author: PRICE, Judge.

text:
    Sarah Lucas BEARDEN, Plaintiff-Appellant, v. Floyd Wayne BEARDEN, Defendant-Appellee.
    No. 14412.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 13, 1981.

      Richie & Richie by C. Vernon Richie, Shreveport, for plaintiff-appellant.
    S. Patrick Phillips, Bossier City, for defendant-appellee.
    Before PRICE, HALL and FRED W. JONES, Jr., JJ.
   PRICE, Judge.

In this appeal the appellant, Sarah Lucas Bearden, seeks reversal of a judgment ordering a change in the custody of minor children from her to the appellee, Floyd Wayne Bearden.

As an incident to a judgment of absolute divorce, appellant was awarded permanent custody of three of the four children of the marriage between herself and appellee. This judgment of January 17, 1980, awarded custody of the oldest child to appellee. Subsequently on May 15, 1980, appellee filed a rule seeking a change of custody of the three children whose custody was previously awarded to appellant. Service of process was made upon the attorney who had represented appellant in the divorce proceedings. The sheriff’s return shows that this rule served on the attorney on May 19 gave notice of a hearing set for May 29, 1980.

On May 29, at the hearing on the rule, appellant’s attorney of record stated that he had been unable to notify her of the scheduled hearing. Nevertheless, the attorney announced ready for trial and the court proceeded to take evidence. At the close of appellee’s evidence, the trial court concluded that the testimony was sufficient to support a finding that the custody change was in the best interests of the children. The judgment reflecting this determination awarded the permanent care and custody of all four children to appellee. The attorney representing appellant at the change of custody hearing subsequently withdrew as counsel of record on the ground that he had been unable to locate his client.

Upon hearing of the change of custody order, appellant filed a motion for a new trial on June 3 alleging that she had been unaware of the custody proceedings until the day after judgment was rendered. At that time she had received a letter from her attorney dated May 23 advising her of the already transpired custody hearing set for May 29. Appellant’s new trial motion alleged that her attorney had been unaware of her whereabouts and was unable to contact her punctually.

At the hearing on this motion on June 12, 1980, appellant requested a continuance in order that she might secure representation from a new lawyer. This oral motion for a continuance was denied. Appellant then asked the court to give her a new trial because she had not been notified of the child custody hearing. The motion for a new trial was also denied.

In addition to challenging the merits of the custody change order, appellant contends that the minimum requirements of procedural due process were not complied with. We find it unnecessary to address these contentions however since our review of the record convinces us that the trial judge abused his discretion in failing to grant appellant a new trial.

Although service of process was effected by the sheriff serving a copy of the rule on an attorney of record who had not maintained contact with his client for some five months, this practice is sanctioned by the Code of Civil Procedure and the jurisprudence. See La.C.C.P. Art. 1314; Imperial v. Hardy, 302 So.2d 5 (La.1974).

This attorney was unaware of appellant’s whereabouts since it had been some time since the divorce proceedings in which he had represented her. Appellant’s attorney of record stated at the hearing on the rule that he had gone to the house in Bossier City in which appellant had formerly resided in an effort to notify her of the pending hearing. He was informed by neighbors that she had been gone for two or three weeks.

On the other hand, the record clearly establishes that appellee knew where appellant could have been contacted. Appellee’s direct testimony shows that he was aware that appellant had moved from the Bossier City address and was staying with her mother in Bastrop. It is apparent from the record that this information was not communicated to appellant’s attorney of record. If appellee had furnished the information known to him to appellant’s counsel, notice to her could have been reasonably accomplished.

Viewing the record as a whole we are of the opinion that the trial judge abused the discretion accorded him in his decision to refuse appellant a new trial. Even though service of process upon appellant’s attorney of record was within the technical bounds of propriety, the ends of justice are not served by denying her a right to present her evidence when the record shows that she received no actual notice of the custody hearing and could not have so long as the appellee withheld the information needed to enable the appellant’s attorney of record to notify her.

Under La.C.C.P. Art. 2164 this court may render any judgment which is just, legal, and proper, including the power to remand for a new trial in the interest of justice. See Lenard v. Lenard, 386 So.2d 1043 (La.App. 4th Cir. 1980); Hail v. Arkansas-Louisiana Gas Co., 359 So.2d 255 (La. App.2d Cir. 1978), amended 368 So.2d 984 (La.1979).

The trial court’s refusal to grant a new trial in light of the facts disclosed by this record has produced a miscarriage of justice. The case must be remanded for the purpose of allowing defendant to present her defense to plaintiff’s change of custody rule.

For the foregoing reasons the judgment of the trial court of May 29,1980, awarding permanent custody of the minor children to Floyd Wayne Bearden is set aside, and this case is remanded for a hearing on the merits. Temporary custody of the four minor children of the marriage between appellant and appellee is to remain with the appellee. Costs of this appeal are assessed against the appellee. Assessment of all other costs shall await final determination of this case.

      . The attorney upon whom service was made is not the same counsel who represents appellant on this appeal.


source: Caselaw Access Project

author: MARVIN, Judge.

license: Public Domain

text:
    Johnnie Lee GRAHAM, Plaintiff-Appellant, v. JONES BROTHERS CO., INC., & Commercial Union Insurance Companies, Defendants-Appellees.
    No. 14413.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 13, 1981.

      Thompson & Smith by Joe L. Smith and Barry E. Edwards, Shreveport, for plaintiff-appellant.

      Lunn, Irion, Switzer, Johnson & Salley by Jack E. Carlisle, Jr., Shreveport, for defendants-appellees.
    Before MARVIN, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   MARVIN, Judge.

In this worker’s compensation action, the trial court found that although the claimant had sustained an on-the-job accident, he had not sustained the burden of proving that his disability was caused by the accident, particularly because claimant failed to call as witnesses some, but not all, of the medical doctors who had examined him. The claimant appeals. We reverse and remand with directions.

Defendant produced no medical witnesses to contradict the sworn testimony of the two doctors who were called by claimant. These doctors were an orthopedist to whom the employer referred claimant and who first saw claimant following the accident, and a general practitioner who more frequently saw and treated claimant during the several months between the accident and the trial. Four other doctors (neurologists and a urologist) saw claimant one or more times.

Even if claimant’s failure to call the four doctors creates a presumption that their testimony would have been adverse to claimant, the trial court was in error in not finding that this presumption was overcome by the sworn uncontradicted testimony of medical witnesses who testified in person and by deposition. Muse v. Sentry Insurance Company, 269 So.2d 609 (La.App. 3d Cir. 1972); Carroll v. Southern Casualty Insurance Company, 285 So.2d 370 (La.App. 3d Cir. 1973).

This claimant was a service station equipment mechanic who had been employed by defendant employer for some 19 years when the accident occurred on January 26, 1977. Claimant was repairing an air compressor in a customer’s barn when the floor gave way and claimant partly fell through the floor. The heavy air compressor then fell on his chest and arm, rendering him momentarily unconscious. Claimant eventually got out of his predicament, rendered first aid to himself, and, with some difficulty, completed the repair of the compressor and returned to his employer’s shop. The employer does not deny that claimant reported the accident, that the claimant was referred to an orthopedist, Dr. Rambach, that the claimant thereafter complained of numbness in his arm and of some difficulty in performing some job assignments. The employer stated that claimant was a “good employee” in whose integrity the employer had “complete faith”. The employer related plaintiff’s arm weakness to “old age” rather than to the accident.

Dr. Rambach examined claimant on April 8,1977, and found that the triceps muscle in the left arm had been torn from its anchor point on the left elbow and that there was an abnormal bony formation in the area of the tear. According to Dr. Rambach, these conditions could cause the numbness, weakness, and pain about which claimant complained. Dr. Rambach recommended surgical correction of the muscle tear and removal of the bony formation but claimant attempted to continue working and did not follow Dr. Rambach’s recommendation.

Beginning in May 1977 and periodically thereafter until the day before trial, claimant began seeing a general medical practitioner, Dr. Powell. Dr. Powell treated plaintiff for his arm condition on many occasions as well as for apparently more frequent complaints of prostate problems and inability to urinate without pain. Dr. Powell examined claimant the day before trial and found decreased arm strength, atrophy, calcification, and nerve damage in the left arm, all of which he related to the January 1977 accident.

