author: GULOTTA, Judge.

text:
    Agnes Dufour, Wife of/and Maurice E. ROQUES v. Salvador A. ALFONSO.
    No. 11976.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 2, 1981.

      Vondenstein & Power, Michael J. Power, Kenner, for plaintiff-appellee.
    Grisbaum & Kleppner, Ferdinand J. Kleppner, Metairie, for defendant-appellant.
    Before GULOTTA, GARRISON and CHEHARDY, JJ.
   GULOTTA, Judge.

In this dispute between the plaintiffs, sellers-contractor, and the defendant-purchaser, the trial judge ordered Salvador A. Alfonso to remit to plaintiffs the sum of $6,000.00 withheld from payment on the purchase price, together with legal interest from date of judicial demand until paid, and costs. The trial judge further ordered plaintiffs to repair “the broken brick around the water pipe at 3709 Barbara Place; the carpeting in the den at the same address; the counter-top-oven unit at the same address; and, to repair the chipped edges of the patio slab.”

On May 18, 1978, defendant purchased the improved immovable property from plaintiffs for the sum of $95,000.00. Alfonso moved into these premises prior to completion of construction approximately forty days before the act of sale was passed. Because of defendant’s complaints regarding defects in the construction, plaintiffs agreed to allow Alfonso to retain the sum of $6,000.00 pending repair of the defects. Plaintiffs claim the repairs have been completed and they are entitled to the amount withheld, but defendant claims the defects still exist.

Maurice Roques testified that prior to the passing of the act of sale defendant had complained about a defective patch in the carpet and problems with the front porch, a lighting fixture and a sink. Thereafter defendant gave an expanded list of complaints to Roques. According to plaintiffs, when the complaints were corrected and demand for the $6,000.00 was made upon defendant, a third and more expanded list of complaints was given to them. According to Roques, everything complained of by defendant had been corrected and other demands regarding yard fill, an attic separator, and landscaping were not included in the purchase price.

Defendant, on the other hand, introduced into evidence a list of twenty-seven complaints of defects. His testimony generally explained that those defects continued to exist as of the time that the matter was heard on March 6, 1980. Supporting defendant were the testimony and report from a building inspector for Dixie Savings and Loan Association that generally corroborate defendant’s claim. According to this witness’ report, the cost of the repairs and corrections would amount to $4,610.00. Defendant’s specific complaints were a $100.00 expense to complete the fence; property not landscaped as agreed; rear yard not filled; bricks broken near the water pipe; a slab foundation never finished or dressed; cracks in sidewalk and driveway; unfinished entrances to front and rear doors; patio slab chipped and cracked; “meters on front not aligned”; carpet not properly installed at downstairs doors; carpet patched in den; one coat of interior paint used instead of two; sheetrock not properly finished; installation of ovens not proper, cut too large; counter “dropped” by oven; bar not properly installed; warping of upstairs floor; carpet seams not properly joined; leaking air conditioning; rotting of floor below air conditioning unit resulting from leaking; division of attic between two apartments never completed; “dormer” not installed; chipped wash basin in master bath never replaced; scraped and torn wall paper; plaster in carpet; linoleum in baths not installed properly; and warped, cracking shelves in the closet.

The trial judge simply accepted the testimony of Maurice Roques and Frank Incardona, his partner, and rejected defendant’s testimony and that of his expert witness. He concluded that four defects continued to exist at the time the matter was heard. Accordingly, he ordered plaintiff to make the repairs of those defects. Under the circumstances, we cannot say the trial judge erred in accepting plaintiffs’ testimony and rejecting defendant and his expert’s.

We find merit, however, to defendant’s argument that the trial judge erred in awarding interest from date of judicial demand rather than from date of judgment. LSA-C.C. Art. 1938 provides that all debts shall bear the specified rate of legal interest “from the time they become due, unless otherwise stipulated.” An unliquidated claim is due from the time it becomes ascertainable. Alexander v. Burroughs Corp., 359 So.2d 607 (La.1978); Hicks v. Rucker Pharmacal Co., Inc., 367 So.2d 399 (La.App. 2nd Cir. 1978), writ denied, 369 So.2d 1360 and 1361 (La.1979). In our case, a dispute existed as to whether the contractor was entitled to the $6,000.00 retainage or whether the purchaser properly withheld the amount pending repair of defects. Under these circumstances, it is clear that contractor’s right to receive the retainage depended on the trial court’s determination whether defects existed. Since certain defects were found and ordered repaired, interest should run from the time of judgment.

Finally, we find no error in the judgment ordering defendant to pay all costs. LSA-C.C.P. Art. 1920 provides:

“Unless the judgment provides otherwise, costs shall be paid by the party cast, and may be taxed by a rule to show cause. Except as otherwise provided by law, the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable.”

Assessment of costs lies within the trial court’s discretion and is not subject to reversal unless there exists an abuse of that discretion. Green v. Orleans Parish School Bd., 365 So.2d 834 (La.App. 4th Cir. 1978), writ denied, 367 So.2d 393 (La.1979); Succession of Batton v. Prince, 384 So.2d 506 (La.App. 2nd Cir. 1980). We find no such abuse in our case.

DECREE

Accordingly, the judgment in favor of Agnes Dufour, wife of/and Maurice E. Ro-ques and against Salvador A. Alfonso, in the sum of $6,000.00 is amended to provide interest from date of judgment instead of from date of judicial demand. As amended, the judgment is affirmed.

AMENDED, AND AS AMENDED, AFFIRMED.


source: Caselaw Access Project

author: KLEES, Judge.

license: Public Domain

text:
    Albert J. LAURO v. Dorothy Lucille Cappadora, Wife of Albert J. LAURO.
    No. 11977.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 2, 1981.

      Reed & Reed, Floyd J. Reed, New Orleans, for defendant-appellee.
    Archie C. Tatford, Jr., New Orleans, for plaintiff-appellant.
    Before REDMANN, KLIEBERT and KLEES, JJ.
   KLEES, Judge.

On March 5,1980, Albert J. Lauro, filed a petition for a divorce from his wife, Mrs. Dorothy Lauro, on the grounds of living separate and apart for two years without reconciliation. The wife answered the petition and averred that she was free from fault in the causes of the separation of the parties in May, 1975, and sought permanent alimony.

Trial on the merits was held and the trial judge rendered a judgment in favor of the husband, decreeing a divorce and further decreed that the wife was free from fault in the causes of the separation of the parties, that the separation was caused by the abandonment of the matrimonial domicile by the husband, and condemned the husband to pay to the wife alimony in the amount of $1,274.00 per month. This appeal stems from the awarding of permanent alimony to the wife.

From a judgment awarding his ex-wife $1,274.00 per month permanent alimony, former husband appeals contending the trial court erred, (I) in finding the ex-wife free from preseparation fault, and (II) in prohibiting testimony of the ex-husband and his witnesses regarding post-separation fault.

First, on the question of whether the trial court erred in finding the ex-wife free from fault and awarding her permanent alimony, the wife (spouse) seeking alimony has the burden of proving freedom from fault in order to be entitled to alimony following divorce. Brannon v. Brannon, 362 So.2d 1164 (La.App. 2nd Cir. 1978); Sachse v. Sachse, 150 So.2d 772 (La.App. 1st Cir. 1963).

Recently in Pearce v. Pearce, 348 So.2d 75 (La.1977), the court set forth the applicable principles as follows:

“We have held that, under this statute representing an award of alimony to a wife without ‘fault’ the word ‘fault’ contemplates conduct or substantial acts of commission or omission by the wife viola-tive of her marital duties and responsibilities. A wife is not deprived of alimony after divorce simply because she was not totally blameless in the marital discord.” Vicknair v. Vicknair, 237 La. 1032, 112 So.2d 702 (1959); Adler v. Adler, 239 So.2d 494 (La.App. 4th Cir. 1970).

To constitute fault, a wife’s misconduct must not only be of a serious nature, but must also be an independent contributory or proximate cause of the separation. Kendrick v. Kendrick, 236 La. 34, 106 So.2d 707 (1958).

In the instant case, the trial judge found that the wife did meet her burden of proof. He concluded that the separation of the parties was due to the husband’s abandonment of the matrimonial domicile. The party seeking a legal separation on the grounds of abandonment must prove the elements thereof. Boudreaux v. Tanner, 295 So.2d 511 (La.App. 1st Cir. 1974), Gilberti v. Gilberti, 338 So.2d 971 (La.App. 4th Cir. 1976).

Therefore, a party alleging abandonment must prove that (1) there was a withdrawal from the common dwelling; (2) that the withdrawal was without lawful cause; and (3) that the withdrawing party has constantly refused to return to live with the other spouse. Boudreaux v. Tanner, supra.

Once proved, the burden then shifts to the opposing party to prove the alleged abandonment was done with lawful cause or adequate provocation. Farkas v. Farkas, 264 So.2d 721 (La.App. 1st Cir. 1972).

1. It was uncontested that the husband did leave the marital domicile.

2. The trial judge found that the husband refused to return and in his reasons stated:

“The husband hás testified that the wife has asked him to come back a number of times.”

3. The trial judge also felt that the husband failed to meet his burden of proving that his abandonment was with lawful cause.

“I believe that the husband is at fault. I think that he abandoned the marital domicile and without just cause.”

In his attempt to determine whether there was lawful cause to abandon the matrimonial domicile, the record supports the trial judge’s conclusion that, there was quarrelling and bickering between the parties, but that it was such bickering as would ordjnarily occur in a marriage. In addition, he made references to Rittiner v. Sinclair, 374 So.2d 680 (La.App. 4th Cir. 1979), which held a course of conduct approved and consented to by both spouses is not mutual fault, Davieson v. Trapp, 223 La. 776, 66 So.2d 804 (1953).

Name calling on the part of one spouse toward the other did exist but the trial judge concluded that the statements were of no weight. He determined, and the evidence supports him, that the statements were made to those persons close to the parties who did not communicate the statements to the former husband or anyone else. In addition, he concluded that the statements were not the cause of the physical separation.

To prove defamation constituting fault, it is necessary to prove a defamatory accusation was made in bad faith, publicly to a person to whom the accuser had no legitimate excuse to talk about the subject of the accusation. Flake v. Flake, 163 La. 1022, 113 So. 361 (1927).

