author: SCHOTT, Judge.

text:
    FIRST METROPOLITAN BANK v. Peter A. PLAIA et al.
    No. 10914.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 13, 1980.
    Rehearing Denied June 20, 1980.
    Writs Granted July 7, 1980.

      A. Morgan Brian, Jr., Brian, Simon, Pera-gine, Smith & Redfearn, New Orleans, for defendants-appellees, Exchange Oil & Gas Corp. and Hibernia National Bank.
    Harry A. Rosenberg, Phelps, Dunbar, Marks, Claverie & Sims, New Orleans, for defendants-appellees, Howard, Weil, La-bouisse, Fredricks, Inc.
    Marian Mayer Berkett, Deutsch, Kerri-gan & Stiles, New Orleans, for defendant-appellee, Hycel, Inc.
    Bruce A. North, Molony, Nolan, North, Riess & Hall, New Orleans, for plaintiff-appellant.
    Before SAMUEL, SCHOTT and HOOD, Assigned, JJ.

       Due to the death of Judge HOOD prior to rendition this opinion is rendered unanimously by SAMUEL and SCHOTT, JJ.

   SCHOTT, Judge.

This is a suit for damages incurred by First Metropolitan Bank in connection with certificates of stock in Hycel, Inc. and Exchange Oil & Gas Corporation. Plaintiff had taken the stock in pledge from Peter A. Plaia to secure a loan. When Plaia defaulted plaintiff delivered the certificates to its broker, Howard, Weil, Labouisse, Fredricks, Inc. (hereafter “Howard”) with instructions to sell the stock for plaintiff’s account. But when Howard sold the stock and delivered the certificates for transfer to Exchange’s transfer agent Hibernia National Bank of New Orleans (hereafter “Hibernia”), and Hycel’s transfer agent, First National Bank of Dallas (hereafter “First”), these agents refused to transfer the stock because “stop transfer” orders were in effect as to the pledged certificates.

Made defendants were Plaia, Hycel, First, Exchange, Hibernia and Howard. Plaintiff took a default judgment against Plaia and its suit against First was dismissed on an exception to the jurisdiction. Neither of these judgments is on appeal. Plaintiff has appealed from the judgment dismissing its suit against Hycel, Hibernia, Exchange and Howard.

The procedural posture of the case is complicated by the fact that the judgment on appeal, dismissing plaintiff’s suit, expressly did so on exceptions of no cause of action or, alternatively, on motions for judgment on the pleadings in accordance with LSA C.C.P. Art. 965 or for summary judgment pursuant to C.C.P. Art. 966. However, in this court appellees have defended the judgment on the contention that plaintiff as a pledgee, unlike an owner, had no legal right to demand transfer of the stock certificates regardless of the terms of the pledge agreement. This constitutes the principal issue before us.

In passing on the exception of no cause of action, we consider only the well pleaded allegations of plaintiff’s petition which are as follows:

Plaintiff was the holder of Plaia’s $11,000 demand note dated August 26, 1975, secured by a pledge of various securities including those of Exchange and Hycel. (A copy of the note and pledge agreement was annexed to and made part of the petition) After its demand for payment went unheeded plaintiff delivered the certificates to Howard with instructions to sell them. The certificates were accompanied by separate powers of attorney endorsed in blank by Plaia. Howard sold all of the securities for plaintiff’s account and delivered the Exchange and Hycel certificates and powers to Hibernia and First to make transfers of ownership. However, Hibernia and First refused to transfer the shares because stop transfer orders as to Plaia’s certificates were in effect. These orders had been issued because Plaia had previously reported the certificates as lost and had formally requested issuance of duplicate certificates. At that time Plaia and First, as Hycel’s agent, had obtained a lost instrument bond providing for indemnification in favor of First for all loss which might be incurred from the issuance of the duplicate Hycel certificates, and for the assumption of “all liabilities of Plaia in the premises.” Plaia and Hibernia had also obtained a lost instrument bond providing for indemnification in favor of Hibernia for any loss which might be incurred from the issuance of the duplicate Exchange certificates. Upon notice that Hibernia and First refused to transfer the stock, Howard without plaintiff’s authority and for the purpose of covering its short position in these securities, bought back stock of Hycel and Exchange, and charged the cost of these trades in the amount of $12,388.50 to plaintiff’s account.

In a supplemental and amending petition plaintiff further alleged: In 1970 Howard as Plaia’s broker had assisted him in obtaining duplicate Hycel and Exchange certificates on the basis that the originals were lost. When the originals were presented by plaintiff to Howard it was charged with the knowledge that the duplicates were fraudulent and it failed to disclose these facts to plaintiff. However, Howard did alert the transfer agents that these original certificates were “faulty.” Thus, Howard breached its duty to plaintiff as a broker and a fiduciary. Howard conspired with the other defendants to deprive plaintiff of the proceeds from the sale of the stock, to refuse to transfer the stock and/or to return the certificates to plaintiff. Howard committed a wrongful conversion of the certificates by its conduct. Furthermore, Howard was required to complete the transfer in accordance with LSA R.S. 12:621 et seq. and failed to comply therewith. Finally, by Howard’s previous participation with Plaia in the obtaining of duplicate certificates it is estopped from refusing to transfer the originals. .

In contending that it stated a cause of action with these allegations, plaintiff first directs our attention to the following language of the pledge agreement signed by Plaia:

“Should this note not be paid at maturity . First Metropolitan Bank . is hereby authorized to sell the pledged securities . . . without demand, notice to redeem, or notice of the time, place or manner of sale, and without recourse to Judicial Proceedings, at public or private sale, or on any Exchange, at the option of First Metropolitan Bank and is hereby irrevocably authorized to transfer any shares of stock, or other securities, on the books of the company issuing same, to purchase under such public or private sale. First Metropolitan Bank . . . shall have the right to purchase any or all of the pledged securities at such sale, free from any right of redemption on the part of any party hereto, which right is hereby waived and released, and all parties herein shall remain liable for deficiency remaining, with legal interest and all costs. All parties hereto severally consent and agree that the securities or property hereby pledged may be exchanged or surrendered from time to time without notice to, or assent from any party hereto and without in any manner releasing or altering their obligations hereunder. All parties hereto do hereby further irrevocably authorize and empower First Metropolitan Bank, or the holder of this note, at any time to collect, and appropriate and apply to the payment and extinguishment hereof, the interest, dividends or other income accruing and payable on any of the securities or property pledged to secure the payment hereof, and to facilitate such collection, all parties hereto agree that any of the said property may be transferred, at First Metropolitan Bank, or the holder’s option, to the name of the said First Metropolitan Bank, or said holder, or nominee on the books of the company issuing same . . . ”