While his condition deteriorated, claimant continued his employment with defendant until December 1977. He earlier began looking for employment or gainful activity less strenuous and less demanding than his mechanic work. He entered into some arrangement, either a partnership or joint venture, with a friend who was a service station owner and who, like claimant, was a part time preacher. In this arrangement claimant eventually became less able to engage in limited and light work, pumping gas, sweeping, servicing motor vehicles. Claimant and other lay witnesses testified about claimant’s demonstrations of increasing pain, atrophy, and weakness in his left arm, and about claimant frequently dropping things.

Claimant underwent prostate surgery in 1976. He testified that it was more painful for him to urinate after the 1977 accident than before. No medical testimony was offered in this respect by plaintiff or by the employer. Claimant did testify that when he fell through the floor in the 1977 accident that he went through the floor only up to his “crotch”. Claimant complained to Dr. Powell about groin pain.

The plaintiff’s testimony, corroborated by lay and medical witnesses, that he suffers substantial pain when he attempts to perform mechanic work after the accident, is not contradicted. He was a skilled employee and the fact that he performed some menial tasks in a limited capacity of a service station attendant does not abate his disability under the law.

A claimant’s disability is presumed to have resulted from an accident if, before the accident, the injured person was in good health, the symptoms of the disabling condition appear after the accident and manifest themselves continuously afterwards, providing there is a reasonable possibility of causal connection between the accident and the disabling condition. The emphasis is ours. The language is the Supreme Court’s. Lindsey v. H. A. Lott, Inc., 387 So.2d 1091 (La.1980); Lucas v. Ins. Co. of North America, 342 So.2d 591 (La.1977); Gradney v. Vancouver Plywood Co., Inc., 299 So.2d 347 (La.1974); Johnson v. Travelers Insurance Co., 284 So.2d 888 (La.1973). See also Dixon v. Ruby’s, Inc., 389 So.2d 73 (La.App. 1st Cir. 1980).

The effect of this presumption, when applied, is to require the employer to show that the disability was caused other than by the accident complained of. Haughton v. Fireman’s Fund American Ins. Companies, 355 So.2d 927 (La.1978); Gradney, supra; Johnson, supra. Here the employer did not produce evidence to overcome the presumption that the claimant’s disability was caused by the accident.

Claimant has shown the required reasonable possibility of causal connection between the accidental injury and substantial pain which is disabling. While some of his pain emanates from his groin and may be attributable to a pre-existing prostrati-tis, the pre-existing condition does not deter our conclusion of total and permanent disability. See Brewster v. City of Shreveport, 115 So.2d 229 (La.App. 2d Cir. 1959). This condition was not disabling before the accident and his muscle tear and calcification, resulting in atrophy, weakness, and pain in the left extremity resulted from, and did not pre-exist, the accident. Plaintiff has shown a reasonable possibility of causal connection between the accident and the disabling condition. Under these circumstances, the defendant employer is liable for worker’s compensation benefits.

This claimant was a skilled service station equipment mechanic until the effect of the accident eventually disabled him. If a skilled employee, after a disabling injury, is able to perform in some gainful but less skilled occupation which exists in a reasonably stable and available labor market, he is not totally and permanently disabled within the meaning of the worker’s compensation law. LRS 23:1221. See Malone-Johnson, “Workmen’s Compensation”, 2d Ed., La. Civil Law Treatise, Vol. 13, §§ 273-280. This claimant did attempt to perform, with limitations, some of the duties of a service station attendant. Because of arm weakness and substantial pain, he is unable to fully perform it in this capacity for his friend and business associate, who testified about claimant’s limited and inept performance. Claimant’s income from this source, approximately $30 per week, is minimal, and his ability to perform has been shown to have steadily decreased. In similar circumstances, some courts have found a claimant totally and permanently disabled under the amended law. See cases cited, Malone-Johnson § 277, fn. 96, pg. 628. See Cousins v. Lummus Co., 364 So.2d 993 (La.1979); Irby v. Edwards Rental & Fishing Tools, Inc., 380 So.2d 711 (La.App. 4th Cir. 1980).

While an operation to remove the calcification from his arm and to reattach the torn muscles to the bone might affect the strengthening of claimant’s arm and lessen his arm weakness and pain, the duration and extent of this plaintiff’s disability, even though perhaps eventually indefinite, at the time of trial is total and permanent. Under such circumstances a judgment for total and permanent disability should be awarded. See Walker v. Gaines P. Wilson & Son, Inc., 340 So.2d 985 (La.1976). See also Schriner v. Riverside Companies, 378 So.2d 1035 (La.App. 2d Cir. 1979).

Accordingly, the judgment of the trial court is reversed and this cause is remanded to allow the trial court to determine and render judgment for the amounts to which the employee is entitled under the worker’s compensation law, at the cost of the employer.

REVERSED AND REMANDED.

      . “For reasons assigned in oral opinion, the Court finds ... that there was a job related injury, however, that the job related injury was not connected with the prostate condition, the related injury was so minor that the plaintiff was able to continue in his regular employment for a period of one year, or almost one year, and at the time he left his employment that he had entered into a business venture whereby he would continue working in the same capacity. The Court finds that the plaintiff has failed to sustain his burden and in particularly, his failure to call as witnesses Dr. Faludi, Dr. Megi-son, Dr. Kerlin and Dr. Gaddis, and the Court finds that the presumption that these doctors would have testified adversely would defeat his cause in this case and there be judgment accordingly.”
      Extract from Court Minutes, page 5

      . “[H]e gave a history of injuring his left elbow two months prior to that time when he fell through a floor working at Gleason’s farm. He indicates that he was actually employed by Jones Brothers Company and he said that he struck the back of his left elbow. When I saw him he was still having difficulty with his elbow. He described weakness of the elbow and pain in the back of his elbow.
      * sfs ¡>fi * sfc
      “Also, he demonstrated weakness of the tricep muscles. There appeared to be a tear or detachment of some, if not all, of the tricep tendons to what we' call the olecranon process, which is the humpy portion of the back part of your elbow. That is where the triceps muscles attaches which is the big fleshy muscle on the back side of your arm which is responsible for bending your arm, bringing your arm out straight.
      “Q. Were there any X-rays taken at the time?
      “A. Yes, sir.
      “Q. What did the results show?
      “A. ... X-rays .. . showed some calcification and ossification which seemed to be some abnormal bony formation about the posterior aspect of the elbow in the region of the triceps muscles attachment. This seemed to have the appearance of a myositis ossificans and there was no bony abnormalities otherwise.
      ******
      “Myositis ossificans is about what I already said is where a bone forms at the site of trauma usually in an area where you normally wouldn’t see bone, like usually it is close to a muscle attachment or in the muscle portion of a motor unit. For example, usually a blunt injury that we see frequently in football players where they get an injury to a muscle sometimes this will go on and heal in an area that abnormal bones form. So, myositis means inflammation of muscles and ossificans means bone formation. So, abnormal bone formation in muscle ... there had been some type of trauma to that area[.]
      ******
      “[H]e probably should have surgery to the elbow in order to help strengthen the elbow by reattaching the triceps muscle and excising the ossified area of the myositis ossificans. * * ”
      Deposition of Dr. Rambach, pp. 52-54.
      Claimant paid his own medical bills and testified that he was not able to bear the expense of surgery.

      . Between May 17, 1977, and January 23, 1978, according to plaintiffs answers to interrogatories, Dr. Powell saw plaintiff five times in his office. After January 23, 1978, and before trial, Dr. Powell saw plaintiff an undetermined number of times.

      . Walker v. Gaines P. Wilson & Son, Inc., supra.


author: GULOTTA, Judge.

text:
    James V. JUSTICE v. Roy G. CABALLERO and May Caballero.
    No. 11250.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 13, 1981.

      Tillery & Potts, Allen J. Tillery, Chal-mette, for plaintiff-appellee.
    Casey, Babin & Casey, Joseph S. Casey, New Orleans, for defendants-appellants.
    Before GULOTTA, SCHOTT and SAR-TAIN, JJ.
   GULOTTA, Judge.