However, the fact that a wife makes known her suspicions of her husband’s supposed misconduct to confidential friends does not entitle him to a divorce on the grounds of public defamation where she does so while seeking sympathy or advice. Watson v. Watson, 209 So.2d 528 (La.App. 2nd Cir. 1968).

As another item of fault on the wife’s part, the ex-husband charges that there were infrequent or non-existent sexual relations. In respect to sexual relations, the evidence supports the trial court’s conclusion that a sexual relationship did exist between the parties. Although it was infrequent it did exist and thus cruel treatment was not proven.

“Before the conduct complained of here can constitute cruel treatment within the meaning of C.C. Art. 138(3) there must be a persistent and unjustified refusal to engage in sexual intercourse.” Von Bechman v. Von Bechman, 386 So.2d 910 (La.1980).

The question in this case of the wife’s lack of fault, or the husband’s abandonment as the sole cause of the separation of the parties, was a factual one and the findings of the trial court are to be accorded substantial weight on review. Le Blanc v. Le Blanc, 362 So.2d 568, (La.1978).

“The question of a wife’s fault under the statute providing for alimony when a wife has not been at fault and has not sufficient means for her support is a factual one.” Morgan v. Morgan, 260 So.2d 336 (La.App. 4th Cir. 1972).
“We have recognized that a trial court’s findings of fact on the issue of a wife’s fault will not be disturbed on appeal unless found to be manifestly erroneous.” Williams v. Williams, 215 La. 839, 41 So.2d 736 (1949). Fletcher v. Fletcher, 212 La. 971, 34 So.2d 43 (1948).
“In the area of domestic relations, much discretion must be vested in the trial judge and particularly in evaluating the weight of evidence which is to be resolved primarily on the basis of the credibility of witnesses. The trial judge having observed the demeanor of the witnesses is in the better position to rule on their credibility.” Trosclair v. Trosclair, 337 So.2d 1216 (La.App. 1st Cir. 1976).
“The factual findings of the trial court are therefore to be accorded very substantial weight on review.” Gilberti v. Gilberti, 338 So.2d 971 (La.App. 4th Cir. 1976), Canter v. Koehring Company, 283 So.2d 716 (La.1978).

Second, on the question of whether the trial court erred in restricting to a proffer the testimony of plaintiff-husband and his witnesses regarding post-separation conduct, we note that this is not a case of a judgment of separation, but of a non-judicial separation.

In Fulmer v. Fulmer, 301 So.2d 622 (La.1974), the Supreme Court held that a judgment of separation in favor of a party is a conclusive determination of fault which precludes litigation of the fault issue in a subsequent divorce action, “except as to post-separation fault”. The specific language used in Fulmer was:

“Thus where a judicial separation is decreed, as caused by the fault of one spouse or the other, such fault as judicially determined to be the cause of the separation is normally determinative of the issue of whether the husband or the wife is not a fault, for the purpose of deciding whether the wife is entitled to alimony under Article 160. Such a conclusion is, of course, separation fault, such as adultery; for the sole effect of the separation judgment is a conclusive adjudication as to which spouse’s pre-sep-aration fault primarily caused the separation.” 301 So.2d 622 at 629.

The language of Fulmer indicates that evidence of post-separation fault can be admitted if the party seeking to prove such fault seeks a divorce based on this fault. In Florent v. Florent, 393 So.2d 912 (La.App. 4th Cir. 1981) the court interpreted Fulmer as allowing evidence of post-separation fault as a defense to a claim for alimony. See also: Moon v. Moon, 345 So.2d 168 (La.App. 3rd Cir. 1977).

Fulmer would not oblige excluding evidence of post non-judicial separation fault, and we therefore consider as evidence the proffered testimony. That testimony, however, of rudeness and name-calling, similar to that prior to the physical separation, is insufficient to alter the findings of the trial court.

For the foregoing reasons, the judgment of the trial court is AFFIRMED. Costs to be borne by Appellant.

AFFIRMED.


author: SCHOTT, Judge.

text:
    Gayle FREY v. Geraldine Galle, Wife of/and Merlin GALLE.
    No. 11996.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 2, 1981.

      Wiley J. Beevers, Metairie, for plaintiff-appellant.
    ■ John G. Lankford, Lankford, Schneider & Lankford, New Orleans, for defendants-ap-pellees.
    Before BOUTALL, SCHOTT and BARRY, JJ.
   SCHOTT, Judge.

Plaintiff has appealed from a dismissal of her suit for damages sustained when she allegedly fell through a hole in the floor of the kitchen of the premises she rented from defendant. The issue is whether under the facts and circumstances of this case plaintiff is precluded from recovery where she knew about the defective floor for a long period of time before the accident, never complained about the defect to the landlord, and had the accident under circumstances where she clearly assumed the risk of the accident which allegedly caused her to be injured.

According to plaintiff the accident happened on September 5, 1978, when she stepped across the kitchen floor to the sink to obtain a glass of water for a visitor, Bernadette Jackson. She testified that her foot and leg went through a hole in the floor to the torso of her body and that Bernadette Jackson witnessed the accident. She further testified that she had known the floor was rotten since October, 1976, when she procured an estimate from a carpenter to repair the floor, and that she reported this condition to defendants at that time.

Defendants denied getting such a report from plaintiff. They testified along with their son that various repairs had been made in the premises at plaintiff’s request, but no mention was ever made of the floor. The trial judge resolved this conflict in favor of defendants and the record provides no basis for an opposite finding in this court. We find as did the trial judge that the plaintiff knew the floor in the kitchen was rotten for two years before the accident, but she never complained about the condition to the landlords who were unaware of the problem.

The trial judge dismissed plaintiff’s suit on the basis of contributory negligence. In this court plaintiff argues that defendants are strictly liable under C.C. Art. 2322 and that contributory negligence is not a legal defense to a claim based on strict liability.

This question was discussed at length in Wunstell v. Crochet, 325 So.2d 727 (La.App. 4th Cir. 1976) and the court concluded that the tenant’s recovery against her landlord would be barred by the defense of assumption of the risk where plaintiff was fully aware of the risk created and knew her action could produce a disastrous result, yet she voluntarily proceeded to encounter the risk. While the trial judge labeled plaintiff’s conduct as contributory negligence the defense of assumption of risk was pleaded and applies to this case since plaintiff was well aware of the rotten floor and for a long period of time voluntarily assumed the risk of using the floor despite the imminent danger. See Langlois v. Allied Chemical Corporation, 258 La. 1067, 249 So.2d 133 (1971).

Also applicable is the language of Redd v. Sokoloski, 2 So.2d 266 (La.App. 2nd Cir. 1941) where the court stated:

“... From our study of such authorities, we understand the rule to be that where a tenant has knowledge of the generally defective condition of a portion of the rented premises, but it reasonably appears that he might safely use it with the exercise of care, his use in such manner does not constitute contributory negligence that would bar his recovery in an action for damages resulting from the defects. If, however, he was aware of the defect causing the injury and it was such as to indicate to a reasonable-minded person that use of the defective portion was apparently and imminently dangerous, recovery is not permitted.”

Applying this principle to the facts of this case plaintiff was aware of the rotten floor in her kitchen, and, since that condition was such as to indicate to any reasonable person that the use of the kitchen floor, without regard to the area where the boards were rotten was apparently and imminently dangerous, she is precluded from recovery.

In his reasons for judgment the trial judge discussed a number of points in plaintiff’s testimony which were conflicting and unbelievable and he obviously did not consider her a credible witness. Although he makes no mention of it in his reasons for judgment the testimony of Bernadette Jackson is significant. She denied seeing the accident but stated that before the accident took place plaintiff showed her the hole in the kitchen floor, which plaintiff normally kept covered over with a small rug, and plaintiff told her that she (plaintiff) was going to fall into the hole deliberately and sue defendants for damages.

We have concluded that while the dismissal of plaintiff’s case by the trial judge on the basis of contributory negligence was perhaps a technical error in the use of legal terminology, he correctly dismissed plaintiff’s suit on the basis of assumption of risk and the judgment is affirmed.

AFFIRMED.


author: BOUTALL, Judge.

text:
    Ina Brown, wife of and Calvin P. THOMPSON v. Guy LEEFE, Jr.
    No. 11997.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 2, 1981.
    Usry, Leefe, Weeks & Roniger, Richard K. Leefe, Guy L. Leefe, III, New Orleans, for Guy L. Leefe, Jr., defendant-appellee.
    Before BOUTALL, SCHOTT and BARRY, JJ.
   BOUTALL, Judge.

This appeal arises from a judgment of the trial court which maintained the defendant’s exception of prescription dismissing the plaintiff’s suit in redhibition.

A suit in redhibition was filed by the plaintiffs, Ina and Calvin Thompson, against the defendant Guy Leefe, Jr. in Civil District Court in Orleans Parish. Pursuant to LSA R.S. 13:1171(C) this matter was transferred to the Commissioner for that court who made findings of fact with which we agree. On November 5, 1975 the plaintiffs purchased a house located at 1677 Pace Boulevard in New Orleans from the defendant. At the time of the sale there were no apparent defects in the home as established by the testimony of the CAB appraiser and the plaintiffs. Some 3 months after the sale, in the time period of January through March of 1976, the plaintiffs noticed large cracks in the walls on the exterior of the house and in the sheetrock inside the premises. Over the course of the next four months the Thompsons were unable to obtain any action from Leefe and ultimately secured an estimate for the repairs from a contractor in November of 1976. Thereafter no action was taken until August 8, 1977 when a suit in redhibition was filed by the plaintiffs against the defendant seeking a rescission of the sale and the recovery of the purchase price and damages for mental anguish. Following the close of the plaintiff’s case at trial, the defendant requested that the Commissioner maintain an exception of prescription as to the redhibition claim. This exception was sustained by the Commissioner dismissing the plaintiff’s claim. Upon review by the Civil District Court the judgment of the Commissioner was maintained. This appeal by plaintiffs followed.