Plaintiff then argues that this quoted language brings the case within the ambit of LSA C.C. Art. 3165, which provides as follows:

“The creditor cannot, in case of failure of payment, dispose of the pledge; but when there have been pledges of stock, bonds or other property, for the payment of any debt or obligation, it shall be necessary before such stocks, bonds or other property so pledged shall be sold for the payment of the debt, for which such pledge was made, that the holder of such pledge be compelled to obtain a judgment in the ordinary course of law, and the same formalities in all respects shall be observed in the sale of property so pledged as in ordinary cases; but in all pledges of movable property, or rights, or credits, stocks, bonds or other movable property, it shall be lawful for the pledger to authorize the sale or other disposition of the property pledged, in such manner as may be agreed upon by the parties without the intervention of courts of justice; provided, that all existing pledges shall remain in force and be subject to the provisions of this act.” (Emphasis ours)

Hycel, Exchange and Hibernia all seem to concede that Article 3165 permits the pledgee to sell stock extra-judicially at private sale, but they contend that the article does not confer on the pledgee the element of ownership enabling it to require a transfer of the stock on the books of the corporation involved. They rely on a number of cases to support this proposition, including Alcolea v. Smith, 150 La. 482, 90 So. 769 (1922), Steiner v. Zammit, 279 So.2d 728 (La.App. 1st Cir. 1973), Emile M. Babst Co., Inc. v. Commercial Enterprises, Inc., 274 So.2d 742 (La.App. 4th Cir. 1973). The Aleóle a case in inapposite. It involves a situation where the pledgee of diamonds apparently sought to appropriate them to himself under circumstances where his absence from his office had made it impossible for plaintiff to redeem the diamonds before the note for which the diamonds were pledged had become due. The court waxed eloquently over the elimination from the statute of language somewhat ancient which had prevented a creditor from appropriating a pledge to himself prior to the amendment of C.C. Art. 3165 in 1972, but left no doubt as to the right of a pledgee to sell the pledged object extra-judicially if that was agreed upon by the parties.

In the Steiner case, the court held that a transfer of stock to the pledgee’s name did not effect a change of ownership of the stock and stated:

“[U]nder the settled law of this state, the pledgee has no authority to dispose of or declare himself to be the owner of the object in pledge absent the express agreement of the pledgor.”

In the instant case there is such an express agreement. In the Babst case this court refused to order the defendant corporation to transfer stock to the name of a pledgee but that case does not disclose the existence of any agreement which might have brought the case within the stated exception of Art. 3165. Furthermore, the two cases which the court in Babst relied on are easily distinguished from the instant case. In Chappuis v. Spencer, 167 La. 527, 119 So. 697 (1929), there was simply an irrevocable power of attorney from the debtor held by the pledgee of the stock. There was no specific agreement authorizing the pledgee to sell as here. The same is true of D’Amico v. Cannizaro, 256 La. 801, 239 So.2d 339 (1970) which has the added distinction that the pledgee himself was insisting that he was not the owner as against an endorser who took the position that the pledgee’s completing an assignment separate from certificate naming himself as assignee caused him to become the owner.

We are confronted here with a pledge agreement in which Plaia authorized plaintiff to sell his stock upon default. This was clearly authorized by Art. 3165. The right to sell would have little value if not coupled with the right to have the stock transferred. We are unable to see what interest Hycel and Exchange would have under ordinary circumstances to decline to make a transfer when presented with the stock certificates and duly executed stock powers. As already discussed, their position on this point is not supported by the jurisprudence on which they rely.

Having concluded that plaintiff as pledgee is not precluded as a matter of law from bringing its action we next consider whether it would be entitled to recover damages if its allegations are true. The thrust of these allegations is that Exchange, Hibernia and Hycel caused duplicate certificates to enter the marketplace protecting themselves against loss by requiring Plaia to post lost instrument bonds, but leaving plaintiff unprotected and ultimately victimized even though it was the holder of the original certificates.

When Plaia reported the certificates as lost and requested the duplicates, the defendant corporations chose to grant that request rather than to require Plaia to bring suit under LSA R.S. 12:640. This decision did not relieve them of the duty the statute imposed had they required Plaia to proceed judicially, namely,

“The giving of bond ... to protect the corporation or any person injured by the issue of the new certificate from any liability or expense, which it or they may incur by reason of the original certificate remaining outstanding.”

Had defendants insisted that Plaia institute proceedings under this statute the burden would have been on Plaia to produce “satisfactory proof” of the loss of the certificates in the first instance, and, had he succeeded, the bond would have been posted to protect those in plaintiff’s position. Plaintiff as a member of the public whom the statute is designed to protect cannot be deprived of that protection because defendants unilaterally and voluntarily cooperated with Plaia.

As to Howard, while it may be that no cause of action was originally stated on the basis of its failure to achieve a transfer of the certificates, in the supplemental and amending petition allegations are made which can reasonably be construed to state that Howard was derelict in its duty as agent of plaintiff in that it accepted the stock certificates for transfer with the knowledge that the certificates were tainted with some sort of irregularity.

Having concluded that plaintiff’s petition as amended states a cause of action against the defendants, we must also consider the judgment as one which granted a judgment on the pleadings or as a summary judgment. Art. 965 provides as follows:

“Any party may move for judgment on the pleadings after the answer is filed, or if an incidental demand has been instituted after the answer thereto has been filed, but within such time as not to delay the trial. For the purposes of this motion, all allegations of fact in mover’s pleadings not denied by the adverse party or by effect of law, and all allegations of fact in the adverse party’s pleadings shall be considered true.”

It seems obvious that the concluding sentence of this article is referring to the plaintiff in speaking of “mover’s pleadings” and the defendant in speaking of “the adverse party’s pleadings” and, therefore, is inapplicable to the instant case. However, in any event, since the pertinent factual allegations of the petition were denied by defendants there is no basis for judgment on the pleadings. Thomas v. Allstate Ins. Co., 367 So.2d 1300 (La.App. 4th Cir. 1979). Some difficulty arises from the last clause of C.C.P. Art. 965 providing that “all allegations of fact in the adverse party’s pleadings shall be considered true” considering the allegations of Exchange and Hibernia in answer that plaintiff had knowledge that the stock certificates were stricken with some infirmity before it delivered the certificates to Howard for sale. However, we do not interpret Art. 965 to mean that these allegations must be considered true because plaintiff did not deny them. Having already alleged in its petition that it had no knowledge of the defect in the original certificates, defendants’ answer alleging that plaintiff was aware of the defects produces a conflict in the pleadings which preclude a motion for judgment on the pleadings. No further pleadings on plaintiff’s part were required for it to deny defendants’ allegations under these circumstances. C.C.P. Art. 852. As to Hycel, it denied plaintiff’s allegations and charged plaintiff with constructive knowledge of the defects in the certificates. The same reasoning as previously discussed precludes Hycel as well as Howard from obtaining a judgment on the pleadings against plaintiff.