Defendants appeal from a deficiency judgment awarding James Y. Justice the balance owed on a promissory note. Entitlement to recovery is in issue; however, the amount of the judgment is not.

According to the pleadings and sparse evidence in the record, Justice instituted suit via ordinaria for the unpaid balance due on a note executed and signed by May and Roy Caballero on August 3, 1972 and made payable to him in the amount of $28,000.00, together with stipulated interest and attorney’s fees. In their answer, the Caballeros asserted that on June 11, 1964 Roy Caballero and a third party had acquired the food store from Justice for the price of $70,000.00, on terms of $20,000.00 cash and the balance of $50,000.00 payable by a note secured by a chattel mortgage on the inventory, stock, equipment and fixtures of the business. In August, 1972, the third party purchaser transferred his interest in the food store to Roy Caballero when the balance due on the original $50,000.00 note had been reduced to the sum of $28,-000.00. The Caballeros aver in their answer that the $50,000.00 note was cancelled and a new note was signed by Roy Caballero and his wife, representing the balance due on plaintiff’s vendor’s lien. They further allege that the stock of the business was surrendered to Justice and disposed of by him without appraisement.

Justice’s testimony generally supports the Caballeros’ averment of the circumstances surrounding the purchase of the food store. Justice added that in December, 1973, Caballero had advised him that he was unable to carry on the business and would terminate his operation on December 31, 1973. On the December 31st closing date, Caballero gave authority, in writing to Justice to act as his agent to dispose of all of the merchandise and equipment “... as he sees fit.” This written authority was reiterated in a February 10, 1974 letter, which more specifically mentioned the sale of the merchandise and equipment in the food store and directed Justice to use the money to pay any taxes and the balance to be applied on the amount owed.

According to Justice, because the personal note was worth more than the value of the stock, the return of the merchandise did not totally satisfy the debt. Justice testified further that the $28,000.00 note of August, 1972 was for the balance due on the $50,000.00 note. According to Justice, the equipment that was surrendered to him included some of the original equipment sold to Caballero. Both Justice and his wife testified finally that the property had been sold without appraisement.

Although written reasons were not assigned by the trial judge, the award in plaintiff’s favor leads us to conclude the judge found, as a matter of law, that the Deficiency Judgment Act was inapplicable.

It is clear from the averments in the Caballeros’ answer, by which they are judicially bound, that the original note in the sum of $50,000.00 secured by the chattel mortgage was cancelled upon the issuance of the unsecured promissory note in the sum of $28,000.00, dated August 3,1972. It is also clear that Roy Caballero surrendered the property to plaintiff for sale by him as defendants’ agent and authorized him to apply the proceeds from that sale to outstanding taxes owed and the unpaid balance due on the August 3, 1972 note.

We are confronted then with the question whether the Deficiency Judgment Act applies to the balance owed on a promissory note (not secured by a chattel mortgage but on which there was a vendor’s privilege) where property owned by the debtor is sold by the creditor (as the authorized agent of the debtor) and brings an amount from the sale that is insufficient to satisfy the balance owed on the note. We hold that the Deficiency Judgment Act does apply to the promissory note in our case and, accordingly, reverse.

Although many cases arising under the Deficiency Judgment Act have involved chattel mortgages and it has been said that the act is for the benefit and protection of “mortgage debtors”, we do not consider the language in those cases to be exclusive. The Deficiency Judgment Act, LSA-R.S. 13:4106, provides in pertinent part:

“If a mortgagee or other creditor takes advantage of a waiver of appraisement of his property, movable, immovable, or both, by a debtor, and the proceeds of the judicial sale thereof are insufficient to satisfy the debt for which the property was sold, the debt nevertheless shall stand fully satisfied and discharged insofar as it constitutes a personal obligation of the debtor. The mortgagee or other creditor shall not have a right thereafter to proceed against the debtor or any of his other property for such deficiency, except as provided in the next paragraph .... ”

By its own terms the statute refers to “a mortgagee or other creditor” and “the debt- or.” Moreover, LSA-R.S. 13:4107 provides that R.S. 13:4106 shall apply to “mortgages, contracts, debts or other obligations made, or arising on or after August 1,1934.” The statute does not speak of mortgagees and mortgagors to the exclusion of other creditors and debtors. Indeed, in Murdock Acceptance Corp. v. S & H Distrib. Co., Inc., 331 So.2d 870 (La.App. 2nd Cir., 1976), writ denied, 334 So.2d 435 (La.1976), the Deficiency Judgment Act was held applicable to a retail installment sale of machinery without any mention in the opinion of a chattel mortgage agreement or any security device except a continuing guaranty. Furthermore, the legislative history of the Deficiency Judgment Act supports a conclusion that the Act applies to the debt in our case. Prior to the amendment of LSA-R.S. 13:4106 by Acts 1960, No. 32, § 1, the statute spoke of sale without appraisement of the “encumbered property.” The present version of the statute speaks only of the debtor’s “property.” In the transition, the words “encumbered property” were omitted. If the statute were to apply exclusively to mortgaged property, it would appear that the word “encumbered” would not have been eliminated by the amendment. Accordingly, we conclude that the Deficiency Judgment Act does not apply exclusively to the sale without appraisement of property mortgaged by the debtor. Thus, in our case, the cancellation of the original note secured by the chattel mortgage and the issuance of a new note not secured by a chattel mortgage does not, in our opinion, bar application of the Deficiency Judgment Act.

We are not persuaded by Justice’s argument that the “open” note sued on is unrelated to the super market property that was sold in order to pay the Caballeros’ obligations. Under our law, the sale of a movable on credit entitles the vendor to a privilege on the thing sold to the extent of the unpaid purchase price so long as the movable remains in the vendee’s possession. LSA-C.C arts. 3217, 3227. The vendor’s privilege on movables exists against the property sold as a substantive right incident to the contract of sale. W. T. Grant Company v. Mitchell, 263 La. 627, 269 So.2d 186 (1972), affirmed, 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974). This privilege affords a right to obtain a writ of sequestration and seize the property if the purchaser defaults in his payment. W. T. Grant Company v. Mitchell, supra.

In our case, Justice acquired a vendor’s privilege when he sold his food store to Caballero and the third party on credit. So long as the property sold re-mained in possession of the purchaser, the cancellation of the original chattel mortgage note and the execution of a new note by the Caballeros did not serve to extinguish his vendor’s privilege. An ancient line of cases has established that the mere renewal of sale notes and an extension of time do not amount to a novation or destroy the privilege securing the earlier note. Cox v. Rabaud’s Syndic, 4 Mart (O.S.) 11 (1815); Hobson v. Davidson’s Syndic, 8 Mart (O.S.) 422 (1820); Saul v. Nicolet’s Executors, 15 La. 246 (1840); see also Daggett, Louisiana Privileges and Chattel Mortgages, p. 144 (1942). Furthermore, the purchase of the third party’s interest by Caballero at the time the second note was executed has no effect on Justice’s privilege. In Succ. of Beer, 12 La.Ann. 698 (1857) it was held that the sale by two out of three partners of their interest in a partnership to the third partner did not deprive the creditors of the partnership of their privilege on the partnership effects found in the succession of the vendee partner at this death.

Citing Humble Oil and Refining Company v. McCasland, 322 So.2d 857 (La.App. 2nd Cir. 1975), Justice argues that the Deficiency Judgment Act does not apply since there is no relationship between the note and the goods that were sold without ap-praisement. We disagree. In the Humble Oil case, a service station operator owed two debts to an oil company; an open account balance for merchandise and a note for gasoline. The debtor returned the merchandise to the seller to be credited to his open account. Credit in excess of the open account balance was applied to the note. The court held that the Deficiency Judgment Act did not bar recovery of the balance owed on the note since the gasoline purchase was a separate transaction from the open account. Unlike the Humble Oil case, in our case there was only one sale of the grocery business and some of the items involved in that sale, which were subject to Justice’s vendor’s privilege, were later returned to Justice and sold by him without appraisement. There exists a connexity between the original sale and the sale without appraisement in our case.