After conducting a review of the record before us we find that the factual findings made by the Commissioner and maintained by the district court contain no manifest error. The law governing prescription of an action in redhibition is well settled. Under the law of sales the prescription period for breach of warranty is one year from the date of the sale or from the buyer’s discovery of the defect if the vendor knew or is chargeable with the knowledge of the defect. Louisiana Civil Code Articles 2534, 2546; Northwest Ins. Co. v. Pulmosan Safety Equipment Corp., 321 So.2d 791 (La.App. 4th Cir. 1975). In the case before us the plaintiffs gained knowledge of the vice or defect in their home in the form of cracking walls between January and March of 1976. An action in redhibition was not brought by them until 1 year and 5 months later. Therefore, the action in redhibition brought by them had prescribed.

The judgment is affirmed.

AFFIRMED.

      . The interpretation made by the Commissioner of Hill v. John L. Crosby, Inc., 353 So.2d 421 (La.App. 4th Cir. 1977) was an accurate one. We agree with this refusal to apply the theory used in that case to this proceeding. Hence, the plaintiffs had notice of the defect in their home when they first discovered the cracks some time in the early part of 1976 and not in November of 1976 when they secured an estimate of the cost of repairs of the defect.


author: BARRY, Judge. SCHOTT, Judge,

text:
    Thomas U. BUCHHOLZ, Stephen D. Treuil, and Richard P. Brazil v. DEALERS TRANSPORT COMPANY, Willie J. Braswell and Liberty Mutual Insurance Company. MISSOURI PACIFIC RAILROAD COMPANY v. Willie J. BRASWELL, Dealers Transport Company and Lumbermen’s Mutual Insurance Company.
    Nos. 12003, 12004.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 2, 1981.

      Ramsey, Bodron, Thames & Robinson, William W. Ramsey, Vicksburg, for plaintiffs/appellants Stephen D. Treuil and Missouri Pac. R. Co.
    Butler & Reynolds, Peter J. Butler, New Orleans, for plaintiff/appellant Stephen D. Treuil.
    Phelps, Dunbar, Marks, Claverie & Sims, Esmond Phelps, II, New Orleans, for plaintiff/appellant Missouri Pac. R. Co.
    Borrello & Huber, Bruce J. Borrello, Me-tairie, for defendants/appellees Dealers Transport Co., Willie J. Braswell and Liberty Mut. Ins. Co.
    Before BOUTALL, SCHOTT and BARRY, JJ.
   BARRY, Judge.

This litigation arose when a tractor-trailer truck owned by Dealers Transport Co. (Transport), driven by Willie J. Braswell and insured by Liberty Mutual Insurance Company (Liberty), struck the side of a train engine owned by Missouri Pacific Railroad (Railroad) and operated by Steven Treuil with two crew members Thomas U. Buchholz and Richard Brazil. The Railroad sued Transport and Liberty for damages to its engine. The Railroad employees, Treuil, Brazil and Buchholz, also sued Transport, its driver Braswell and its insurer Liberty for personal injuries. Braswell filed suit against the Railroad for his injuries and Liberty intervened to recover compensation benefits paid to Braswell. The lawsuits were consolidated and after trial the train crew, Buchholz and Brazil, were awarded damages and all other parties were denied recovery. The train operator Treuil and the Railroad lodged devolutive appeals which are consolidated.

In April, 1976 at approximately 7:00 a. m. appellant’s freight train was proceeding in St. Charles Parish in a westerly direction and approached the town of Killona and the railroad crossing at State Highway 3141. This area of the railroad line had a speed limit of 50 m. p. h., but this particular morning the Railroad had in effect a train order limiting the maximum speed to 40 m. p. h. It is uncontroverted that as the train approached the Highway 3141 intersection it was traveling between 30-35 m. p. h. and that a heavy fog was at ground level restricting visibility to no more than 100 feet ahead.

When the train was approximately 2,200 feet before the intersection its engine tripped an electric circuit on the track which commenced operation of a flasher signal and bell located at the highway crossing. Treuil then engaged the locomotive horn as an additional warning to potential motorists and pedestrians of the approaching train.

The train engine cleared approximately three-fourths of the highway crossing when it was struck on its side by the tractor-trailer truck owned by Transport and driven by Braswell. The impact threw the train crew, Treuil, Brazil and Buchholz, from their seats to the floor of the engine. Treuil engaged the emergency brake and the train stopped approximately 300 feet past the crossing where the collision occurred.

The trial judge gave oral reasons for judgment finding Transport’s driver negligent for his failure to hear the bell and horn and see the flashing signals at the crossing. The lower court also found that the weather was extremely foggy producing limited visibility and the train’s speed of 30-35 m. p. h. constituted negligence because Treuil had a duty to use “common sense” to reduce the train speed because of the restricted visibility: no authority is cited for this decision.

It is axiomatic that each case presenting a train-vehicle collision should be tried on its own facts and circumstances and the negligence of the parties are matters of factual determination to be followed by application of proper law. Odom v. Hooper, et al, 273 So.2d 510 (La. 1973). It is equally well settled that factual determinations by the trial court are not to be disturbed in the absence of manifest error. Canter v. Koehring Company, 283 So.2d 716 (La. 1973). The pertinent part of the lower court’s reasons for judgment provide:

“The court concluded without any doubt whatsoever that on the morning in question, that the weather conditions were a very foggy status, making visibility very, very poor. The court is of the opinion that the engineer of the train, Steven Treuill, did, in fact, sound his horn and ring his bell, and the court does find that the railroad crossing signals were working on the morning in question.”

Appellants do not contest the trial court’s finding of fact but assert error as a matter of law in finding negligence under the circumstances of this particular case. Early jurisprudence confirms that a railroad company is not required to slow its trains during rainy or foggy weather which prevents the operator of the locomotive from having good visibility. Jeter v. Texas and Pacific Railroad Company, 149 So. 144 (La.App.2nd Cir. 1933), citing Foster v. Texas and Pacific Railway Company, 5 La.App. 601 (1st Cir. 1927). Also, the presence of heavy fog does not make the ordinary crossing a dangerous trap. Breaux v. Texas and Pacific Railroad Company, 176 So.2d 640 (La.App. 1st Cir. 1965).

It appears the trial judge applied common sense rules of the road applicable to automobiles in order to find the Railroad and its engineer guilty of negligence. However, the distinction between trains and automobiles was drawn in Homeland Insurance Company v. Thompson, 12 So.2d 62 (La.App. 1st Cir. 1943) where there was heavy ground fog which prevented visibility beyond 40 to 160 feet, the train was traveling 40 to 50 miles- per hour and struck a truck stalled on the train tracks. The court held there was no negligence in operating the train at that speed under those conditions and stated:

“The rule of law which requires an automobile to be driven at such a rate of speed so as to be stopped within the range of the operator’s vision does not apply to operators of a train on a railroad. The train of the defendant company was being operated on its own property; it could not be so easily stopped, nor could it be veered in any other direction. To require a train to be so operated in a sparsely settled community and at a time when traffic is not usually present at such a speed as to permit its being stopped within the distance an object may be seen on the track during a heavy fog would seriously interfere with train schedules in which the public is as much interested as the railroad company.” Id. at p. 64.

This Circuit also adopted the same reasoning in holding that a train is not required to slow its speed in rainy or foggy weather. In American Employers’ Insurance Company v. Missouri Pacific Railroad Company, 111 So.2d 380 (La.App.Orl. 1959) a truck was stalled on railroad tracks and was struck by a train traveling approximately 30 miles per hour in heavy fog with visibility between 100 and 200 feet. There, as in this appeal, the signal light located at the crossing was flashing and ringing and the train’s bell was functioning. In holding the train engineer free of negligence, this court stated:

“The law applicable to the facts as revealed herein and as found by the trial court appears to be well settled. The courts have recognized that fog and rain prevent a locomotive’s operators from having good visibility of the tracks ahead, the same as the existence of a curve; and judges have rationalized on innumerable occasions that a railroad company is not required to slow its trains during rainy or foggy weather.”

Appellees submit that the trial judge correctly reasoned that this train should operate at a speed which would permit it to be stopped within the engineer’s range of vision. However, our jurisprudence dictates otherwise. “It is too well settled to require citation that the law does not require trains to be operated at a speed permitting them to be stopped within the range of vision of its operators.” Campbell and Company v. Texas and Pacific Railroad Company, 152 So. 351 (La.App. 2nd Cir. 1934). This rule was maintained shortly thereafter when visibility was impaired because of a sharp curve in the track. Smith v. Thompson, 185 So. 71 (La.App. 2nd Cir. 1938), citing with approval visibility impairment as a result of rainy or foggy weather as held in Foster v. Texas and Pacific Railroad Company and Jeter v. Texas and Pacific Railroad Company, supra.

We note that in sparsely settled areas, such as this location in St. Charles Parish, a train may proceed at any speed consistent with the legal speed limit and the safety of the train. Moody v. Texas and Pacific Railroad Company, 37 So.2d 346 (La.App. 2nd Cir. 1948). The “open country doctrine” was followed by this court in Theriot v. Texas and New Orleans Railroad Company, 220 So.2d 563 (La.App. 4th Cir. 1969), writ refused, 254 La. 142, 222 So.2d 886 (1969).

Our settled jurisprudence is that, in negotiating a railroad crossing, the driver of a motor vehicle must use his senses of sight and hearing for possible oncoming trains; he is burdened with the responsibility of seeing and hearing that which he might and could have seen and heard; he is required to use such care as is commensurate with the existing danger; and, if his view of the right-of-way is obstructed, he must use a higher caution. Sule v. Missouri Pacific Railroad Company, 181 So.2d 280 (La.App. 4th Cir. 1965) at p. 283. Serpas v. New Orleans Public Belt Railroad, 356 So.2d 107 (La.App. 4th Cir. 1978).

The trial judge did not cite any authority for holding the train engineer and Railroad negligent. However, in an effort to sustain the lower court’s “common sense” theory, appellee relies upon two cases which are factually distinguishable and legally inapplicable. McFarland v. Illinois Central Railroad Company, 122 So.2d 845 (La.App. 1st Cir. 1960) involved a dangerous crossing because of a sharp angle at which the street intersected railroad tracks and where the sharp incline of the street combined with trees, brush, and other growth which seriously hampered the motorist’s view — this constituted a dangerous crossing and a trap requiring a greater duty on the part of the railroad with respect to the obstructions. The train’s speed of 30 m. p. h. as it approached the crossing was held excessive under those facts. The crossing in the instant case was not and is not claimed to be a trap.