There is likewise no support in the record for a motion for summary judgment against plaintiff. Not only were genuine issues of material fact raised in the pleadings which were already discussed, but the deposition of one of plaintiff’s officers contradicts the allegation of Hibernia and Exchange that plaintiff had knowledge of the defects in the certificates before it delivered them to Howard for sale. This deposition discloses that this is a seriously contested issue in the case with reference by defendants’ attorneys to documents and statements from various witnesses which presumably support their position as opposed to this plaintiff’s officer who flatly contradicts their assertion on the point. We have concluded that defendants were not entitled to a summary judgment under C.C.P. Art. 966.

Accordingly, the judgment appealed from is reversed and set aside and there is judgment in favor of plaintiff, First Metropolitan Bank, and against defendants, Hycel, Inc., Howard, Weil, Labouisse, Fredricks, Inc., Exchange Oil & Gas Corporation and Hibernia National Bank of New Orleans, overruling their exceptions of no cause of action and denying their motions for judgment on the pleadings or for summary judgment. The case is remanded to the district court for further proceedings. All costs of this appeal are taxed against defendants. The other costs will await the outcome of the case.

REVERSED AND REMANDED.

      . We do not suggest that Howard can be held liable for the value of the stock represented by the certificates which it could not sell considering that this resulted from the stop transfer order and was beyond Howard’s control. However, under plaintiffs pleadings Howard may possibly be liable for other damages.


source: Caselaw Access Project

license: Public Domain

text:
    Lloyd ARMSTRONG v. Louise Thompson ARMSTRONG Louise Thompson ARMSTRONG v. Lloyd ARMSTRONG.
    Nos. 11110, 11111.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 13, 1980.
    Leon C. Vial, III, Hahnville, for plaintiff-appellant.
    Paul L. Billingsley, Luling, for defendant-appellee.
    Before GULOTTA, SCHOTT and CHE-HARDY, JJ.
   SCHOTT, Judge.

The husband has appealed from a consent judgment in favor of his wife for alimony pendente lite and child support in the amount of $600 per month. In his brief to this court he contends “that he gave his attorney no such authority” to enter into the consent judgment and he specifies error in the trial court’s awarding a consent judgment without his consent. He is represented in this court by a lawyer other than the one who represented him in the trial court.

The consent judgment which was signed on September 13,1979, recites that the rule came to be heard on June 6 with appellant represented by his previous attorney. That attorney filed a motion withdrawing as counsel of record on June 15, and an order to that effect was signed on June 18. Present counsel took the appeal on September 18. There was no testimony at the trial of the rule.

An appeal cannot be taken by a party who confessed judgment in the trial court. LSA C.C.P. Art. 2085. In Martin v. Holzer Sheet Metal Works, Inc., La., 376 So.2d 500, the court held that a confession of judgment will preclude an appeal if it consists of an admission by a party in the trial court of the validity of his opponent’s claim in such a way as to leave no issue to be tried. The court further held that an appeal is subject to dismissal where appellant’s attorney clearly and unequivocally agreed in open court to the entire judgment rendered against it. The only issue before the trial court in this case was the amount of alimony and child support to be awarded. By his consent to that amount through his attorney appellant forfeited his right to appeal from the judgment.

Additionally, appellant’s argument is based on statements of his present counsel in brief which are not part of the record on appeal. In the meantime, appellee’s counsel states in brief that appellant was present with his former attorney during conferences with appellee’s counsel and that appellant was present when the stipulation of consent was entered. The Court of Appeal is not the place for a resolution of such a conflict. Appellant filed no rule in the trial court to show cause why the judgment should not have been recalled, no application for new trial and no action of nullity. In short, there is no evidence to show that the judgment consented to was not authorized by appellant. Accordingly, the judgment is affirmed.

AFFIRMED.

      . The petition for appeal was filed within the delay for applying for new trial.


text:
    Betty OSBORNE v. Gerald J. CALLEGAN and Allstate Insurance Company.
    No. 11074.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 13, 1980.
    Michael I. Rodriguez, Birdsall, Alvarez & Rodriguez, New Orleans, for plaintiff-appellant.
    E. Kelleher Simon, Murphy & Simon, New Orleans, for defendants-appellees.
    Before GULOTTA, SCHOTT and CHE-HARDY, JJ.
   SCHOTT, Judge.

Plaintiff Betty Osborne has appealed from a dismissal of her damage suit against Gerald J. Callegan on a motion for summary judgment and against Vernell Callegan and Allstate Insurance Company on an exception of prescription. The principal issues involve the validity of the summary judgment and whether prescription was interrupted against Allstate as the insurer of Vernell Callegan by virtue of the filing of a suit during the prescriptive period against an incorrect defendant, Gerald Callegan.

This case involves an automobile accident which occurred on January 21, 1975. Exactly one year later plaintiff filed suit against Gerald J. Callegan and his alleged liability insurer, Allstate, on allegations that Callegan was the owner and operator of the offending vehicle. In January, 1977, plaintiff for the first time brought suit against Vernell Callegan, alleging that she was the owner and operator of the offending vehicle acting in the course and scope of Gerald’s employment or in the capacity of Gerald’s agent. Plaintiff further alleged that Allstate was the liability insurer of Vernell Callegan.

Gerald Callegan filed a motion for summary judgment supported by affidavits of himself and Vernell Callegan. These affidavits established that Gerald and Vernell were judicially separated by a judgment of a district court in Jefferson Parish on June 14, 1974, and from the time of their judicial separation he turned over the exclusive possession and control of the vehicle involved in the subject accident to Vernell. He was not operating the vehicle on January 25, 1975, and was not a passenger in the vehicle. The two have remained separated culminating with a judgment of divorce on February 11, 1976, and at the time of the accident Vernell was not employed by him or acting as his agent or on a mission for him. Plaintiff filed no affidavits, depositions or interrogatories in response to the motion.

In this court, plaintiff contends that her petition and supplemental and amending petition with their allegations that Vernell was operating the automobile as an employee or agent of Gerald raised an issue of material fact as opposed to the affidavits so that summary judgment was not appropriate under LSA-C.C.P. Art. 966. However, Art. 967 disposes of this argument:

“ . . . The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or by further affidavits.
* * * * * *
When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him.”

The affidavits clearly establish that these people were judicially separated six months before this accident so that there was no longer a community existing between them. C.C. Art. 155. They both agree that the automobile was in the exclusive possession and control of the separated wife and that she was operating the vehicle on the date of the accident. Clearly, the summary judgment in favor of Callegan was proper, and the same will be affirmed.