We find no merit to Justice’s contention that he did not take possession of the property and sell it for himself, but acted at all times as Caballero’s agent. Even assuming the documents written and signed by Caballero that were introduced into evidence are sufficient proof of a genuine agency relationship, we conclude the Deficiency Judgment Act still applies. LSA-R.S. 13:4107 specifically states that LSA-R.S. 31:4106 “declares a public policy and the provisions thereof can not and shall not be waived by a debtor ...” These public policy provisions have been characterized as “stringent” and it has been held that a creditor under the statute is barred from a deficiency judgment where he provokes a sale, judicial or private, without the benefit of appraisement. David Investment Company v. Wright, 89 So.2d 442 (La.App. 1st Cir., 1956); Universal C.I.T. Credit Corporation v. Hulett, 151 So.2d 705 (La.App. 3rd Cir., 1963).

In Southland Investment Co., Inc. v. Lofton, 194 So. 125 (La.App. 2nd Cir., 1940), the debtor voluntarily surrendered his mortgaged automobile to the creditor who sold the property without benefit of appraisement. As in our case, the net proceeds were applied to the balance owed. The Southland Investment Co. court concluded that the employment of such an agreement was calculated to defeat the underlying purposes of the Deficiency Judgment Act. The court further recognized that the broad statement of public policy manifests the “intention of the law makers to place a stamp of disapproval on any practice whereby encumbered property is sold without judicial appraisement .... ” Although the record in our case does not indicate that the agency agreement was anything other than an arm’s length transaction, it is nonetheless in contravention of the strict public policy underlying the Deficiency Judgment Act.

Accordingly, we conclude that the Deficiency Judgment Act is applicable to the balance owed on the $28,000.00 note and that the sale of the movables by the creditor without benefit of appraisement bars plaintiff’s recovery. Consistent herewith, the judgment of the trial court is reversed and set aside and plaintiff’s suit is dismissed at his cost.

REVERSED AND RENDERED.

      . Judgment was rendered in favor of plaintiff against defendants in solido in the amount of $28,000.00 subject to a credit of $9,725.00 together with interest thereon at the rate of 6% per annum, from August 3, 1972 until paid, and for 20% attorney’s fees.

      . Southland Inv. Co. v. Motor Sales Co., 198 La. 1028, 5 So.2d 324 (1941); Gumina v. Dupas, 178 So.2d 291 (La.App. 4th Cir., 1965), writ denied, 248 La. 442, 179 So.2d 430 (1965); Ford Motor Credit Company v. Soileau, 323 So.2d 221 (La.App. 3rd Cir., 1975).


author: SAMUEL, Judge.

text:
    Lester H. THORNE v. SEWERAGE AND WATER BOARD.
    No. 11385.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 13, 1981.
    Gerald P. Aurillo, Metairie, for plaintiff-appellant.
    John A. Gordon, Vincent T. LoCoco, and Gerard M. Victor, New Orleans, for defendant-appellee.
    Before SAMUEL, BARRY, and SAR-TAIN, JJ.
   SAMUEL, Judge.

Plaintiff, a civil service employee, appeals from a ruling of the Civil Service Commission of the City of New Orleans approving his dismissal by the Sewerage and Water Board. The parties jointly stipulated: “Lester H. Thorne, appellant herein, maintains that he is unable to perform his job with the Sewerage and Water Board of New Orleans due to his permanent disability, which permanent disability resulted from a job-related injury received by Lester H. Thorne on February 9, 1976, while he was employed by, and while he was acting within the scope of his employment with, the Sewerage and Water Board of New Orleans; and that the Civil Service Commission in its decision did, in fact, find that Lester H. Thorne was unable to perform his job due to his disability; and ... the sole question of law presented by this appeal is: Under the laws and rules pertaining to the Civil Service Commission, does the appointing authority, in this case, the Sewerage and Water Board of New Orleans, have a legal right to terminate Lester H. Thorne’s employment under the circumstances presented by the above stated facts?”

Appellant contends the Sewerage and Water Board cannot dismiss a civil service employee who is unable to perform the duties of his job, if such disability is caused or aggravated by a job connected accident. He relies on the case of Brouillette v. Sewerage & Water Bd., La.App., 367 So.2d 9, which involved a civil service employee of the Board who was demoted because he was unable to perform his duties. Brouillette does not support appellant’s contention. The holding in that case is only that a civil service employee who is unable to safely perform his job for medical reasons not caused or aggravated by a job-connected accident may be demoted by the appointing authority. The question of whether such action could be taken if the disability was caused or aggravated by a job-connected accident was not before the Brouillette court.

We find Rule IX, Section 1.1 of the Civil Service Commission is controlling. It reads as follows:

“1.1 When any regular employee in the classified service is unable or unwilling to perform the duties of his position in a satisfactory manner or has committed any act to the prejudice of the service, or has omitted to perform any act that it was his duty to perform, or otherwise has become subject to corrective action, the appointing authority shall take action warranted by the circumstances to maintain the standards of effective service. The action may extend to (1) removal from the service, (2) retirement, (3) reduction in pay to the next lower rate in the range for the class, (4) demotion to any position of a lower class that the employee is deemed by the appointing authority and the Director to be competent to fill, (5) suspension without pay not exceeding in the aggregate one hundred twenty (120) days in any period of twelve (12) consecutive calendar months, (6) fine.” (Emphasis ours).

The Sewerage and Water Board of New Orleans is responsible for the maintenance and upkeep of the public water, sewerage and drainage systems of the City of New Orleans. That responsibility cannot be met without the services of personnel who are able to perform their job functions. Here, plaintiff admits he is totally unable to perform the work required by his job with the defendant. In our view his exclusive rights as against the defendant on account of his job-related injuries are under the Louisiana Workmen’s Compensation Act, particularly LSA-R.S. 23:1032, 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, ...” LSA-R.S. 23:1032.

For the reasons assigned, the ruling appealed from is affirmed.

Affirmed.

      . Plaintiff was involved in an automobile accident while on Sewerage and Water Board business and was paid compensation benefits until shortly before his discharge. He filed a tort suit against the other driver, that driver’s employer and its insurer, in which the Sewerage and Water Board intervened. Judgment was rendered against the defendants, and plaintiff and the Sewerage and Water Board compromised and settled plaintiffs workmen’s compensation claim against the Sewerage and Water Board.

      . The parties waived production and filing of the Civil Service transcript, relying exclusively on the stipulation.


text:
    Dr. Frank I. MANGUM, Jr. v. Thomas WEIGEL et al.
    No. 11433.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 13, 1981.
    Rehearing Denied Feb. 20, 1981.

      Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Claude D. Vasser, Me-tairie, for plaintiff-appellant.
    Lobman & Carnahan, Burt K. Carnahan, Metairie, for defendants-appellees.
    Before SAMUEL, BARRY and SAR-TAIN, JJ.
   SAMUEL, Judge.

This is an appeal from a summary judgment dismissing plaintiff’s suit against his own insurer under the uninsured motorist and/or medical payment provisions of his automobile policy.

The facts are not in dispute. Plaintiff was in a very minor collision involving his van and another vehicle in the French Quarter of New Orleans during a St. Patrick’s Day parade. The other driver, shouting obscenities at plaintiff, got out of his own vehicle, came to plaintiff’s van, and repeatedly punched plaintiff in the face through the open window. He then opened the door and attempted to pull plaintiff out of the van, while continuing to punch and strike plaintiff in the face, causing severe injuries. The other driver was either uninsured or under insured. He and plaintiff’s insurer are defendants in this suit for personal injuries.

The issue presented is whether plaintiff is entitled to recover from his own insurer under either or both provisions, medical payment and uninsured motorist, of his policy with the defendant insurer.

That portion of the uninsured motorist provision pertinent here is:

“COVERAGE U — Uninsured Motorists (damages for Bodily Injury). To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury, ... caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile, ...” (Emphasis ours).

The pertinent provision of the medical payment portion of the policy reads as follows:

“COVERAGE C — Medical Payments. To pay all reasonable expenses incurred within one year from the date of accident for necessary medical, ... services, ... Division 1. To or for the named insured ... who sustains bodily injury, ... caused by accident, ...” (Emphasis ours).