Appellee primarily relies upon Odom v. Hooper, et al, supra, where the railroad was found negligent in parking an unlighted boxcar at an intersection which was struck by an automobile at 2:35 a. m. That appeal involved review of a summary judgment which dismissed the vehicle owner’s lawsuit. Under those facts our Supreme Court said there are instances where the railroad should be aware of atmospheric hazards, and warnings should be extended to alert drivers to unusual obstacles (the boxcar) in their paths. The court concluded that the alleged railroad negligence was a matter of fact, summary judgment was inapplicable, and the case was remanded for trial. The concurrence of Justice Tate specifies the limited effect of that ruling is to apply to all night motorists the same standard of care when they run into a negligent obstruction on the highway not reasonably anticipated or observed — whether that obstruction be a truck or a train or whatever.

We feel that if common sense is to be applied to the operation of trains under varying weather and road conditions, then this court should not impose restrictions or guidelines which by their very nature must vary according to the circumstances. Fog which is present in one area may be absent a short distance away and variance of train speeds depending upon atmospheric conditions could conceivably cause more problems. Rigid time schedules require constant performance which must be maintained because of the public interest and as a public necessity for the movement of goods and people.

This train engineer did everything he was responsible to do. The train’s speed of 30-35 m. p. h. was well below the posted limit of 50 m. p. h. The engineer sounded the train’s horn and the crossing signals were functioning well in advance of reaching the intersection. We therefore reach the inescapable conclusion that the sole and proximate cause of this accident was the negligence of Transport’s driver in failing to heed the various audio and visual warning signals and attempting to cross the train tracks. The holding of the district court is therefore patently erroneous, contrary to long established jurisprudence, and clearly constitutes manifest error.

Damages to the Railroad’s engine were stipulated in the amount of $3,277.68.

The train engineer Treuil is entitled to recovery for his personal injuries. He saw Dr. Vincent Tumminello the day after the accident and was diagnosed with a contusion of the right knee and a strain of a joint on his right finger. Two months following the accident Treuil was examined at the request of Liberty and Dr. Claude Williams reported that the right knee was “mildly symptomatic”. Over seven months after the accident Dr. Williams again examined Treuil who still complained of occasional pain. A subsequent examination by Dr. Stewart Phillips prior to trial revealed degenerative arthritis in both knees. Lost wages in the record amount to $3,200. Considering the type of impact Treuil experienced plus the nature and duration of his pain, we feel an award of $7,500 is appropriate, plus lost wages of $3,200.

Accordingly, that portion of the judgment appealed is reversed and set aside, and:

IT IS ORDERED that there be judgment in favor of Stephen D. Treuil and against Dealers Transport Company, Willie J. Bras-well and Liberty Mutual Insurance Company, jointly, severally, and in solido, in the sum of Ten Thousand Seven Hundred Dollars ($10,700) with legal interest from date of judicial demand until paid;

IT IS FURTHER ORDERED that there be judgment in favor of Missouri Pacific Railroad Company and against Dealers Transport Company, Willie J. Braswell and Liberty Mutual Insurance Company, jointly, severally, and in solido, in the sum of Three Thousand Two Hundred Seventy-Seven Dollars Sixty Eight Cents ($3,277.68) with legal interest from date of judicial demand until paid and for all costs of these proceedings.

REVERSED AND RENDERED.

SCHOTT, J., concurs.

SCHOTT, Judge,

concurring:

In his reasons for judgment the trial court concluded that the signals were working at this crossing and that the engineer Treuil was sounding his horn as he approached. However, the court concluded that Braswell was not able to see the lights flashing because of the fog but he could or should have heard the bell ringing from the signal and the horn of the engine. He properly concluded that Braswell was negligent in proceeding in disregard of these signals.

However, the court found that Treuil was negligent in maintaining a 30 to 35 mile per hour speed as he approached the crossing because this speed was “too high ... for the weather conditions that were involved herein.”

All of the evidence shows that Braswell ran into the locomotive as it was crossing the road. For this reason I fail to see any relationship between Treuil’s speed and the accident which would have taken place in the same way even if Treuil had been going five miles an hour. The train was there and Braswell ran into it. The speed of the train was not a causative factor and the accident was caused solely by the negligence of Braswell in proceeding across the tracks in utter disregard of the signals.

It is significant that Braswell admitted (Vol. II, Tr. 100) that he could see 20 or 25 feet ahead of him and that he was going between 5 and 7 miles per hour. Thus, by his own admission he should have seen the flasher lights from at least 25 feet, and this light was twelve and a half feet from the rail providing him with approximately 35 feet of distance in which to stop while proceeding at 5 to 7 miles per hour. He was also on notice of his proximity to the train tracks by virtue of another warning sign one-fifth of a mile away from the tracks. When these factors are considered it seems clear that Braswell’s negligence was the sole cause of the accident and the speed of the train into which Braswell ran his truck had nothing to do with it from the standpoint of causation.

I concur in the award of $7500 in view of Dr. Phillips’ testimony that Treuil sustained post traumatic condromalacia of the right knee and was left with a 10% permanent disability of that knee. Phillips testified that plaintiff would suffer discomfort and dysfunction of the knee on a permanent basis.


author: CHEHARDY, Judge.

text:
    Richard Dale POWELL v. Barbara Ann BARSAVAGE, wife of Richard Dale Powell.
    No. 12023.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 2, 1981.

      Craig J. Cimo, Gretna, for plaintiff-appellant.
    George C. Ehmig, Gretna, for Mildred Barsavage, defendant-appellee.
    Before GULOTTA, GARRISON and CHEHARDY, JJ.
   CHEHARDY, Judge.

Plaintiff, Richard Dale Powell, appeals a district court decision denying the rule nisi brought by him seeking the change of custody of the child Bonnie Ann Powell from that of Mildred Barsavage, the maternal grandmother, to him the natural father of the said child and ordering the care, custody and control of the minor child to remain with Mildred Barsavage. The plaintiff also appeals that part of the judgment on a rule sought by Mildred Barsavage in her favor and against the plaintiff, making unpaid child support executory in the sum of $4,056 subject to a credit of $725, or a total of $3,331, together with legal interest thereon from the date that each payment of $26 became due and payable, until paid. Powell was also ordered to pay all costs of the proceedings.

The record reveals the plaintiff married Barbara Ann Barsavage on June 14, 1972, and of that marriage one child was born, Bonnie Ann Powell.

On September 29, 1976, a judgment of divorce was awarded to the plaintiff and that judgment also ordered him to pay child support for his minor child in the amount of $26 per seek. Additionally, the temporary care, custody and control of the child was awarded to Mildred Barsavage.

On April 14, 1980, Mr. Powell filed a rule seeking custody of Bonnie, and on June 9, 1980, Mrs. Barsavage filed a motion claiming the plaintiff was in arrears in the payments of child support in the sum of $4,056 and asking that the arrearage should be made executory.

In giving his reasons for judgment from the bench, the district court judge declared:

“ * * * This Court is faced with the comparing of the best interest of the child and between that of the maternal grandmother and the father. Best interest may be in the opinion of this Court, what is the better interest of the child. Evidence basically presented to this Court today has been the rehabilitation of the husband. He felt that he was unable to keep the child and possibly being incapable, I guess at the time of May, 1975. And most of this testimony today relates to his rehabilitation in showing that he is a moral and in good character, and that he also goes to church, that he also holds a job, and that he has two previous children, that he is married and that he has the ability to keep the child. This Court has to make a determination not whether or not the father in this case has rehabilitated himself, but I keep going back to what is in the best interest of the child. And I think on the other hand that it has been shown to the Court that Mrs. Barsa-vage, the maternal grandmother, has not that she is unfit, in fact evidence has been brought out that she is very capable. It appears to the Court that she is well physically, even though she has had a heart attack in the immediate past. There has been testimony by all parties that she does keep a clean and normal house. That she makes a good home for the child, Bonnie, that there are other' children in the neighborhood that she plays with, she does go to school, she maintains average grades in school. And this Court can’t readily conclude that it is better that this custody be changed from the grandmother to the father. And the Court recognizes that generally the best interest of the child and the better interest is probably with the natural parent. And I think the husband in this case has made a strong showing that today he is capable to keeping the child, but I cannot conclude that this Court should change that custody that has been granted to the grandmother and that the .burden, it is a strong burden, placed upon the father in which to do this. I think, not only that he is rehabilitated, but I think he’s got to further show that the grandparent in this instance is unfit or incapable, as well as it is in the better interest of the child that he have that custody. This little girl has been in the home since age 2, and that is over five years now with the grandmother. And I don’t know if this Court changed the custody whether it would be in the better interest, at least I’m not convinced that it is in the better interest. There is liberal, the Court finds that there is liberal visitation privileges given to the father. Whether or not liberal visitation privileges is tantamount to a split custody or custody to the father in this case. I think at least the father testifies that he can see the child whenever he wants, and appears the child lives close by. And I can’t say that physically living in his household would be in the better interest of that child. Accordingly, this Court is going to keep the custody with the grandparent. One other fact I should point out. Although it doesn’t weigh as heavily on the Court, the fact that the husband did not make payments since October, 1978. I think that is a factor that this Court has to consider in determining the best interest. But this Court is not giving as much weight to that. The Court does find that the defendant is delinquent in the amount of, I calculated that ... and I guess I don’t know how you all can come up with $4,056.00, but I guess it turns out to be... You all figured it at $26.25 a week, is that it?”

The applicable jurisprudence to a case such as the present one is very clear. In the oft-quoted case of Wood v. Beard, 290 So.2d 675 (La.1974), the Court declared at 677:

“When the parent competes with non-parents of the child, the parent’s right to custody is superior, unless the parent is unable or unfit, having forfeited parental rights. State ex rel. Martin v. Garza, 217 La. 532, 46 So.2d 760 (1950); State ex rel. Simpson v. Salter, 211 La. 918, 31 So.2d 163 (1947); State ex rel. Martin v. Talbot, 161 La. 192, 108 So. 411 (1926); Ex parte Lincoln, 128 La. 278, 54 So. 818 (1911). See also State ex rel. Lombardo v. Miller, 232 La. 617, 94 So.2d 888 (1957). No such forfeiture has been found by either court below, and the evidence will not support such a finding. Nor will the evidence support a conclusion that custody in the parent will be inimical to the welfare of the child.”