As to the judgment dismissing plaintiff’s suit against Vernell Callegan and Allstate Insurance Company, the summary judgment disposed of the possibility that Vernell and Gerald were solidary obligors. That being so, the filing of the timely suit against Gerald did not serve to interrupt prescription against Vernell. This issue does not seem to be seriously disputed but plaintiff does contend that the filing of the suit against Gerald and his alleged liability insurer Allstate served to interrupt prescription against Allstate in its capacity as the insurer of Vernell.

We are unable to distinguish this case from Trahan v. Liberty Mutual Insurance Company, 314 So.2d 350 (La.1975) in which the court held that the timely filing of the suit against certain executive officers and their insurer, Liberty Mutual, did not serve to interrupt prescription against Liberty Mutual as the insurer under the same policy of other executive officers where the first suit was tried to judgment dismissing plaintiff’s suit before the second suit was filed. Plaintiff contends that the cases are distinguishable in that Trahan’s first suit had already proceeded to judgment before the second suit was filed against Liberty Mutual as the insurer of the second set of executive officers, whereas in the instant case the suit against Gerald and Allstate was pending at the time the suit against Vernell and Allstate was filed. However, this is a distinction without a difference. Trahan concluded:

“Liberty Mutual and INA were defendants in the first suit only as insurers of the six named executive officers and are defendants in the instant suit only as insurers of Chrzanowski. Article 2097 being applicable only between solidary debtors, there must be a solidary obligation to plaintiff of a defendant of the first suit and a defendant of the second suit as to the claim asserted in the first suit. Stated another way, there must be a solidary obligation to plaintiff of one or more of the six named executive officers (and, as a consequence, their insurers) and Chrzanowski, as in this case the insurers are liable only in their capacities as insurers of their respective insureds. The judgment in the first suit absolving the six named executive officers (and, as a result, their insurers) means that those executive officers (and their insurers, in that capacity) cannot be solidary debtors with Chrzanowski (and accordingly his insurers in that capacity) as they are not liable to plaintiff on the claim asserted in the first suit.”

In the same way the judgment absolving Gerald means that Allstate as Gerald’s insurer cannot be a solidary debtor with Ver-nell and Allstate as her insurer, as they were not joined as defendants in the first suit.

Accordingly, the judgments appealed from are affirmed.

AFFIRMED.


text:
    Eugene GILES, Jr. v. HUMBLE OIL & REFINING COMPANY et al.
    No. 11078.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 13, 1980.

      Richard A. Chopin, William B. Matthews, Jr. and John W. Tavormina, New Orleans, for defendant-appellant.
    Thomas J. Toranto, Jr., New Orleans, for plaintiff-appellee.
    GULOTTA, SCHOTT and CHEHARDY, JJ.
   SCHOTT, Judge.

Defendant Exxon Corporation has appealed from a judgment for personal injuries sustained by plaintiff in a fall as he walked across Exxon’s property. The issue is whether the facts of the case give rise to any liability on Exxon under LSA C.C. Art. 2315 as interpreted in the jurisprudence.

The facts are undisputed. Plaintiff and his companion got off a bus on the southeast corner of Read and Lake Forest Boulevards in the City of New Orleans. They crossed to the west side of Read Boulevard and then to the north side of Lake Forest Boulevard bound for the Lake Forest Plaza Shopping Center. Located on the northwest corner of the intersection was a large empty lot of ground owned by Exxon, which plaintiff and his companion began to walk across diagonally toward the shopping center. There were no sidewalks around the perimeter of the property nor was there any path across the property. As plaintiff walked through the grass, which was four to ten inches high, he tripped over a survey- or’s stake protruding below the grass three to four inches above the ground and having a circumference about the size of plaintiff’s thumb. Plaintiff broke his right femur in the fall and his recovery was complicated by his condition as a sickle cell anemia victim with a history of a previous hip injury just a few months prior to this accident sued on in this case.

The law governing the liability of a landowner to a plaintiff injured as a result of a hazardous condition on the property has been expounded in Shelton v. Aetna Casualty & Surety Company, 334 So.2d 406 (La.1976) and Cates v. Bouregard Electric Cooperative, Inc., 328 So.2d 367 (La.1976). In the Shelton case the court employed and discussed in detail the duty-risk approach for determining whether liability exists in a given case. Under this approach the first question is whether the alleged wrongful condition was a cause in fact of the resulting harm. While this first test was met in the instant case this finding does not establish liability, since the next step is to determine whether the landowner breached a legal duty imposed to protect against the particular risk involved:

“In making this determination, the following inquiries must be made: (1) What, if any, duty was owed by the landowner to the plaintiff? (2) Was there a breach of this duty? (3) Was the risk, and harm caused, within the scope of protection afforded by the duty breached?”

In the earlier Cates case repeated in Shelton, the court repudiated the traditional classifications of invitee-licensee-trespasser as “little help in applying C. C. 2315,” but held that these classifications may have some bearing on the question of liability which ultimately depends upon whether the landowner owed the plaintiff a duty to discover any unreasonably dangerous conditions on the premises and to either correct the condition or warn plaintiff of its existence. In the application of this test we have concluded that there is no liability on defendant in this case.

Although plaintiff testified that he saw some people coming across the lot from the opposite direction the absence of a path and the presence of the grass indicates that it was not a route that was regularly or usually taken by the public. The grass on the lot was not unusually high for the New Orleans area in July when this accident occurred and the little iron stake was barely protruding above the level of the ground. To impose a duty on Exxon to discover such a tiny obstruction on this large lot of ground would be unreasonable and would impose a higher duty than the one expressed as follows in the Shelton case:

“ . . . The duty of a landowner is not to insure against the possibility of an accident on his premises, but rather to act reasonably in view of the probability of injury to others. Thus the landowner is not liable for an injury resulting from a condition which should have been observed by an individual in the exercise of reasonable care or which was as obvious to a visitor as to the landowner.”

Plaintiff relies on Lecompte v. State, Dept. of Pub. Saf., 343 So.2d 449 (La.App. 3rd Cir. 1977), but that case is distinguishable. The court found that the defendant was liable because a lump of concrete in defendant’s parking lot on which plaintiff tripped and fell was the same color as the surface of the parking lot and was an unreasonably dangerous hazard to the many pedestrians who walked this way. Plaintiff would analogize the steel rod on which plaintiff fell in the instant case to the trap which caused injuries to plaintiffs in Bourg v. Redden, 351 So.2d 1300 (La.App. 1st Cir. 1977). However, in that case the court found that the erection of a cable without flags in an area known to be extensively traveled by motorcyclists was a breach of duty. The distinction is too obvious to warrant discussion.