Thus, under the medical payment provision the bodily injury must be “caused by accident”, and under the uninsured motorist provision such injury must be “caused by accident” and must arise “out of the ownership, maintenance or use” of the uninsured vehicle.

Relative to “use of the uninsured vehicle,” the most often cited Louisiana case is Speziale v. Kohnke, La.App., 194 So.2d 485. In Speziale plaintiffs injury was caused by throwing fireworks from one automobile into another motor vehicle. The court held that throwing fireworks did not constitute a “use” of the vehicle.

In Speziale, the court said at page 486:
“... it is obvious that this case does not involve an ‘arising out of the use of an automobile’ as reasonably contemplated by that cause. That the circumstances here are not within the clause is accentuated by the fact that the act of throwing a firecracker was a voluntary, deliberate act on the part of the automobile passenger. This factor, along with the entire set of circumstances, removes the connexity of the incident with the use of an automobile to the realm of insignificance.”

In Baudin v. Traders & General Insurance Company, La.App., 201 So.2d 379, at pages 384 and 385, the court listed these six tests which have been used to determine whether or not an injury arose out of the “use” of an automobile:

“It is not our purpose here to establish a required list of tests of causation for holding that the accident is one ‘arising out of’ the use of the automobile. Each case must be decided under its own particular facts. However, we note that the following tests have been used in the cited cases: (1) The dangerous situation causing injury must have its source in the use of the automobile; (2) The chain of events resulting in the accident must originate in the use of the automobile and be unbroken by the intervention of any event which has no direct or substantial relation to the use of the vehicle; (3) The accident must be a natural and reasonable incident or consequence of the use of the vehicle for the purposes contemplated by the policy, although not necessarily foreseen or expected; (4) The accident must be one which can be ‘immediately identified’ with the use of the automobile as contemplated by the parties to the policy; (5) The accident must be of a type reasonably associated with the use of the automobile as contemplated by the contracting parties; (6) The accident must be one which would not have happened ‘but for’ the use of the automobile.”

None of these tests are satisfied in the instant case.

Relative to “caused by accident”, plaintiff relies on the case of Redden v. Doe, La. App., 357 So.2d 632. In Redden the plaintiff vehicle was forced off the highway and into a bayou by two cars driven by a group of ‘would-be robbers’. Plaintiff was injured when she was pulled through a car window by one of her assailants. The court held those injuries were accidental. Drawing a distinction between injuries caused by the “accident”, i. e., injuries sustained by plaintiff while emerging from the window, and those which might have been caused by a battery committed by one of the robbers, the court held plaintiff’s injuries were within the terms of her uninsured motorist coverage. Thus, Redden is distinguishable.

We are of the opinion that plaintiff’s injuries were the result of a battery, an intentional tort, committed by the defendant driver, and thus not caused by accident within the terms of the policy. Nor was there an accident which arose out of the use of the defendant vehicle, which defendant left in order to commit the battery.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.

      . The judgment is based solely upon plaintiffs petition and defendant’s insurance policy.

      . See also Miller v. Keating, La.App., 339 So.2d 40, modified in other respects, La., 349 So.2d 265, where plaintiff contended a battery committed by defendant constituted “use” of a ve-hide; Ramsey v. Continental Insurance Company, La.App., 286 So.2d 371 (plaintiff injured by gun discharged in vehicle).


author: SCHOTT, Judge.

text:
    WAGNER & TRUAX CO., INC. v. Robert HARVEY.
    No. 11436.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 13, 1981.
    Rehearing Denied Feb. 20, 1981.
    W. Monroe Stephenson, New Orleans, for plaintiff-appellant.
    John P. Campbell, III, Professional Law Corp., Metairie, for defendant-appellee.

      Before GULOTTA and SCHOTT, JJ. and C. LINTON SARTAIN, Assigned Judge.
   SCHOTT, Judge.

This is a suit by plaintiff Wagner & Truax Co., Inc. for real estate commissions of $5,352 and $3,000 on sales of property owned by defendant, Robert Harvey. Both parties have appealed from a judgment awarding plaintiff only its commission of $3,000 on the property located on Royal Street in New Orleans. The principal issues are whether the terms of a listing agreement made defendant liable for a commission of $5,352 on the property located on Simone Gardens in Jefferson Parish, and whether defendant’s signing the note as president of a corporation at the act of sale of the Royal Street property extinguished his personal obligation for the $3,000 balance of the commission.

On November 19, 1976, defendant executed and plaintiff accepted an agreement with respect to the Simone Gardens property, which provided:

“I/We employ you or your successors, exclusively, and, hereby give and grant you the sole and exclusive right, to sell same for.$89,000.00 . After 90 days owner may cancel this contract at his discretion.I/We agree to pay you or your successors, a commission of six (6) percent on the gross amount of any deal (agreement to sell or exchange) that may be negotiated during the existence of this agreement, or on the gross amount of any such agreement made within ninety days after the expiration or termination of this contract, with anyone to whom said property has been quoted, during the term of this contract, except where the property is listed exclusively with another Realtor.”

The agreement provided for an expiration date on May 19, 1977. During the term of this agreement plaintiff obtained from one Thomas Griner an offer to purchase defendant’s property for $89,000 which included the assumption of a mortgage defendant had given. This offer was rejected by defendant. On July 22, 1977, defendant was contacted by a saleslady from Doris Hebert Realtor, who advised him that she had a buyer for his property and asked him to sign both an agreement to sell his property to the same Griner for $89,200 as well as a listing agreement containing the same terms as those quoted above except that the price was for $89,200 and the new listing agreement contained the statement “This is a one client listing.” Defendant signed both agreements and the sale to Griner took place on August 8,1977.

In rejecting plaintiff’s claim for a commission on the sale the trial judge reasoned that defendant’s listing the property with the second agency on July 22 had the effect of cancelling the agreement with plaintiff and that the assumption offer obtained by plaintiff was inconsistent with the original listing agreement so that defendant was not obliged to accept it. In this court, plaintiff raises a number of issues for our consideration.

First, plaintiff contends that defendant’s listing with Doris Hebert could not constitute a cancellation of the agreement made with plaintiff. We agree. The language of plaintiff’s listing agreement authorizing defendant to cancel the contract after 90 days was no longer effective after the contract expired under its own terms. Once the contract expired on May 17, 1977, plaintiff had a vested interest in any sale made within 90 days after that termination date to a prospective purchaser produced by plaintiff during the term of the contract. However, we reach the same conclusion as did the trial judge that plaintiff is not entitled to its commission for another reason.

Under the terms of the listing agreement with plaintiff it waived its right to a commission on the sale of the property to a prospect it had produced “where the property is listed exclusively with another Realtor.” At the trial plaintiff attempted to prove by testimony of another real estate broker that Doris Hebert’s listing agreement was not the kind of exclusive listing spoken of in plaintiff’s contract because it was a one-client listing obtained simultaneously with an agreement to purchase and sell. We are not persuaded by the testimony of this other real estate broker for the primary reason that his opinions were essentially legal opinions and conclusions which are within the province of the court to reach. This is a question of interpreting a document, which is the law between the parties, and deciding its effect under the facts and circumstances of this case.

In its brief to this court plaintiff relies on Arender v. Williams, 364 So.2d 1048 (La. App. 2nd Cir. 1978) and McKinney Realty Company v. Kabel, 131 So.2d 567 (La.App. 4th Cir. 1961), but these are inapposite. They distinguished between exclusive agency agreements and exclusive right to sell agreements, and held that a realtor is entitled to a commission on a sale made by the owner only if the agreement constituted an exclusive right to sell agreement. In the instant case, we are concerned only with the question of whether the agreement with Doris Hebert constituted an exclusive listing agreement such as to cancel defendant’s obligation to plaintiff under the first agreement.

We conclude under the plain wording of the second agreement that it was an exclusive listing as contemplated in the first agreement. The only difference of substance between the second agreement and the first was the condition that the second was a one-client listing. But this did not deprive it of its exclusivity. It conferred a commission on Doris Hebert to the exclusion of any other real estate agency and committed defendant to the payment of a commission to Doris Hebert. Defendant could not avoid payment of this commission to Doris Hebert on the Griner sale either by selling the property to Griner himself without notice to Doris Hebert or by selling the property to Griner through another realtor. We are unaware of any legal authority for plaintiff’s proposition that the Doris Hebert listing was not an exclusive listing under the terms of plaintiff’s listing agreement and have concluded that it was such a listing agreement so as to terminate defendant’s agreement with plaintiff.

