case before us determined that the title was merchantable and further that the plaintiff complied with his obligations under the agreement. In its reasons for judgment the lower court indicated that the title defects were so minor and insignificant that they were of no consequence. We disagree with both the findings made by the trial court as well as its reasoning. In our view we believe that the four different encroachments which exist as to the property in question are not de mini-mus, but in fact are suggestive of future litigation. We can perceive little or no difference between the encroachments that existed in Young v. Stevens, supra, and those present in the matter before us. Accordingly, we find that the title being offered by the plaintiff was unmerchantable. By virtue of the terms of the contract as cited above, Fuselier is entitled to recover his deposit of $4,300 which is in the possession of Waguespack, Pratt, Inc. Furthermore, Fuselier is entitled to recover from plaintiff legal interest on the deposit from the date of judicial demand until paid, attorney’s fees of $1,000 and for all costs of these proceedings.

By virtue of the breach of the contract in the matter before us WP contends that it is entitled to recover an agent’s commission as well as attorney’s fees and costs of the proceedings. Their contention is based on the provisions of the contract which provide in pertinent part:

“The seller shall deliver to purchaser a merchantable title, and his inability to deliver such title within the time stipulated herein shall render this contract null and void, * * * reserving unto agent the right to recover commission.
* * * * * *
“If this offer is accepted, seller agrees to pay the agent’s commission * * * which commission is earned by agent when this agreement is signed by both parties * * *.
“Either party hereto who fails, for any reason whatsoever, to comply with the terms of this offer, if accepted, is obligated and agrees to pay the agent’s commission and all reasonable attorney’s fees and costs incurred by the * * * agent in enforcing their respective rights.”

The trial court concluded that WP was entitled to recovery of its commission amounting to $1,290.00 from Fuselier. This determination was consistent with its earlier finding that Fuselier had breached the agreement to purchase. However, in view of our finding that the plaintiff was the party breaching the contract, coupled with a review of the provisions cited above, we conclude that the trial court was in error in finding Fuselier liable for the agent’s commission. Zatzkis is liable to WP for its commission as well as attorney’s fees, which we fix at $750 and for costs incurred in enforcing its rights.

For the reasons assigned, the judgment appealed from is reversed, and there is now judgment in favor of Joseph C. Fuselier against Lanny R. Zatzkis and Waguespack Pratt, Inc., ordering the return of Fuselier’s $4300 deposit to him, and further against Lanny R. Zatzkis for legal interest on the deposit from date of judicial demand, attorney’s fees of $1000 and for all costs of these proceedings; further, there is judgment in favor of Waguespack Pratt, Inc. against Lanny R. Zatzkis for its commission in the sum of $1290, together with legal interest from date of judicial demand, attorney’s fees of $750 and for all costs.

REVERSED AND RENDERED.