Accordingly, the judgment appealed from is reversed and set aside, and there is judgment in favor of defendant, Exxon Corporation and against plaintiff Eugene Giles, Jr., dismissing his case at his cost.

REVERSED AND RENDERED.

      . The suit was brought against Humble Oil & Refining Company but it was answered by Exxon with the explanation that Humble had been merged into Exxon prior to the date of the accident sued on. This change raised no issue or dispute between the parties.


author: GARRISON, Judge.

text:
    Richard JUNEAU v. Samuel and Janet HILTON.
    No. 10785.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 13, 1980.

      Alvin Childress, III, New Orleans, for defendant-appellant.
    Jerome P. Halford, New Orleans, for plaintiff-appellee.
    Before GULOTTA, SCHOTT and GARRISON, JJ.
   GARRISON, Judge.

This is a suit on a ninety day promissory note executed by Samuel W. Hilton on April 18, 1978 in connection with a loan transaction with Metairie Bank and Trust Company. Plaintiff Richard Juneau, who was an employee of Hilton at the time of the transaction, alleged that he was merely an accommodation endorser on the note. As Mr. Hilton failed to make payment when the note became due, Metairie Bank and Trust Company made demand on Richard Juneau under his endorser’s liability. Mr. Juneau paid the note and brought this suit against Samuel Hilton and Janet Childress Hilton in order to be made whole as an accommodation endorser, alleging that the loan was a debt of the then existing community between the two co-defendants. Janet Childress Hilton answered alleging that the loan was not a community debt, her answer being based upon the affirmative defense of fraud. She further alleged that at the time the note was executed, Samuel Hilton was living in open concubinage with his paramour, Jacqueline Fields, and that as the loan was merely a means of defrauding the community, it was null and void ab initio. Samuel and Janet Childress Hilton were divorced on July 13, 1978, two days prior to the due date of the ninety day note.

On May 4, 1979 plaintiff moved for summary judgment against Samuel Hilton. Janet Childress Hilton moved to dismiss plaintiff’s motion for summary judgment on the ground that plaintiff and Samuel Hilton were plotting to defraud her. On this day, she filed a motion to continue both rules, representing that her attorney contacted plaintiff’s attorney, who agreed to a continuance. The trial judge on May 21, 1979 ordered that the rules be continued.

However, the motion for summary judgment had been brought by plaintiff’s counsel for trial on May 18 and judgment was rendered on that date against Samuel Hilton for the amount of the note plus interest and attorney’s fees. Janet Childress Hilton and her attorney, relying on the continuance, were not present and had no opportunity to be heard. Her rule to dismiss the motion for summary judgment, though assigned for hearing on May 18, was not considered. Janet Childress appeals the summary judgment which we now reverse and remand.

Summary judgment is unavailable to a party in a case where the community rights of a spouse may be affected. C.C.P. Art. 969. Comment (a) to the article observes that it is designed to prevent collusive judgments in suits involving the rights of married women. This is precisely what Janet Childress Hilton fears and has attempted to protect herself against since her initial entrance into the case. Thus, summary judgment was improperly considered and erroneously granted.

Counsel for plaintiff alleges that the judgment rendered will not prejudice Janet Childress’ rights, citing Loeb v. Loeb, 252 So.2d 516 (La.App. 4th, 1971). Loeb was essentially a claim by the wife’s attorney for payment of a fee by the husband in accordance with a final settlement of the community. Accordingly, we conclude that Loeb is not applicable.

For the foregoing reasons, the judgment of the trial court is reversed and the case is remanded to the district court.

REVERSED AND REMANDED.

      . The record shows that the community of ac-quets and gains was in existence at the time when the note was confected. Apparently, the co-defendants did not obtain a legal separation prior to the divorce decree.


text:
    STATE ex rel. MAPLE AREA RESIDENTS, INC. v. The BOARD OF ZONING ADJUSTMENTS OF the CITY OF NEW ORLEANS, David L. Michel, Milton B. Mary, Jr., and Blaise and Dave’s Inc.
    No. 11038.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 13, 1980.
    Peter J. Cangelosi, New Orleans, for defendants-appellants.
    Alexander C. Cocke, Jr., New Orleans, for plaintiff-appellee.
    Jacob Taranto, III, Deputy City Atty., New Orleans, Salvador Anzelmo, Acting City Atty., for defendant-appellee.
    Before BOUTALL, GARRISON and BARRY, JJ.
   GARRISON, Judge.

This is an appeal from the judgment of the district court granted on December 9, 1977, reversing a decision of the Board of Zoning Adjustment, which had granted a variance, waiving three of the parking spaces required for the operation of an ongoing business. The terms of the variance provided that it would expire on December 31, 1977, the date on which the first lease without option was to expire. From the judgment of the district court, appellants appeal.

As the variance expired twenty-one days after judgment was rendered and there are no new leases at issue, there is no longer a live controversy before this court. Additionally, counsel for defendants-appellants made an admission against interest which is binding upon her clients;

“Regardless of the actions of this Court, the entire controversy will be moot on the first of this year.” Brief on behalf of David L. Michel, Milton B. Mary, Jr., and Blaise and Dave’s, Inc., filed on Oct. 21, 1977.

As there is no justiciable issue properly before this court, this case is dismissed as moot.

APPEAL DISMISSED.


text:
    ORLEANS PARISH SCHOOL BOARD v. PITTMAN CONSTRUCTION COMPANY, INC. and Trinity Universal Insurance Company, et al.
    No. 11234.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 13, 1980.

      Reuter & Reuter, Arthur C. Reuter, Sr., Gerald J. Gallinghouse, New Orleans, for defendants-appellants.
    Sanders, Downing, Kean & Cazedessus, R. Gordon Kean, Jr., Charles S. McCowan, Jr., Baton Rouge, Christovich & Kearney, J. Walter Ward, Jr., New Orleans, for defendants-appellees.
    Before BOUTALL, GARRISON and BARRY, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court, dismissing Pittman Construction Company’s third-party petition for indemnification over and against various architects and their insurers. Pittman Construction Company was the general contractor hired to erect McDonough No. 45 School for the Orleans Parish School Board. The third-party defendants (hereinafter “the architects”) filed exceptions of “pre-emption” under R.S. 9:2772 and prescription under C.C. Articles 2762 and 3545. The trial court maintained the exception of pre-emption, citing this court’s decision in OPSB v. Pittman Construction Company, 372 So.2d 717 (App. 4th, 1979), (hereinafter “Pittman II”). From that judgment, which we now affirm, Pittman Construction Company appeals.

On appeal, Pittman argues that the trial court erred in following the decision of the Fourth Circuit in Pittman II, which the appellant contends is directly opposite to the ruling of the Louisiana Supreme Court in OPSB v. Pittman Construction Company, 261 La. 665, 260 So.2d 661 (1972), (hereinafter “Pittman I.”)