Plaintiff also raises a procedural issue arising out of defendant’s answer which included the following allegations:

“VI.
Denied, defendant affirmatively pleads that pursuant to the contract in question defendant’s payment to his second agent who in fact, sold said property acts as a full and complete set off of any claims which may have existed in favor of petitioner.”
* * * * * #
“XV.
Denied, defendant affirmatively pleads that pursuant to the contract in question defendant’s payment to his second agent who in fact, sold said property acts as a full and complete set off of any claims which may have existed in favor of petitioner.”

Plaintiff contends that defendant’s use of the term “set off” had the legal effect of admitting his liability to plaintiff on the main demand. While it is true that set off or compensation takes place only when the parties are indebted to each other, C.C. Art. 2207 et seq., and is normally pleaded by way of a reconventional demand. C.C.P. Art. 1062, defendant’s answer taken as a whole clearly denies any liability to plaintiff and prays unequivocally for a dismissal of its suit. Under these circumstances we consider defendant’s use of the term “set off” as inartful but not fatal to his defense.

Plaintiff argues further that defendant did not plead that the “listing” with Doris Hebert constituted an exclusive listing agreement and consequently his defense was not properly before the court. This and other deficiencies in defendant’s answer did not prevent a trial of the issues. Not only did defendant put on his evidence relative to the listing agreement he gave to Doris Hebert but plaintiff attempted to rebut that evidence with the testimony of its expert witness and other witnesses it called. Under C.C.P. Art. 1154, the pleadings could have been amended but failure to do so did not affect the result of the trial of these issues.

Turning next to defendant’s appeal from plaintiff’s judgment for $3,000 on the Royal Street property, the evidence shows that plaintiff sold the property and earned a commission of $19,680. At the act of sale defendant took a third mortgage for a portion of the purchase price and there was a shortage of $3,000 in cash for the payment of this commission. Anticipating this problem, plaintiff had agreed to take a note for $3,000 from defendant and that note was prepared by plaintiff and given to defendant to sign at the act of sale. Defendant signed the note “Robert Harvey, Pres., Pontchartrain Assets, Inc.” However, neither of two of plaintiff’s representatives present at the act of sale was aware of this corporate signature and had never discussed with defendant any proposal to accept a corporate note. In this court defendant argues that a notation occurred but there was clearly no meeting of the minds between these parties as required for a contract of novation, C.C. Art. 2185, et seq. The obligation sued on was the agreement to purchase and sell. Defendant owed a balance of $3,000 under that obligation and nothing occurred to prevent plaintiff from enforcing it.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.


text:
    Willie MILES and Janice M. Miles v. NEW ORLEANS PUBLIC SERVICE, INC.
    No. 11465.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 13, 1981.

      Joseph W. Thomas, New Orleans, for plaintiffs-appellees.
    James Maher, III, New Orleans, for defendant-appellant.
    Before GULOTTA, SCHOTT and SAR-TAIN, JJ.
   GULOTTA, Judge.

Defendant appeals from a $909.52 automobile property damage award. This amount represents $499.79 in automatic transmission repairs and $410.43 in body repairs to the vehicle. The appeal is solely on quantum.

While plaintiff’s automobile was parked and unoccupied, with the automatic transmission gear in park, a Public Service bus executing a turn locked bumpers and dragged the automobile about eight feet backward. Defendant claims the trial judge erred in admitting into evidence the body repair estimates from John Gimma Pontiac since the body shop manager who made and signed the estimate soon after the accident was not called to testify. According to defendant, identification of the document by a different body shop manager employed at Gimma’s at the time of trial, who did testify, did not cure the defect of inadmissibility.

Concerning the cost of transmission repair, defendant complains the trial judge erred in accepting as an expert the mechanic who repaired the transmission and identified the repair receipt. Defendant argues that this witness had received no formal training in transmission repairs but only on-the-job training and was not qualified to testify as an expert on causes of transmission damage, which is more properly the expertise of an engineer and not a mechanic. Defendant further points out that this witness testified that damage normally results to an automatic transmission when the gear is in park and the automobile is dragged forward. Because the evidence showed the automobile was actually dragged backward, defendant argues no weight should have been given to this witness’ testimony relating to causation between the accident and the transmission problem.

Alternatively, defendant contends that because the automobile had traveled a distance of approximately 47,000 miles at the time of the accident, and the transmission was nearly 50% depreciated, an award should have been made in the sum of $250.00 rather than the $500.00 figure.

Although we find no merit to the arguments relating to the transmission repair, we conclude that the body repair estimate was inadmissible hearsay and we reduce the judgment accordingly.

The accident occurred on May 7, 1978. On June 1,1978 a written estimate of body repair cost was made by John Gimma, Inc. through its body shop manager at Gimma Pontiac, Walter Marland. This estimate prepared for Janice M. Miles itemized the cost of repairing damage to the rear bumper, rear parking light, quarter panel, side molding, right rear door, and door edge molding. Although Marland did not testify at trial or identify the document, the body shop manager at Gimma Pontiac at the time of the trial did. He stated that he was familiar with the document, that Walter Marland had been the service manager at the time the estimate was made, and that this form was used and made in the regular course of Gimma’s business.

When the document was offered into evidence in connection with the testimony of the body shop manager, the trial judge sustained the objection to its .admissibility. The document was then offered as a proffer. After the document was identified by Janice Miles, who had received the estimate from Marland, and by Willie Miles, who stated that the estimate was obtained by his wife at his request, the trial judge admitted it into evidence.

On its face, a written estimate of property damage prepared by a third party is hearsay and a plaintiff is not permitted to testify concerning it where no repairs are made. Green v. Clark, 306 So.2d 396 (La. App. 4th Cir. 1975). Such an estimate has been excluded where the plaintiff fails to call as a witness the person who made it or to explain why he was not available to testify. Ordonez v. Maryland Casualty Company, 312 So.2d 875 (La.App. 4th Cir. 1975).

Although conceding in his supplemental memorandum that an unauthenticated repair estimate is hearsay, plaintiff argues that the estimate is admissible under the “business records” exception to the hearsay rule. According to plaintiff, since John Gimma, Inc.’s agent identified the document as one of its estimates that had been prepared by a former employee, the document is trustworthy and should be admitted. We disagree.

Under the business records exception to the hearsay rule, which is recognized in Louisiana jurisprudence, a record prepared in the regular course of business is admissible, even though the person who prepared it does not testify, where such person is unavailable for testimony, where the first collected record available to or usable by the court is introduced, where such record is identified at trial by a person familiar with the procedure of its preparation, and where the evidence seems reliable. Indicia of reliability are that the record was prepared at or near the time of the occurrence recorded, that there was a business or professional duty to record the facts in the regular course of business, that the record appeared complete and honest, and that no fraud is present. Herlitz Const. Co. v. Clegg Concrete, Inc., 378 So.2d 1002 (La.App. 1st Cir. 1979). See also, Comment: Business Records in Louisiana as an Exception to the Hearsay Rule, 21 La.L.Rev. 449, 459-460.

In our case, plaintiff has simply failed to show that Walter Marland, the body shop manager who prepared the estimate shortly after the accident, could not testify at trial. Marland’s unavailability as a witness is a sine qua non for a business records exception. Although a different body shop manager identified the repair estimate and testified that Marland was no longer employed by John Gimma, Inc. no other testimony was introduced to show Marland could not testify. We cannot say that the termination of his employment by itself makes him unavailable.

Our case is clearly different from Cascio v. Standard Oil Co. of New Jersey, 32 So.2d 66 (La.App.1947) in which a medical report by a company physician was held admissible, even though the physician himself did not testify, where he had died before trial and his signature was identified by another company doctor. We likewise distinguish Royal Products, Inc. v. Johnson, 191 So. 329 (La.App.1939), where books were held admissible without testimony of the preparing bookkeeper who was insane at the time of trial.