The holding of Wood, supra, has been reiterated in the recent case of Duffie v. Duffie, 387 So.2d 654 (La.App. 1st Cir. 1980), where the mother of a child sought a change of “physical possession” of the 9-year-old boy from the maternal aunt and uncle to herself who had been awarded “provisional” custody. In considering parental rights to custody vis-a-vis a nonpar-ent’s rights, the court said at 657-658:

“The primary consideration in every case between parents involving child custody is the best interest of the child. La.C.C. art. 157; Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971); Shanklin v. Shanklin, 376 So.2d 1036 (La.App. 1st Cir. 1979). The trial judge’s written and oral reasons for judgment reflect a deep concern on his part to do what was right in this case. Based to a large extent on a private discussion with the youth, the trial judge determined that the child’s best interest lay in keeping physical possession with the maternal aunt and uncle and provisional possession with the mother, and giving reasonable and liberal visitation rights to the mother. His holding, however, runs headon into the rule laid down by the Louisiana Supreme Court in Wood v. Beard, 290 So.2d 675 (La.1974).
“The court in Wood v. Beard, supra, held that the parent has the paramount right to the custody of the child and can only be deprived of custody under compelling circumstances. In so holding, the court said at 677:
‘It is in the best interest of the child of tender years to grant custody to the mother unless the mother is unfit or otherwise unsuitable. Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971) and cases there cited. In the application of this rule it is not appropriate for the court to compare the mother’s home with another when the mother and her home are acceptable, and then award the custody to the contestant who can provide greater advantages for the child. State ex rel. Rothrock v. Webber, 245 La. 901, 161 So.2d 759 (1964); State ex rel. Perdue v. Carkuff, 182 La. 920, 162 So. 729 (1935). The best interest of the minor is not served by denying parental custody after deciding which of two qualified, competing family groups can deliver a quality of child custody more pleasing to the court. A judicial comparison of qualified competitors for custody of a child does violence to the rule of “parental right.” (See Blow v. Lottman, 75 S.D. 127, 131, 59 N.W.2d 825 (1953). “If the mother is a fit parent she cannot be denied custody of her children even though the grandmother is better qualified to rear them.”). * * *’
The ruling of Wood v. Beard has been followed in Deville v. LaGrange, 379 So.2d 37 (La.App. 3rd Cir. 1979); Tolar v. Cunningham, 368 So.2d 1188 (La.App. 3rd Cir. 1979), writ denied 369 So.2d 710 (La.1979); Ingram v. Saragusa, 313 So.2d 324 (La.App. 1st Cir. 1975); Mertens v. Mertens, 308 So.2d 508 (La.App. 3rd Cir. 1975), writ refused, 313 So.2d 240 (La.1975).
“It could of course be argued that by awarding provisional custody to the mother and physical possession to the Ah-rends, the trial court has followed the rule set forth in Wood. However, to allow such a custody order to stand would merely be circumventing the rule of Wood, and this we will not allow. It is clear that unless the parent is unable or unfit, the parent’s right to custody of the child vis-a-vis nonparents is superior.”

Furthermore, in the case of Joseph Lawrence Ingargiola v. Marilyn Clesi, wife of Joseph Lawrence Ingargiola, 396 So.2d 497, No. 12035 on the docket of this court, handed down March 10, 1981, this court recognized the holding of Wood v. Beard, supra, in a situation similar to the facts of the present case. The interpretation of the law in Duffie, supra, was also similarly followed in the case of La Croix v. Cook, 383 So.2d 59 (La.App. 2d Cir. 1980).

Moreover, there is no evidence in the record that the original decree granting custody of Bonnie to her grandmother temporarily was a “considered” decree (i. e., that there was evidence taken at the proceedings in regard to her fitness to have the care, custody and control of the child), a factor that was the responsibility of Mrs. Barsavage to introduce in order for her to invoke the “double burden” standard against the father at this change of custody hearing. Stevens v. Stevens, 340 So.2d 584 (La.App. 1st Cir. 1976).

There was no evidence produced at the district court hearing that Richard Powell is unfit to rear Bonnie or that he in any way forfeited his parental rights to have custody. He is married, working and also rearing two younger children, who, all testimony indicates, enjoy a good relationship with Bonnie. It was also established that Bonnie spends a great deal of time with the Powells and Mrs. Powell testified she treats Bonnie in the same manner she treats her own two children. There was also evidence and testimony that Mr. Powell has seen to Bonnie’s medical needs over the years the grandmother has had custody of her. Under the circumstances, and in view of the law articulated in Wood v. Beard, supra, this court has no alternative but to reverse the trial court decision on this issue and award custody of Bonnie to her father.

We interpret the legislative scheme as reflected by the recent amendments to LSA-C.C. arts. 146 and 157 to mean that where the parental right (in a custody contest between a parent and a nonparent) interferes with the best interest of the child, the “best interest” concept is superior.

In the instant case, custody with either party will not do violence to the “best interest” concept. While we are reluctant to reverse the trial court’s custody determination in any case, we are convinced from this record that the child’s best interest will be served if custody is transferred to the father.

We can find no error, however, in the district court’s award to Mrs. Barsa-vage, making executory past-due child support owed by Powell. The general rule is that the father’s obligation to pay child support is only satisfied by making the payments, and the only way a father can relieve himself of the obligation of child support is by initiating a proceeding to have the judgment amended, suspended or terminated. Blankenship v. Blankenship, 382 So.2d 982 (La.App. 1st Cir. 1980).

Our jurisprudence also holds, however, that rights under a previously awarded alimony judgment may be waived, under certain circumstances, by agreement with the person responsible for the payments of support. Duplechan v. Duplechan, 270 So.2d 264 (La.App. 3d Cir. 1972). In the case of Dubroc v. Dubroc, 388 So.2d 377 (La.1980), the Court concluded there was an agreement between the parties to suspend part of the child support payments attributable to the maintenance of their son while he was being cared for in his father’s home, and also found that the agreement was enforceable.

Similarly, our jurisprudence establishes that where a person having custody of a child voluntarily places the child in the custody of the father for an extended period of time, the father is entitled to credit for such period of time on any past-due child support. Henson v. Henson, 350 So.2d 979 (La.App. 2d Cir. 1977). However, it has also been held by the courts that a wife’s mere acquiescence in the husband’s failure to pay the full amount of support does not amount to a waiver. Dubroc v. Dubroc, supra.

In the present case, although there was testimony from Powell and his wife that Bonnie’s grandmother asked them to suspend the support payments so she could obtain welfare assistance, this was emphatically denied by Mrs. Barsavage. It was, apparently, a finding of fact on the part of the district court judge that no such agreement of waiver of support payments existed between Powell and Mrs. Barsavage, and although Powell enjoyed liberal visiting privileges with the child, it was not established that he kept Bonnie in his custody for any extended periods of time, at her grandmother’s request, which would allow him a credit on the unpaid past-due child support payments. This court can find no manifest error in these findings of fact by the district court judge, and, therefore, we will not disturb them on review.

Accordingly, this court affirms that part of the trial court judgment making past-due child support payments executory in the sum of $4,056 subject to a credit of $725, or a total of $3,331, together with legal interest thereon from the date each payment of $26 became due and payable, until paid. For the reasons stated, we reverse that part of the judgment dismissing the rule nisi brought by Powell and hereby order that the custody, care and control of Bonnie Ann Powell be changed from that of Mildred Barsavage to her natural father, Richard Dale Powell. That part of the judgment ordering the plaintiff to pay the costs of the proceedings is affirmed.

AFFIRMED IN PART; REVERSED IN PART AND RENDERED.


text:
    Glenn A. SINGLETON v. Rudolf KINDLER, et al. Maud ALLEN v. Glenn A. SINGLETON, et al.
    Nos. 12033, 12034.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 2, 1981.

      Ignatz G. Kiefer, LeRoy A. Hartley, Richard M. Goldman, New Orleans, for third-party plaintiff-appellant.
    Camp, Carmouche, Palmer, Barsh & Hunter by Frederick S. Haygood, New Orleans, for Allstate Ins. Co., third-party defendant-appellee.
    Before BOUTALL, SCHOTT and BARRY, JJ.
   BOUTALL, Judge.

This appeal arises from a judgment of the trial court which dismissed the third party demand for reimbursement made by the plaintiff’s uninsured motorist (UM) carrier against the defendants.

On or about October 15, 1976, Glenn Singleton was travelling in his automobile in an easterly direction on Louisiana Highway 18 accompanied by two guest passengers, namely Maud Allen and Elys LeBeauf, when Rudolf Kindler, who was travelling in a westerly direction, crossed the median of the highway thereby colliding with the Singleton vehicle. Allen, LeBeauf and Singleton sustained personal injuries in the collision. On January 17, 1977 Singleton filed suit against Kindler and his alleged insurer Allstate Insurance Co. (hereinafter referred to as Allstate) seeking recovery of damages for the personal injuries he received. Allstate answered denying that there was any policy in effect on behalf of Kindler on the date of the accident. Thereafter on May 20, 1977, American Fidelity Fire Insurance Co. (hereinafter referred to as American Fidelity) the liability (UM) carrier for Singleton entered into a settlement agreement with LeBeauf, one of the guest passengers. In entering this agreement, American Fidelity asserts it was operating under the belief that Kindler was indeed uninsured at the time of the accident as alleged by Allstate. On September 27, 1977 Singleton amended his original petition by naming his insurer American Fidelity as an additional defendant, seeking recovery under the UM provisions of his policy. Subsequently, a separate suit was filed on October 17, 1977 by Allen, the other guest passenger, against Singleton, his insurer American Fidelity, and Kindler. This suit was consolidated with the original Singleton action. Thereafter on December 14,1977 American Fidelity filed a third party petition seeking indemnity and/or subrogation from Kindler for any damages that the former may be held liable for unto Singleton and for the sum of $2422.50 paid by American Fidelity to LeBeauf which was allegedly due under the UM provisions of the Singleton policy. One year later American Fidelity filed a second third party demand against Allstate seeking indemnity and subrogation also for the amount it paid to LeBeauf pursuant to the UM provisions of the Singleton policy. On April 8, 1980 a settlement agreement was entered into between Allstate and the two plaintiffs, Singleton and Allen for the sums of $3,358.74 and $5,000 respectively, all within the liability limits of the Allstate policy of $10,000/20,000. Accordingly, the only issue remaining for trial was the third party demands brought by American Fidelity against Allstate and Kindler to recover its payment to the passenger LeBeauf.