In Pittman I, the general contractor and surety filed an exception of three years prescription under the then effective R.S. 38:2189, a provision of the Public Works Law:

“Any action against the contractor on the contract or on the bond or against the contractor or the surety, or both on the bond furnished by the contractor, all in connection with the construction, alteration, or repair of any public works let by the state or any of its agencies, boards, or sub-division shall prescribe three years from the registry of acceptance of such work or notice of default of the contractor unless otherwise limited in this said chapter.” Added by Acts 1962, No. 15 § 1.

The trial court upheld this exception, which action we affirmed and the Louisiana Supreme Court reversed, overruling the exception and remanding the case.

The School Board argued that C.C. Art. 2762 provided a ten-year warranty of good workmanship on the part of the contractor and that 38:2189, which was enacted six years before the building fell to ruin thus activating C.C. Art. 2762, could not be applied retroactively to divest the Board of this already vested substantive right of warranty or otherwise impair its rights under law and the contract.

The court found that C.C. Art. 2762 created a substantive right of warranty and that the ten year period contained therein was a limit on the time in which the defect must be manifest in order to activate the cause of nrt.inn in 2769.

In contrast, the court found that C.C. Art. 3545 was a prescriptive statute to be applied after the building fell to ruin activating the ten year warranty in 2762:

Art. 3545. “The action against an undertaker or architect, for defect or [of] construction of buildings of brick or stone, is prescribed by ten years.”

The court found that as the building did not fall to ruin until 1968, there was no cause of action until that time when the running of prescription under 3545 also commenced. Although the cause of action did not accrue until 1968, the substantive right of warranty in 2762 vested at the time that the contract was confected in 1960. Thus, the court rightly concluded that the substantive right vested in 1960 could not be affected by the substantive enactment in 1962 of a peremptive statute, 38:2189, under constitutional and legislative guarantees against ex post facto laws or laws impairing the obligations of contracts. U.S. Constitution Art. 1 § 10; La.Const.1921, Art. 4 § 15; C.C. Art. 1945. The court further stated that if R.S. 38:2189 were a statute of prescription, then prescription could not run until the cause of action came into being. The court did not expressly state whether R.S. 38:2189 was peremptive or prescriptive.

In contrast to Pittman I, Pittman II dealt with a third-party petition for indemnification and a totally different statute, R.S. 9:2772. While in Pittman I, the Supreme Court was faced with an already vested substantive right, Pittman II contained no such vested right because prescription does not begin to run on a claim for indemnity until the party seeking indemnification has been cast in judgment. As noted by the Supreme Court in Pittman I, prescription cannot run until the cause of action comes into being. Thus prior to judgment, Pittman Construction Company would only have an unvested inchoate right to indemnification and would only be able to apply for a reservation of that potential right by a third-party petition.

In Pittman II, also acting then as the organ of the court, I relied upon the intervening Louisiana Supreme Court decision of Lott v. Haley, 370 So.2d 521 (1979), wherein it stated:

“Nonetheless, a newly-created statute of limitation or one which shortens existing periods of limitation will not violate the constitutional prohibition against divesting a vested right provided it allows a reasonable time for those affected by the act to assert their rights. Cooper v. Lykes, 218 La. 251, 49 So.2d 3 (1950) State v. Records of Mortgages, 186 La. 661, 173 So. 139 (1937).” At 524

In Pittman II, this court found that provision (G.) of R.S. 9:2772 provided a reasonable time in which Pittman could have asserted its rights:

“(G.) Causes of action which exist prior to July 29, 1964 shall be pre-empted one year from said date or by the applicable pre-emptive period established by this Section, whichever is later.”
* * # * * *
“(C.) If such an injury to the property . occurs during the ninth-year after the date set forth in Sub-section A, an action to recover the damages thereby suffered may be brought within one year after the date of the injury, but in no event more than eleven years after the date set forth in Sub-section A . . . ”
******
“(A.) No action ... to recover on a contract . . . shall be brought . (1) More than ten years after the date of registry in the mortgage office of acceptance of the work by owner

The School Board filed its acceptance on September 14, 1960 and its suit on August 1, 1969, thus under Sections (G), (C), and (A), Pittman had until September 14, 1970 to file its third-party demands. Pittman did not file its third-party demand until June 29, 1973. Thus the Fourth Circuit in Pittman II found that the “pre-emptive” period of R.S. 9:2772 applicable. Consequently, that which defeated the construction company’s claim was not the retroactive application of the statute, but Pittman’s own failure to protect its potential rights under the statute by filing timely. Hence, there exists no conflict between the ruling of the Louisiana Supreme Court in Pittman I and the ruling of the Fourth Circuit in Pittman II.

Turning now to the instant appeal, we note that the facts before us, but for the identities of the parties, are identical to those found in Pittman II. The School Board filed its acceptance on September 14, 1960 and its suit on August 1, 1969. Once again, it is not a retroactive application of the statute which destroys Pittman’s cause of action, but rather Pittman is defeated by its own failure to have filed suit timely.

For the reasons discussed above, the judgment of the trial court is affirmed.

AFFIRMED.

      . Art. 2762. “If a building, which an architect or other workman has undertaken to make by the job, should fail to ruin either in whole or part, on account of the badness of the workmanship, the architect or undertaker shall bear the loss if the building falls to ruin in the course of ten years, if it be a stone or brick building, and of five years if it be built in wood or with frames filled with bricks.”


author: CHEHARDY, Judge.

text:
    Susan L. BROOKS v. Henry L. ROUSSEL, White Fleet Cab Company, Interstate Transportation Corporation, Insurance Company of Florida, New Orleans Public Service Inc. and Henry Williams.
    No. 11043.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 13, 1980.

      Bruce J. Borrello, Metairie, for plaintiff-appellee.
    Floyd F. Greene, New Orleans, for New Orleans Public Service Inc., defendant-appellant.
    Before GULOTTA, SCHOTT and CHE-HARDY, JJ.
   CHEHARDY, Judge.

Plaintiff, Susan L. Brooks, filed suit against Henry L. Roussel; White Fleet Cab Company and its insurers; New Orleans Public Service Inc. (NOPSI); and Henry Williams for damages to her vehicle and personal injuries she received as the result of an automobile accident.

Prior to trial, plaintiff settled her suit with Henry L. Roussel, the taxicab company and their insurers, but reserved her right to proceed against NOPSI and Henry Williams. After a trial on the merits, judgment was rendered in favor of plaintiff in the amount of $12,500 plus costs. The trial court valued Miss Brooks’ damages at $25,-000, but only awarded her one-half of this amount inasmuch as she had settled with a joint tort-feasor. Although the plaintiff’s lawsuit against Henry Williams individually was dismissed, defendants Williams and NOPSI appeal.