Accordingly, based on this failure of proof, we conclude that the business records exception does not apply in our case and that the trial judge erred in admitting the repair estimate into evidence.

On the other hand, we find no error on the part of the trial judge in accepting the expert testimony of John L. Lesky, the mechanic who repaired the transmission. No objection was made at the time that the court accepted this witness as an expert. Furthermore, Lesky testified that he had repaired the transmission and identified the transmission parts that were removed from the Miles automobile. He stated that he had worked on automobiles for approximately sixteen years and has worked with automobile transmissions for the past four or five years.

Although Lesky had never taken any courses on repairing Pontiac transmissions, he had repaired approximately 100 to 200 transmissions. He was the owner of Approved Transmission Service where the repairs were made and had acquired his expertise through work on-the-job. He testified also that he had supervised other people working on automobiles and worked as his own boss doing automobile repair work for about a year. Under these circumstances, we cannot say the trial judge abused her discretion in accepting Lesky as an expert. See Catalanotto v. Hebert, 347 So.2d 301 (La.App. 4th Cir. 1977).

According to Lesky, when an automobile is hit and dragged eight feet from a parked position with the gear shift in park, the transmission would “break completely.” He stated that dragging of an automobile under those circumstances causes a crack in the rear gear piston resulting in transmission damage. Lesky had never seen a transmission ring break in any other way than by dragging it while the gear was in park. Since the expert testified that transmission damage would result when the automobile is dragged forward and other testimony established only that the automobile was dragged backward, defendant argues that plaintiff failed to establish causation between the dragging of the automobile and the transmission damage. We disagree.

In truth and in fact, Lesky testified only that transmission damage would result when an automobile is dragged eight feet from a parked position with the automatic transmission gear in park. He did not differentiate whether such dragging was forward or backward. His testimony was only that dragging an automobile a distance of eight feet with the transmission in park would result in complete breaking of the transmission and that he felt that is what happened to plaintiff’s car. Later in his testimony he indicated that forward movement of the automobile over a distance of six inches might produce the same result. We might point out that no evidence was submitted by defendant to contradict the expert mechanic’s testimony. Under these circumstances we find no error on the part of the trial judge in concluding that causation between the accident and resulting transmission damage was established.

Finally, we reject defendant’s contention that because the mechanic testified that the life of a transmission may be in excess of 100,000 miles, and the automobile had traveled approximately 47,000 miles, the $500.00 cost of repairs should be reduced to $250.00 thereby, reflecting an approximately 50% depreciation of the transmission. This argument is based upon complete conjecture and is without merit.

Because we find the body repair estimate is inadmissible, there is a failure of proof concerning that aspect of the damages to the vehicle. Accordingly, we deduct from the total award that portion representing the cost of body repairs, but affirm that portion of the award representing the cost of transmission repairs.

We therefore reduce the total judgment of $909.52 to the sum of $499.79. In all other respects, however, the judgment is affirmed.

AMENDED AND AFFIRMED.

      . According to our calculations the total is $910.22 and not $909.42 as awarded.


text:
    JEFFERSON BUSINESS SERVICE, INC. v. OLIVETTI CORPORATION OF AMERICA, C.I.T. Financial Services Corporation and Robert J. Vallon.
    No. 11475.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 13, 1981.

      Joseph T. Casey, Casey, Babin & Casey, New Orleans, for defendant-appellant C.I.T.
    Gordon S. Patton, Gretna, for plaintiff-appellee.
    Patrick M. Reily, New Orleans, for defendant-appellee Olivetti.
    Before GULOTTA and SCHOTT, JJ., and C. LENTON SARTAIN, Assigned Judge.
   SCHOTT, Judge.

This appeal is by C.I.T. Financial Services Corporation from a dismissal of its third party demand against Olivetti Corporation of America on an exception of no cause of action. Thus, the only issue is whether C.I.T.’s third party petition states a cause of action.

The principal demand was filed by Jefferson Business Services, Inc. against Olivetti, C.I.T. and Robert J. Vallon for rescission of a lease of an accounting system. Jefferson alleged that it leased the system from C.I.T. after being solicited by Olivetti’s agent, Vallon. The plan was for Olivetti to sell the system to C.I.T. which, in turn, would lease it to Jefferson. In the lease agreement signed by Jefferson was a typed provision allowing Jefferson to return the system to C.I.T. after the first 24 months, although the printed lease form provided for a 60-month lease term. After using the system for the first 24 months and being dissatisfied with the system’s performance and the service Olivetti provided, Jefferson notified C.I.T. of its decision to terminate the lease. Only then did Jefferson learn that the typed provision had been inserted on Jefferson’s copy of the form by Vallon who forged the signature of C.I.T.’s authorized representative on the form.

In response to the principal demand C.I.T. filed an answer, reconventional demand and third party demand against Olivetti and Vallon, seeking to recover the balance of the purchase price it had paid Olivetti for the system. C.I.T. alleged that Vallon was “duly employed by and as agent for third party defendant, Olivetti, to lease” the system to Jefferson and that the lease form accepted by C.I.T. did not contain the typewritten 24-month provision which had been given to Jefferson. C.I.T. alleged that Val-lon had perpetrated a fraud which he subsequently admitted to C.I.T. and prayed for damages and attorney fees against Olivetti along with Jefferson and Vallon.

Olivetti’s exception of no cause of action was on the basis that “there are not facts alleged that if proved would make Olivetti responsible for the alleged forgery or fraudulent acts of the defendant Robert J. Val-lon.” This appeal is from the trial court’s sustaining Olivetti’s exception and dismissing C.I.T.’s third party demand against it.

In this court, Olivetti relies on Florence v. Clinique Laboratories, Inc., 347 So.2d 1232 (La.App. 1st Cir. 1977) and Blanchard v. Ogima, 253 La. 34, 215 So.2d 902 (1968), to support the trial court’s judgment. In the Florence case, the court considered whether Clinique was vicariously liable for the negligent conduct of two persons who sold plaintiff cosmetics to which she was allergic. The sales persons were employees of D. H. Holmes, a department store, but plaintiff attempted to hold Clinique liable on the theory that the sales persons were acting as Clinique’s agents. In dismissing the case against Clinique the court stated 1) for Cli-nique to be liable vicariously for the negligent conduct of the sales persons a master-servant relationship must exist rather than merely an agency relationship; and 2) the essential feature in establishing an employer’s vicarious liability is the right of control of the party and existence of a close relationship between the parties. Based on the facts in that case the court concluded that the sales persons were not the servants of Clinique.

Similarly, in the Blanchard case, the court found from the facts that Russo against whom plaintiff was attempting to establish vicarious liability for Ogima’s conduct had little or no control over Ogima and concluded from the facts that Ogima was not the servant of Russo and consequently he was not liable for Ogima’s negligence.

Olivetti’s problem on this appeal is that the judgment was on an exception of no cause of action. In determining whether a pleading states a cause of action the allegations are accepted as true and every reasonable interpretation must be accorded the language of the petition in favor of maintaining its sufficiency and affording the litigant an opportunity to present his evidence. Hero Lands Company v. Texaco, Inc., 310 So.2d 93 (La.1975). The petition alleges that Vallon was an agent and an employee of Olivetti and had contracted on behalf of his employer, Olivetti, to lease the system to Jefferson. In addition, attached to and made part of the third party petition is a letter to C.I.T. from Vallon in which he states all the incidents leading up to the lease agreement took place while he was employed as a computer systems salesman for Olivetti. Thus, C.I.T. did allege that Vallon was an employee of Olivetti and not merely an agent as were the sales persons in the Florence case and Ogima in the Blanchard case.

However, Olivetti next relies on Lou Con, Inc. v. Gulf Building Service, Inc., 287 So.2d 192 (La.App. 4th Cir. 1973) for the proposition that Olivetti is not legally responsible for the criminal act of Vallon even if he was Olivetti’s employee. The Lou Con case was decided after a trial on the merits in which all of the circumstances were considered to determine if Gulf’s employee was acting in the exercise of the functions in which he was employed so as to make LSA C.C. Art. 2320 applicable to the situation. Clearly, the case gives no support to Olivetti’s argument that the exception was properly sustained but it demonstrates that the issues raised by Olivetti on the exception will be more properly available to it in its answer and defense on the merits of the case.