Upon trial of this matter the lower court entered judgment dismissing both of the third party demands. From this judgment American Fidelity has appealed devolutive-iy-

On appeal the issue before us is whether American Fidelity, as the UM carrier for driver Singleton, is entitled to reimbursement by the defendant Kindler and/or his liability insurer Allstate for the sum which American Fidelity paid to one of the guest passengers, when Allstate had a liability policy in effect which would have covered the claim by the guest passenger.

Several different theories have been asserted for the purpose of permitting recovery by American Fidelity. One of them concerns the statutory scheme governing UM coverage in Louisiana. LSA-R.S. 22:1406(D)(4) provides for the reimbursement rights of the UM carrier who makes payment pursuant to a policy of UM insurance. It states:

‘ “D. The following provision shall govern the issuance of uninsured motorist coverage in this state.
‘ “(4) In the event of payment to any person under the coverage required by this Section and subject to the terms and conditions of such coverage, the insurer making such payment shall to the extent thereof, be entitled to the proceeds of any settlement or judgment resulting from the exercise of any rights of recovery of such person against any person or organization legally responsible for the bodily injury for which such payment is made, including the proceeds recoverable from the assets of the insolvent insurer.” ’

Under this statute when a UM carrier makes payment pursuant to the terms of a policy of UM coverage, the UM carrier can recover from a tortfeasor any proceeds of a settlement of judgment that was entered into in favor of the insured and against the tortfeasor. The statute is silent and does not provide a right of recovery by the insured from a tortfeasor or person legally responsible for the bodily injury in cases other than settlements or judgment in favor of the insured.

In the matter at hand American Fidelity paid benefits to the guest passenger Le-Beauf allegedly pursuant to the terms of its UM policy with the plaintiff Singleton. There were no proceeds paid to LeBeauf by the defendant tort feasor Kindler or his liability insurer Allstate. Hence, by virtue of the terms of the statute governing the reimbursement of UM carriers for payments made in connection with UM policies American Fidelity is not provided any recovery from Kindler or Allstate.

A second theory argued before us concerns the concept of subrogation, both conventional and legal. Regarding conventional subrogation, Louisiana Civil Code Art. 2160 states in pertinent part:

“ * * * * The subrogation is conventional:
1. When the creditor, receiving his payment from a third person, subrogates him in his rights, actions, privileges, and mortgages against the debtor; this subro-gation must be expressed and made at the same time as the payment.”

Upon a review of the record in this matter we find that a general release was entered into between LeBeauf and American Fidelity and Singleton, but in no way does this release establish, intimate, or even hint at a subrogation in favor of American Fidelity of the rights, privileges, and claims which LeBeauf may have against the defendants Kindler and Allstate. Hence, no conventional subrogation exists which would permit American Fidelity recovery.

Louisiana Civil Code Art. 2161 provides those instances in which legal subro-gation takes place. It states:

“ * * * * Subrogation takes place of right:
“1. For the benefit of him who, being himself a creditor, pays another creditor, whose claim is preferable to his by reason of his privileges or mortgages.
“2. For the benefit of the purchaser of any immovable property, who employs the price of his purchase in paying the creditors, to whom this property was mortgaged.
“3. For the benefit of him who, being bound with others, or for others, for the payment of the debt, had an interest in discharging it.
“4. For the benefit of the beneficiary heir, who has paid with his own funds the debts of the succession.”

Of the four different instances of this type of subrogation the only one with any possible application in the matter at hand is the third one. Here American Fidelity and Singleton entered into an agreement with Le-Beauf, one of the guest passengers, wherein the latter received a sum of money in exchange for the complete release of the former. Thus, the release was for the benefit of American Fidelity and Singleton and not for the benefit of the other debtors, namely the defendants Kindler or Allstate. Moreover, American Fidelity as the UM carrier was not bound with Kindler and Allstate because it could not be liable until the policy limits on the Allstate policy had been exhausted. Hence, Louisiana Civil Code Article 2161(3) is not applicable.

A final theory presented concerns the reimbursement of a third person who makes a payment thereby extinguishing the obligation of another. Louisiana Civil Code Article 2134 states:

“ * * * * An obligation may be discharged by any person concerned in it, such as a coobligor or a surety.
“The obligation may even be discharged by a third person no way concerned in it, provided that person act in the name and for the discharge of the debtor, or that if he act in his own name, he be not subrogated to the rights of the creditor.”

Upon a review of the record in this matter we find that this theory of reimbursement is not applicable. The payment made by American Fidelity to LeBeauf was made in the names of American Fidelity and its insured Singleton and not in the names of the other debtors, Kindler and Allstate. American Fidelity was both the UM carrier and liability carrier of Singleton. There is an obvious benefit for paying the passenger and obtaining a release of all claims against the driver and his insurer. There is no showing that this was a UM settlement.

In view of the foregoing, the judgment of the trial court is affirmed.

AFFIRMED.

      . In Nieman v. Travelers Ins. Co., 368 So.2d 1003 (La.1979) the Supreme Court was faced with the issue of “whether a ‘consent to settle clause’ in an UM policy is valid and operative, and whether a plaintiff, who without his UM carrier’s consent settles and releases an unde-rinsured tortfeasor and that tortfeasor’s liability insurance carrier, has defeated his cause of action against the UM carrier.” In the course of the opinion the court by dicta interpreted LSA-R.S. 22:1406(D)(4). The court stated:
      “On the basis above of statutory interpretation, we find that the UM insurer has no right under R.S. 22:1406(D)(4) other than the right to reimbursement from such proceeds, if any, that the insured in fact recovers from the underin-sured tortfeasor”.
      If by this finding the court intends to say that the silence of the statute in not recognizing other methods of recovery acts as a bar to recovery under other situations, we believe that the statute is being too strictly interpreted. Subsection (4) appears designed to permit the UM insurer to recover from its insured out of that which he collects from the tortfeasor to the extent that the insured is, in effect, recovering twice. The interpretation that this is the only method of recovery available to the UM carrier will cause the UM carrier to require a suit by its insured against the tortfeasor before it will enter settlement, just the type of situation that the court was seeking to avoid in Nieman.


text:
    Consuella Mercadel, Wife of/and James MERCADEL v. WINN DIXIE LOUISIANA, INC.
    No. 12094.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 2, 1981.
    Robert E. Peyton, Christovich & Kearney, New Orleans, for defendant-appellee.
    James C. Witcher, II, New Orleans, for plaintiffs-appellants.
    Before BOUTALL, SCHOTT and BARRY, JJ.
   SCHOTT, Judge.

Plaintiff has appealed from a dismissal of her suit for damages resulting from a slip and fall in defendant’s supermarket. The issue is whether the defendant breached any duty so as to make itself liable to plaintiff under circumstances where the foreign substance on which plaintiff slipped had been spilled only moments before her accident.

Plaintiff had completed her shopping and was in the checkout line when she realized she had forgotten to get sugar. She left the line to get the sugar and upon her return slipped on some bleach.

This bleach had just leaked from another customer’s shopping basket. The bottle was in a tilted position in the basket and had left a trail of drops of bleach from the shelf where it was displayed to the cashier’s counter where plaintiff slipped.

Defendant’s duty was to keep the premises safe or to warn of the danger if an unsafe condition existed. Williams v. Winn Dixie Louisiana, Inc., 393 So.2d 680 (1981). In this case the court found that the defendant had time to warn plaintiff of the danger created by the spilled substance, but the evidence in the present case shows that the substance was on the floor for no more than two minutes, and unlike Williams nothing happened to bring it to the attention of defendant’s employees until after plaintiff fell.

The short length of time transpiring between the spill and the fall was not such as to call into play defendant’s protective measures as discussed in Gonzales v. Winn Dixie, 326 So.2d 486 (1976), Kavlich v. Kramer, 315 So.2d 282 (1975) and other cases. In short, the evidence does not show any breach of duty such as would make defendant liable to plaintiff under these circumstances.

Accordingly, the judgment is affirmed.

AFFIRMED.


text:
    Pamela Cato BARNES, separated wife of/and Jesse Richard Barnes v. FIREMAN’S FUND INSURANCE COMPANY.
    No. 12113.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 2, 1981.
    Beard, Blue, Schmitt, Mathes, Koch & Williams, A. J. Schmitt, III, New Orleans, for Fireman’s Fund Ins. Co., defendant and third-party plaintiff-appellant.
    Carolyn W. Gill, New Orleans Legal Assistance Corp., Marrero, for Armel Lucas, defendant and third-party defendant.
    Moliere, Flanagan & Arceneaux, by Nelson E. Rivers, Metairie, for Joseph R. Pal-misano defendant and third-party defendant.
    Before BOUTALL, SCHOTT and BARRY, JJ.
   BOUTALL, Judge.

The issue in this appeal is the application of the one year prescriptive period in Louisiana Civil Code Article 3536 to a supplemental and amended petition and a third-party demand based on tort.

Mrs. Pamela Cato Barnes and her separated husband, Jesse Richard Barnes, sued their insurer Fireman’s Fund Insurance Company for recovery of vandalism damage to their home around November 15, 1977. Their petition was filed on April 26, 1978, and the insurer answered on May 30, 1978. Nearly a year later, on May 9, 1979, Fireman’s Fund filed a third-party petition against six named defendants, the parents or guardians of the minors alleged to have committed the vandalism, alleging that the vandalism occurred on November 30, 1977. Thereafter, on June 29, 1979, the plaintiffs filed a supplemental and amended petition in which they named as party defendants substantially the same persons.

To these two pleadings, defendant Barbara McFarland Czapla and defendant Joseph R. Palmisano, Sr., filed exceptions of prescription asserting that both the third-party petition and the supplemental and amended petitions were filed in excess of the one year limitation allowed by Louisiana Civil Code Article 3536. The trial court maintained the exception of prescription and dismissed plaintiffs’ suit and the Fireman’s Fund third-party demand, not only as to the two named exceptors, but as to all of the defendants. Fireman’s Fund has appealed.