On October 9,1977 at approximately 10 p. m., Miss Brooks was driving her 1970 Volkswagen automobile down St. Charles Avenue toward Canal Street. A taxicab driven by defendant Roussel came from her left crossing St. Charles Avenue at Valence Street, and the two vehicles collided.

After the initial impact, both plaintiff’s and Roussel’s vehicles spun around and came to rest diagonally to the streetcar tracks, either partially on or near the neutral ground on St. Charles Avenue, at a place past the Valence Street intersection toward Canal Street. While the parties were still inside their vehicles, the cab again accelerated and there was a second collision involving the plaintiff’s car, the cab and a passing streetcar.

The defendants argue that the initial determination of whether a defendant’s conduct was a cause-in-fact of the accident is a but-for inquiry and cites State Farm, Etc. v. South Cent. Bell Tel., 359 So.2d 1318 (La.App. 4th Cir. 1978). The defense further contends that it must then be determined what duty was imposed and whether the risk created by a breach of that duty was one for which the rule of law was intended to afford protection; and it must then be decided whether defendant breached that duty, citing Pierre v. Allstate Insurance Company, 242 So.2d 821 (La.1970). Defendants conclude that the first accident was the major force of damage, that the second accident could not have been a proximate cause of the plaintiff’s injuries and that, even if the motorman was negligent in passing the wrecked cars without first stopping, his negligence could not have contributed to the second accident, which was caused solely by the sudden acceleration of the cab.

Plaintiff, however, argues that although the driver of a public carrier for hire is held to the highest degree of care only in the duty owed to its passengers, it at least owes an ordinary duty of care to other drivers. Plaintiff further contends that a driver who observes an accident happen within yards of his path has a duty to reduce his speed, get his vehicles under control, and ascertain that his path is clear before attempting to proceed past the accident site, citing Hilburn v. Johnson, 240 So.2d 767 (La.App. 2d Cir. 1970).

The motorman testified he had no instructions to stop for an accident in which he was not involved, so he simply slowed the streetcar from a speed of approximately ten miles an hour to approximately five miles an hour after he saw the accident between the cab and the plaintiff’s car, which happened two- or two-and-one-half streetcar lengths in front of him. He testified that as he was passing the wrecked cars, the cab suddenly accelerated again and ran into the side of the streetcar; however, he stated that at no time did he hit the plaintiff’s Volkswagen nor did that vehicle hit the streetcar.

The motorman’s testimony on this point, however, was directly contradicted by the cab driver and the plaintiff. The cab driver testified that he crossed St. Charles Avenue at Valence Street and that there was a collision between his cab and the plaintiff’s vehicle. After the impact, both cars came to rest on the neutral ground, five or six feet from the streetcar tracks. He further testified that he and the plaintiff were still inside their vehicles when the cab suddenly reaccelerated and pushed the plaintiff’s car into the side of the moving streetcar, this occurring not more than two or three minutes after the vehicles had come to a rest upon the neutral ground.

Plaintiff’s testimony on this point corroborated that of the cab driver, although she estimated the time between the two accidents as “just a few seconds.” She also said that when the cab suddenly reacceler-ated she looked up and watched as she was “squished” between the cab and the moving streetcar.

Although the investigative officer who came to the scene of the accident was not available as a witness at the trial, his report, admitted by joint stipulation of the parties, confirmed the account of the accident given by the cab driver and the plaintiff.

The defense provided two other witnesses; however, one was a passenger in the streetcar who did not actually see the second accident and the other was a neighborhood resident who observed the second impact from a distance of approximately 80 feet away. Both descriptions of the accident were fraught with contradictions and inconsistencies concerning whether or not the streetcar was moving at the time of the second accident, the positions of the vehicles, and other factors.

We feel, therefore, that the trial court judge was correct in concluding that the plaintiff and the cab driver had given the correct account of what happened and in further concluding that there was an absence of any negligence on the part of the plaintiff. Furthermore, where there is evidence before the trier of fact which, upon its reasonable evaluation of credibility furnishes a reasonable factual basis for the trial court’s finding, the appellate court should not disturb that finding in the absence of manifest error. Canter v. Koehring Company, 283 So.2d 716 (La.1973).

We also find, as did the trial court judge, that the passing streetcar was a cause-in-fact of the second accident; the motorman was negligent in attempting to pass the other two cars before the first accident had fully stabilized; and the motorman’s negligence was a proximate cause of the second accident.

We further agree with the trial court judge that although the cab driver alone was negligent in causing the first accident, the second accident was caused by the joint negligence of both the streetcar and the taxicab. Since there is no way of ascertaining which of the plaintiff’s injuries was sustained in each of the accidents, the trial court judge was correct in concluding that both the cab driver and the streetcar operator were negligent joint tort-feasors. Hilburn v. Johnson, supra.

In regard to the quantum of damages awarded to the plaintiff, it was testified to by an attending physician that she suffered multiple lacerations of her face and forehead; a rupture of her lung due to rib fractures, which necessitated the insertion of a chest tube; and a cerebral concussion. Her injuries also required physiotherapy and a one-week hospital stay. Since the accident Miss Brooks has also had headaches and neck paid related to cervical strain, which she testified still continued intermittently at the time of trial, necessitating that she take pain medication. She also has some remaining perceptible scarring to her face.

The plaintiff’s hospital bill was in excess of $1,500, and the physicians’ charges were $165 and $374. The total of the repair estimate to the plaintiff’s car was $1,520.68, with the pre-loss value estimated at $1,000, placing the vehicle beyond economic repair.

In view of the above damages, therefore, we do not consider the trial court’s award of $25,000 as excessive compensation for her injuries. Since plaintiff had settled with one of the joint tort-fea-sors prior to trial, the judgment of $12,500 rendered against New Orleans Public Service Inc. will not be disturbed by this court.

Accordingly, the trial court’s judgment is affirmed in all respects.

AFFIRMED.


text:
    Thomas H. DAVIDSON v. MUNICIPAL YACHT HARBOR.
    No. 11050.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 13, 1980.

      Levy, Marx, Lucas & Rosen, Dwight W. Norton, New Orleans, for plaintiff-appellee.
    Salvador Anzelmo, City Atty., Michael A. Starks, Deputy City Atty., New Orleans, for defendant-appellant.
    Before GULOTTA, SCHOTT and CHE-HARDY, JJ.
   CHEHARDY, Judge.

The Department of Property Management, Municipal Yacht Harbor, appeals from a July 5, 1979 decision of the New Orleans Civil Service Commission reinstating Thomas A. Davidson to his position of assistant manager of the Municipal Yacht Harbor, effective November 8, 1978, and restoring all back pay and other emoluments of his office.