Under C.I.T.’s allegations Vallon’s fraud induced it to buy the system from Olivetti and lease it to Jefferson. C.I.T. seeks to recover from Olivetti the balance of the purchase price it paid to Olivetti. Since Olivetti benefitted from Vallon’s fraud by collecting that purchase price C.I.T.’s cause of action is based in part on the following from Board of Commissioners of Orleans Levee District v. Shushan, 197 La. 598, 2 So.2d 35 (1941):

“Where fraud is alleged as a basis of the complainant’s right to relief, all persons who participated in the alleged fraud and those who are its beneficiaries are proper parties to the suit.” (emphasis added)

Having concluded that C.I.T. stated a cause of action in its third party demand against Olivetti, the judgment appealed from is reversed and set aside, and there is judgment in favor of third party plaintiff C.I.T. Financial Services Corporation and against third party defendant Olivetti Corporation of America, overruling Olivetti’s exception of no cause of action. The case is remanded to the district court for further proceedings. All costs of this appeal are taxed against Olivetti Corporation of America with other costs to await the outcome of the case.

REVERSED AND REMANDED.


author: EDWARD J. STOULIG, Judge Pro Tem.

text:
    Caroline Jeanette BRISTER et al. v. The PARISH OF JEFFERSON et al.
    No. 11484.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 13, 1981.
    Hugh G. Oliver, Westwego, for plaintiffs-appellants.
    Dillon & Cambre, Gerard M. Dillon, New Orleans, for defendants-appellees.
    Before CHEHARDY and GARRISON, JJ., and EDWARD J. STOULIG, J. Pro Tem.
   EDWARD J. STOULIG, Judge Pro Tem.

This is an appeal from the granting of a summary judgment in favor of the defendants, the Parish of Jefferson and its insurer, Firemen’s Fund Insurance Company dismissing plaintiffs’ tort action.

No need exists to recite in detail all of the allegations of the petitions except to state that a physical altercation occurred in the plaintiffs’ home when Robert Kerry, a dog catcher for the Parish of Jefferson, assisted by a deputy sheriff, attempted to locate and seize plaintiffs’ dog. Petitioners allege the entry, into their home was made without a warrant and that an assault and battery was committed upon Mr. and Mrs. Gerard. A supplemental petition was filed alleging that following the removal of Mr. and Mrs. Gerard to the Jefferson Parish Jail, Kerry entered plaintiffs’ home without a warrant and conducted a search of the premises. In a second supplemental petition it is alleged that the “melee and brutalization” and subsequent “invasion of petitioners’ home” have caused a continuing psychic fear in plaintiffs’ minor children, who are parties to these proceedings by representation through their father.

Defendants, Parish of Jefferson and Firemen’s Fund simultaneously filed an exception of no cause of action (which is still pending) and the motion for summary judgment.

The bases for summary judgment are two-fold: (1) the Parish of Jefferson is not the employer of the sheriff or his deputies and therefore it cannot be vicariously liable for the deputy sheriff’s conduct; and (2) Robert Kerry, the parish’s employee was not guilty of any tortious conduct and the damages claimed are not compensable in law.

Defendants’ contention that no employer-employee, master-servant, or principal-agent relationship exists between the Parish of Jefferson and a deputy sheriff is well founded.

In Foster v. Hampton, 352 So.2d 197 (La. 1977) the Supreme Court cited with approval the holding of Nielson v. Jefferson Parish Sheriff’s Office that there is no vicarious liability on the part of the parish for the actions of a sheriff or any of his deputies since the sheriff’s office exists and functions independently of the governing body of the parish and therefore the parish exercises no control or discretion over the sheriff’s actions. The Foster case also reaffirms that a deputy sheriff is an employee of the state.

The charter of the Parish of Jefferson, Section 3:03(A) specifically provides the parish president “shall not be responsible for, nor have authority to administer or supervise, the office of the Sheriff of Jefferson Parish.”

The granting of summary judgment rejecting plaintiffs’ claim against the Parish of Jefferson and Firemen’s Fund for the alleged acts of the deputy sheriff is affirmed.

Defendants’ second contention admits that Robert Kerry is an employee of the Parish of Jefferson and as such, the parish could be vicariously liable under the Re-spondeat Superior doctrine for the tortious conduct of its employee if committed in the course and scope of his employment; however, they submit the employee did not commit a tort and the damage alleged in the pleadings, “psychic fear”, is not com-pensable in law.

It should be noted these defendants did not file any responsive pleadings other than the previously referred to exception and motion. For this reason the only documents considered by the Court were plaintiffs’ petitions and the affidavit of C. Gerald Pucheu, claims supervisor, attesting to the fact that the attached policy of Firemen’s Fund was in force and effect on the date of the alleged incident.

Petitioners allege that the defendants (one of whom is Robert Kerry) were guilty of unlawfully entering plaintiffs’ home, committing an assault and battery upon them in the presence of their children, and falsely arresting them. It is also alleged that after plaintiffs’ arrest, Robert Kerry again entered their home “without a warrant and conducted a search of the premises” in the presence of their minor children which caused them to have a “continuing psychic fear”.

The record is devoid of any countervailing affidavits or other evidence to sustain Robert Kerry’s entry into plaintiffs’ home on two occasions was justified under state statute or the ordinances of Jefferson Parish. Only in their brief do defendants contend that Robert Kerry could and did request police assistance under R.S. 3:2737 in the fulfillment of his duties. This statute as well as the Jefferson Parish Ordinance presupposes that the duty attempted to be performed is being done in a lawful and proper manner. No predicate was laid to justify entry into plaintiffs’ home without a warrant.

Defendants submit that plaintiffs’ failure to specifically allege that Kerry participated in the assault and battery is sufficient to negate any factual issue of his involvement. We disagree.

While the plaintiffs’ pleadings may be somewhat inartfully drawn and could be more specific as to Kerry’s role in the commission of the assault and battery, there are sufficient narrative allegations in the petition to make the extent of his participation a genuine issue of fact. In the absence of controverting evidence, we cannot conclude, for the purpose of summary judgment, that no genuine issue of this fact exists merely because the pleadings may be somewhat vague.

Summary judgment is not to be used as a substitute for a trial on the merits. LeBlanc v. Landry, 371 So.2d 1276 (La.App. 3rd Cir. 1979); Payn v. West Jefferson General Hospital, 385 So.2d 40 (La.App. 4th Cir. 1980). It is a procedural device to avoid unnecessary litigation where the posture of the record is such, that it must be concluded that the proponent is entitled to judgment as a matter of law. Chaisson v. Domingue, 372 So.2d 1225 (La.1979). It follows that any dispute over a significant fact must be resolved against the granting of the motion.

In the instant matter there are several issues of material facts: (1) the legality of Kerry’s entry and search of plaintiffs’ home; (2) extent of his participation in the altercation; and (3) the damages suffered by plaintiffs directly caused by Kerry. These are genuine issues of material fact which warrant granting plaintiffs the opportunity to have their validity adjudicated after a full blown trial.

In passing we note and direct the attention of counsel to the fact that judgment has been rendered granting summary judgment in favor of Robert Kerry but we are unable to find any pleading in the record seeking this relief.

For the foregoing reasons, the summary judgment dismissing the claim of plaintiffs, Caroline and Anthony Gerard, individually and on behalf of their five minor children, against the Parish of Jefferson and Firemen’s Fund for the alleged tortious conduct of Deputy Sheriff Koehler is affirmed. The summary judgment dismissing these plaintiffs’ claims against the defendants, Parish of Jefferson and Firemen’s Fund based upon the alleged tort committed by the employee, Robert Kerry is annulled and the matter is remanded to the trial court for further proceedings consistent with the views herein expressed. Cost of this appeal is to be borne by the appellee.

AFFIRMED IN PART; ANNULLED IN PART; REMANDED.

      . 242 So.2d 91 (La.App. 4th Cir. 1970).

      . Ordinances of Jefferson Parish, Chapter IV, Art. II. Animal Control and Welfare, Section 4-14 et seq.