Although there was some sort of partial hearing of the case on trial day, resulting in a settlement of the main demand between plaintiffs and their insurer, as well as the judgment on the exception of prescription, there is nothing in the record before us to indicate what facts or pleadings may have been considered by the trial court. Suffice it to say that it is conceded that the vandalism took place in November, 1977, and that both the third-party demand of Fireman’s Fund and the supplemental and amended petition of plaintiffs were filed more than one year beyond that date. On this appeal, Fireman’s Fund would have us consider its third-party demand as a suit for indemnification, and has referred us to several authorities which support the view that prescription does not run in indemnification cases until after adverse judgment is rendered against the third-party plaintiff. That argument is not appropriate here. This is quite plainly a suit by an insured against its insurer to pay off a policy claim. The third-party demand by the insurer against the alleged vandals is authorized solely by the subrogation of the insurer to the insured’s rights, either under the policy provisions or by agreement of the parties. The right of the insurer can be no more than those acquired by the Barnes. Because both the third-party demand and the supplemental and amended petition were untimely filed, each is barred by the one year prescriptive period. See for example, Northern Assurance Company of America v. Waguespack, 304 So.2d 865 (La.App. 4th Cir. 1974).

The major difficulty we have in this case is the application of the judgment to all defendants dismissing both original plaintiffs and third-party plaintiffs’ demands. As noted, only two of the defendants actually filed exceptions of prescription and we see nothing in this record in order to permit us to apply the judgment to the other defendants as in Northern Assurance Company, supra. The exception of prescription is a peremptory exception which must be specially pleaded by a party in order for it to be operative. This exception cannot be supplied by the court. C.C.P. Article 927; Lawyer’s Title Services, Inc. v. Boyle, 308 So.2d 479, 481 (La.App. 4th Cir. 1975); Bourgeois v. Ducos, 182 So.2d 539, 543 (La.App. 1st Cir. 1966). Nor has a plea of prescription been filed in this court. See C.C.P. Article 2163. Although on the face of the pleadings in this record, it appears that the claims against the other defendants have prescribed, neither the trial court nor this court has the authority to so rule. Additionally we note that only Fireman’s Fund has appealed and only the judgment against it on its third-party demand is at issue here. The judgment against plaintiffs is final.

Accordingly the judgment of the trial court is affirmed insofar as it dismisses the demand of the third-party plaintiff Fireman’s Fund Insurance Company against Barbara McFarland Czapla and Joseph R. Palmisano, Sr., but the judgment is vacated and set aside as it relates to the other named defendants, and this matter is remanded to the trial court for further proceedings. Appellant Fireman’s Fund Insurance Company is to bear all costs of the proceedings against Barbara McFarland Czapla and Joseph R. Palmisano, Sr. Assessment of other costs to await the final decision in this case.

AFFIRMED IN PART, VACATED AND SET ASIDE IN PART AND REMANDED IN PART.


author: FORET, Judge.

text:
    VILLE PLATTE CONCRETE SERVICE, INC., Plaintiff-Appellee, v. WESTERN CASUALTY & SURETY COMPANY, et al., Defendants-Appellants.
    No. 8253.
    Court of Appeal of Louisiana, Third Circuit.
    June 11, 1981.

      Franklin, Moore & Walsh, Ray C. Dawson, Baton Rouge, for defendants-appellants.
    Preston N. Aucoin, Ville Platte, for plaintiff-appellee.
    Before GUIDRY, FORET and CUTRER, JJ.
   FORET, Judge.

Ville Platte Concrete Service, Inc. (Plaintiff) brought this action on open account to recover the sum of $7,934.75. Defendants are the Western Casualty & Surety Company (Western); the Evangeline Parish Police Jury (Police Jury); and B. J. Gauthier, Inc.

Western filed a third party demand against B. J. Gauthier, Inc., and Deborah Gauthier and B. J. Gauthier, individually, and named the Police Jury as an additional third party defendant by an amended third party petition. The Police Jury filed a peremptory exception to Western’s third party demand pleading no cause and no right of action.

Plaintiff’s action proceeded to trial where the trial court rendered judgment in its favor and against Western in the principal action. The trial court also dismissed plaintiff’s suit against the Police Jury.

Western appeals and presents four issues:

(1) Whether a contract existed between plaintiff and Western for sales on open account;
(2) Whether plaintiff can recover from Western under the “Public Contracts Law” (LSA-R.S. 38:2181 et seq.);
(3) If so, has plaintiff proved its claim against Western, and if so, are the items claimed recoverable under the “Public Contracts Law”;
(4) Whether plaintiff may recover attorney’s fees.

Plaintiff has answered the appeal seeking an increase in the amount awarded as attorney’s fees and damages for frivolous appeal.

FACTS

B.J. Gauthier, Inc. (the general contractor) undertook the construction of the new Evangeline Parish Courthouse (the Courthouse) located in Ville Platte, Louisiana. Plaintiff is in the business of furnishing concrete and other building materials, together with labor and equipment.

Western was the surety on the performance bond executed by the general contractor in favor of the Police Jury. Eventually, financial problems experienced by the general contractor became so severe that Western had to be called in to complete the courthouse project. Plaintiff became aware of the fact that Western was assisting the general contractor when Western began to pay its bills. This had begun as early as May 23, 1977, when Western paid plaintiff $1,210.56. Western also paid plaintiff a total of $27,616.28 between November 29, 1977 and February 16,1978 for labor, equipment and materials furnished to the general contractor. Thereafter, plaintiff furnished additional labor, materials and equipment to the general contractor, which was billed $7,934.75.

Western refused to pay these amounts and plaintiff filed two labor and material-man’s liens upon the courthouse and parking lot. Plaintiff instituted this action on January 1, 1979, to have those liens recognized and to recover from defendants, in solido, the sum of $7,934.75, which it claimed it had sold to defendants on open account. Plaintiff also sought attorney’s fees.

Western failed to answer the petition, and plaintiff entered a default judgment against it on February 28, 1979. The preliminary default was confirmed and judgment was rendered in favor of plaintiff and against Western on March 5, 1979. Western was granted a suspensive appeal, and this Court reversed the trial court’s decision in Ville Platte Concrete Service, Inc. v. Western Casualty and Surety Company, 377 So.2d 532 (La.App. 3 Cir. 1979). There, we found that plaintiff had failed to prove a prima facie case of Western’s indebtedness to it and remanded the matter so that more evidence could be adduced.

Meanwhile, Western filed an answer containing a third party demand and named B. J. Gauthier, Deborah Gauthier and B. J. Gauthier, Inc., as third party defendants. Western alleged that third party defendants had executed an indemnity agreement in its favor and that these third party defendants were liable for any judgment rendered against it.

Western filed an amended third party petition shortly thereafter in which it named the Police Jury as an additional third party defendant. Western here alleged that it had notified the Police Jury that it intended to pay the amount claimed by plaintiff provided the Police Jury or its architect would approve the concrete work. Western further alleged that neither the Police Jury nor its architect would approve of this work although they had used the parking lot for two years. Therefore, Western also sought to hold the Police Jury liable for any judgment which might be rendered against it.

The Police Jury filed a peremptory exception pleading no cause and no right of action to Western’s third party demand and the exception was sustained by the trial court.

Plaintiff’s action came up for hearing a second time on August 5,1980, and the trial court again rendered judgment in favor of plaintiff and against Western in the sum of $7,934.75 on the principal action, together with $2,650.00 in attorney’s fees. Western was granted a suspensive appeal from the judgment.

PLAINTIFF’S ALLEGED CONTRACT WITH WESTERN

Plaintiff alleges that Western orally contracted with it for sales on open account which totaled some $7,934.75. Western denies the existence of any contract, written or oral, between it and plaintiff.

A creditor suing on open account has the burden of proving that the defendant, alleged to be the debtor, contracted for the sales on open account. Ville Platte Concrete Service, Inc. v. Western Casualty and Surety Company, supra; Frank Brigtsen, Inc. v. Alpha Builders, Inc., 351 So.2d 777 (La.App. 4 Cir. 1977).

Further, LSA-C.C. Article 2277 provides:

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

A plaintiff may satisfy the requirement of one credible witness, and the phrase “other corroborating circumstances” in LSA-C.C. Article 2277 means general corroboration. Independent proof of every detail of the witness’s testimony is not required. Samuels v. Firestone Tire & Rubber Co., 342 So.2d 661 (La.1977); Ville Platte Concrete Service, Inc. v. Western Casualty and Surety Company, supra; Ethridge v. Merchants Trust and Savings Bank, 389 So.2d 865 (La.App. 4 Cir. 1980).

E. J. Deville, plaintiff’s president and general manager, testified on its behalf. Deville stated that there was an oral agreement between plaintiff and the general contractor under which plaintiff agreed to furnish the labor, materials and equipment necessary for the construction of the parking lot of the courthouse. Deville testified that it was himself, on behalf of plaintiff, and B. J. Gauthier, the general contractor, who entered into this agreement. The invoices introduced into evidence by plaintiff show that the various items and amounts furnished by plaintiff were sold to the general contractor. The invoices also show that the items sold were received by Mike Mehuron, the construction superintendent for the general contractor.

Dempsey Bailey, office manager for Ro-raine and Associates, Inc., testified that Western was one of his firm’s customers. He stated that Western had sent him to the construction site when it began to assist the general contractor financially. He testified that it was his job to make sure that the bills paid by Western were for work that had been done properly. He was also to assist the employees of the general contractor in completing the project. Bailey testified that Mike Mehuron was never an employee of Western, although Western had paid his salary on behalf of the general contractor.

Plaintiff argues that Deville testified unequivocally that Western contracted with plaintiff to furnish the necessary materials, labor and equipment for the construction of the parking lot. Deville did testify that Western had “retained” plaintiff to do the work and that Dempsey Bailey had “authorized” this work. However, this was contradicted by the other testimony given by Deville which we noted above. Further, Deville stated that he wasn’t sure whether some of the items on the invoices had been requested by Bailey, and he was unable to testify as to any certain point in time when Western took over the project. Deville did testify that B. J. Gauthier remained in control of the project for some time after Western began paying the general contractor’s bills. Deville’s contradictory testimony is the only evidence in the record which indicates the existence of a contract between plaintiff and Western. There is no corroborating evidence.

We find that plaintiff failed to prove the existence of any contract between it and Western for sales on open account and therefore, plaintiff has no cause of action in open accounts. However, pursuant to the provisions of LSA-C.C.P. Article 2164, we also find that plaintiff has proven the existence of an oral contract between it and the general contractor.

APPLICABILITY OF “PUBLIC CONTRACTS LAW”

Defendant argues that the “Public Contracts Law” is applicable to the issues regarding plaintiff’s recovery in this action.

LSA-R.S. 38:2216(A) provides that:

“§ 2216. Written contract and bond
A. When any bid is accepted for the construction or doing of any public works, a written contract shall be entered into by the successful bidder and the public entity letting the contract, and the party to whom the contract is awarded shall furnish good and solvent bond in an amount not less than one-half of the amount of the contract, for the faithful performance of his duties.”

LSA-R.S. 38:2241(A) provides that:

“§ 2241. Written contract and bond
A. Whenever the state or any state board or agency or any political subdivision of the state enters into a contract in excess of one thousand dollars for the construction, alteration, or repair of any public works, the official representative of the governing authority shall reduce the contract to writing and have it signed by the parties. He shall require of the contractor a bond with good, solvent, and sufficient surety in a sum not less than fifty percent of the contract price for the faithful performance of the contract with an additional obligation for the payment by the contractor or subcontractor for all work done, labor performed, or material or supplies furnished for the construction, alteration, or repair of any public works, or for transportation and delivery of such materials or supplies to the site of the job by a for hire carrier, or for furnishing materials or supplies for use in machines used in the construction, alteration, or repair of any public works. No modification, omissions, additions in or to the terms of the contract, in the plans or specifications or in the manner and mode of payment shall in any manner affect the obligation of the surety. The bond shall be executed by the contractor with surety or sureties approved by the officials representing the state, state board or agency, or political subdivision and shall be recorded with the contract in the office of the recorder of mortgages in the parish where the work is to be done not later than thirty days after the work has begun.”

There can be no doubt that the construction of the Evangeline Parish courthouse is a public work or that the contract between the general contractor and the Police Jury involved amounts in excess of $1,000.00. Therefore, the “Public Contracts Law” governs that contract and the performance bond executed by the general contractor with Western named as the surety thereto.

EXTENT OF PLAINTIFF’S RECOVERY UNDER THE “PUBLIC CONTRACTS LAW”

The jurisprudence is settled that for a claimant to hold the contractor, or surety, liable under LSA-R.S. 38:2241 et seq., he must prove that there was a privity of contract, or that he furnished labor or materials to the contractor or a subcontractor. Harvey Canal Towing Company, Inc. v. Gulf South dredging Company, Inc., 345 So.2d 567 (La.App. 4 Cir. 1977); Richard and Gaudet v. Housing Authority of City of Lafayette, 323 So.2d 168 (La.App. 3 Cir. 1975), writ denied, 326 So.2d 337 (La.1976); Moore v. Coastal Contractors, Inc., 188 So.2d 467 (La.App. 3 Cir. 1966); Carr Oil Company, Inc. v. Donald G. Lambert Contractor, Inc., 380 So.2d 157 (La.App. 1 Cir. 1979), writ denied, 383 So.2d 24 (La.1980).

We have found that plaintiff proved the existence of an oral contract between it and the general contractor. However, defendant argues that plaintiff has failed to prove that some of the items, for which it seeks recovery, were actually sold to the general contractor. It is defendant’s contention that Mike Mehuron (the general contractor’s construction superintendent) had personally obtained a contract to do some work on the project and that plaintiff cannot distinguish between those items sold to Mehuron in that capacity from those sold to the general contractor.

E. J. Deville testified that Mehuron was billed separately for the items he purchased and that the invoices introduced by plaintiff were for items sold to the general contractor. Each of these invoices specifically states that the items thereon were sold to B. J. Gauthier, Inc., the general contractor. Further, Deville testified that he was actually at the construction site when most of the items were delivered.

Dempsey Bailey testified that he could find no fault with any of the invoices introduced by plaintiff, except for the last one dated March 31, 1978, as he was no longer defendant’s representative at that time. Bailey also testified that the reason defendant quit paying plaintiff and others was that defendant had paid out over $200,-000.00 on the project without receiving any payments under the general contractor’s contract with the Police Jury. Bailey stated that Western’s counsel advised that course of action.

Finally, we note that in the amended third party petition filed by Western, it admits that it agreed to pay plaintiff’s claim provided the Police Jury or its architect approved the concrete work.

We hold that the record establishes that the trial court’s finding that plaintiff provided $7,934.75 worth of labor, materials, and equipment to the general contractor for use in constructing the courthouse’s parking lot is not clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Canter v. Koehring Company, 283 So.2d 716 (La.1973).

Defendant also argues that some of the items listed on the invoices are for equipment rental and therefore, plaintiff cannot recover for these under the “Public Contracts Law”.

It is well settled that unless the items which compose the plaintiff’s claim form a component part of the completed str ucture or are consumed in the work, they are not lienable nor are they covered by the contractor’s bond given under the provisions of LSA-R.S. 38:2241. Further, it has been held under this rule that an amount claimed for rental of equipment is not covered by a bond given in accordance with LSA-R.S. 38:2241. Martinolich v. Albert, 143 So.2d 745 (La.App. 1 Cir. 1962); Mayeaux v. Lamco, Inc., 180 So.2d 425 (La.App. 1 Cir. 1965); Patent Scaffolding Company, Inc. v. Ross Corporation, 172 So.2d 364 (La.App. 4 Cir. 1965); Louisiana Highway Commission v. McCain, 197 La. 359, 1 So.2d 545 (1941).

The invoices introduced into evidence by plaintiff clearly show that some of the items listed thereon are for equipment rental. We find that plaintiff’s claim must be reduced by $1,093.00, which is the amount charged for equipment rental. Therefore, we award plaintiff $6,841.75 for work done, labor performed, and materials supplied under its oral contract with the general contractor.

ATTORNEY’S FEES AND FRIVOLOUS APPEAL

The trial court awarded plaintiff $2,650.00 in attorney’s fees. Plaintiff has answered the appeal and seeks an increase in that amount.

LSA-R.S. 38:2246 provides:

“§ 2246. Attorney’s fees
After amicable demand for payment has been made on the principal and surety and thirty days has elapsed without payment being made, any claimant recovering the full amount of his recorded or sworn claim whether by concursus proceeding or separate suit, shall be allowed ten percent attorney’s fees which shall be taxed in the judgment on the amount recovered.”

It is well established in our jurisprudence that where any claimant recovers the full amount of his recorded or sworn claim under LSA-R.S. 38:2246, he is entitled to attorney’s fees as penalties, but where the claim is debatable and, as in this case, not fully recoverable, the attorney’s fees may not be imposed upon the other party. R. J. Ducote Contractors, Inc. v. L. H. Bossier, Inc., 192 So.2d 179 (La.App. 1 Cir. 1966); Louisiana Highway Commission v. McCain, supra; Normand Company, Inc. v. Abraham, 176 So.2d 178 (La.App. 4 Cir. 1965); Long Bell Lumber Company v. S. D. Carr Construction Company, supra; Goldberg v. Banta Brothers, 183 La. 10, 162 So. 786 (1935).

We also deny plaintiff’s claim for frivolous appeal.

For the above and foregoing reasons, the trial court judgment is affirmed in part and amended in part to reduce the amount awarded plaintiff from $7,934.75 to $6,841.75, and to deny attorney’s fees to plaintiff.

Costs of this appeal are assessed three-fourths (%) to Western Casualty & Surety Company and one-fourth (14) to Ville Platte Concrete Service, Inc.

AFFIRMED IN PART, AMENDED IN PART.

      . No judgment was rendered by the trial court with respect to B.J. Gauthier, Inc., B.J. Gauthier, or Deborah Gauthier as it was impossible to make service of process on these defendants and third party defendants.

      . The trial court made no specific finding with respect to the existence of a contract of sale on open account between plaintiff and Western. We note that, had the trial court made such a finding, our review of the record establishes that it would have been clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

      . “Art. 2164. Scope of appeal and action to be taken; costs
      The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal. The court may award damages for frivolous appeal; and may tax the costs of the lower or appellate court, or any part thereof, against any party to the suit, as in its judgment may be considered equitable.”

      . The source provision of LSA-R.S. 38:2216(A) is the former LSA-R.S. 38:2213. There is no substantive difference between the two provisions.

      . The controversy between Western and the Police Jury is now being thrashed out in Federal Court in Opelousas, Louisiana.

      . We note that in Slagle-Johnson Lumber Company, Inc. v. Landis Construction Co., Inc., 379 So.2d 479 (La.1980), the Louisiana Supreme Court overruled H. R. Hayes Lumber Co. v. McConnell, 176 La. 431, 146 So. 14 (1932) and held that the “Public Works Act” clearly provided a privilege to all materialmen who furnish materials consumed in the construction of public works, regardless of whether the materials are physically incorporated in the permanent construction. We also note that in Construction Materials, Inc. v. American Fidelity Fire Insurance Co., 388 So.2d 365 (La.1980), the Louisiana Supreme Court overruled Long Bell Lumber Co. v. S. D. Carr Construction Co., 172 La. 182, 133 So. 438 (La.1931) insofar as it conflicted with LSA-R.S. 38:2247 and held that the “Public Works Act” does not prohibit a contractor’s surety from voluntarily contracting to pay the claims of unpaid workmen or suppliers who are otherwise unprotected by the act.

      . Invoice # 6740 dated Feb. 27, 1978 shows that plaintiff charged the general contractor $220 for 8 hours rental of a backhoe and operator. Invoice # 6873 dated March 9, 1978 shows that plaintiff charged the general contractor $75 for 3 hours rental of a backhoe and operator. Finally, Invoice # 7062 dated March 31, 1978 shows that plaintiff charged the general contractor $600 for 24 hours rental of a backhoe and operator; $10 for use of a dump truck; $150 for 12 hours rental of a tractor and $38 sales tax on these items. These amounts total $1,093.00.