On October 23, 1978, Davidson received a letter from Sidney Perez, administrative analyst for the City of New Orleans, officially notifying him that “the Department of Property Management is eliminating the positions of Yacht Harbor Manager, Assistant from its payroll, effective Wednesday, November 8, 1978.”

The letter further stated: “In effect, this means you will be laid off as of that date. The layoff is in keeping with Rule XII of the Civil Service Rules.” Davidson was also requested to contact a representative of the Civil Service Department for an exit interview.

Under Rule II, Section 4.1(a) of the City Civil Service Rules all regular employees in the classified service can appeal a dismissal to the Civil Service Commission in order to test the reasonableness of such action. Davidson appealed timely, alleging his termination was based on personal animus toward him on the part of his superior Herman J. Estrade, and on the parts of James Prigmore and Jesse Dupart, officials in the Property Management Department.

In the written reasons for its decision, the Civil Service Commission concluded that “the abolition of the appellant’s position was an action taken for the sole purpose of terminating the appellant from his employment with the City and for no other purpose.” The Commission further found that economy was not served by the abolition of this position, nor was it necessary from an economic point to do so, and the efficiency of the facility was not increased by the discharge.

Under Article 10, Section 12 of the Constitution of the State of Louisiana of 1974, the decision of the Civil Service Commission is subject to review on any question of law or fact upon appeal to an appellate court.

In the present case the record reveals that Davidson did not have a good relationship with his supervisor Estrade and had been disciplined previously by the Civil Service Commission for insubordination to Es-trade with a suspension resulting. Davidson also testified he had several rather heated discussions with both Prigmore and Dupart questioning the wisdom of the new policies of his superiors regarding rate increases for “live aboards” at the Yacht Harbor and “slip transfers.”

In defense of the abolishment of the two positions of assistant harbor manager, the City indicated that this was an efficiency move; however, the necessity for a cutback was not demonstrated due to the fact the projected net income of the Municipal Yacht Harbor for 1979 was $607,800, and no studies were produced at the hearing showing the abolition of these salary expenditures was mandated. Prigmore further admitted at the time of the hearing that they did not have enough personnel to run a big 60-acre harbor. Moreover, there was testimony that since Davidson’s layoff, his duties were being performed by others employed at the Yacht Harbor, such as security guards.

In view of the above, the Civil Service Commission concluded the Department of Property Management did not act in good faith in abolishing Davidson’s position but did it simply as a means of getting rid of him. Since the evidence supports this finding of fact by the Commission, this court will not disturb that finding on review.

Rule III, Section 1.1 of the Civil Service Rules states:

“Whenever, in the opinion of the Director, there is necessity for establishing a new class, or revising or abolishing an existing class, in the classification plan, he may anticipate formal action of the Commission by adding the new class or revising or abolishing an existing class. Such action shall be subject to ratification by the Commission at its next regular meeting.” (Emphasis ours.)

To permit the abolition of a position for the sole purpose of terminating the employment of an employee within the system would do violence to the whole concept of Civil Service.

Older cases, such as State v. Board of Com’rs, 149 La. 1095, 90 So. 417 (1922), do indicate that a position cannot be abolished simply for the purpose of terminating an employee in the classified service, and the Civil Service Commission has properly observed that: “To hold otherwise would defeat the entire system.”

We conclude, therefore, that, under the facts presented, it was within the authority of the Civil Service Commission to overrule the action of the Department of Property Management in abolishing the position of assistant harbor manager, and it was equally within its authority to reinstate the plaintiff to this position with all back pay and other emoluments.

Accordingly, the decision of the Civil Service Commission is affirmed in all respects.

AFFIRMED.


text:
    Calvin A. DIAZ, Sr., d/b/a Diaz Cartage Company v. EDWARD LEVY METALS, INC.
    No. 11079.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 13, 1980.

      Bagot & Gniady, Michael H. Bagot and John H. Gniady, New Orleans, for plaintiff-appellant.
    Arthur L. Ballin, Frank C. Dudenhefer, New Orleans, for defendant-appellee.
    Before GULOTTA, SCHOTT and CHE-HARDY, JJ.
   CHEHARDY, Judge.

Calvin A. Diaz, Sr., doing business as Diaz Cartage Company, instituted this action against Edward Levy Metals, Inc., for the balance of $2,727.97 due for trucking service provided defendant during the period of April 17,1976 through April 27,1976 and for damages of $905.50 sustained by one of plaintiff’s trailers.

The trial court dismissed plaintiff’s suit at his cost, without issuing written reasons, and plaintiff appeals.

The plaintiff and the defendant had been doing business on a job-to-job basis since 1969. Although there had never been any written contracts between the two parties, it had been orally agreed that the plaintiff would provide trucks on a basis of $20.70 per hour complete with the drivers and the fuel. It was also agreed the plaintiff would maintain the repairs of the equipment while it was on the job, and in case of a major breakdown, the equipment was to be replaced. Additionally, the plaintiff furnished defendant with spare tires; however, the defendant’s employees were to perform the needed tire changes.

There was a conflict of testimony between witnesses, however, as to whether there was an agreement defendant would not deduct time lost for repairs from the basic hourly rate.

Edward Levy, president of the defendant company, testified he did not ever agree that time lost as a result of changing tires would not be deducted; he was not aware of any of his employees having made such an agreement; and he would never have agreed to something so “unfair.” However, he also said he never did think this would come up because the plaintiff’s tires had, on previous jobs, been in good condition. Levy said, however, that on the job with which this suit is concerned the plaintiff’s tires were in terrible condition, resulting in 168 flats, each requiring an average tire change time of about 20 minutes. In support of his testimony, Levy also produced written documentary evidence in the form of on-the-job records and corroborating testimony of several of his then employees. Although plaintiff insisted he had an agreement with several of defendant’s employees over the years that there would be no deductions for time lost due to tire repairs, he could not remember the names of any of these employees. Diaz admitted the other parts of the agreement had been made with Levy himself.

The defendant was invoiced for a total of $31,377.60, with a credit of $441.37 for diesel fuel. After deducting $2,727.97 for time lost, Levy rendered payment of $28,208.27 to Diaz without first notifying him of these deductions. Diaz then tried to contact Levy but was told he would be out of town for some time on vacation. Plaintiff subsequently deposited the check, complained to Levy about the deductions, and rebilled Levy by invoice for the deducted amount.

With reference to the damage to the plaintiff’s trailer alleged in his reconvention al demand, two of Levy’s employees testified the flatbed of the trailer was already bent when it came into the yard but that it was operational. This fact was brought to Diaz’s attention before work wak started; however, during the job the flatbed cracked and was rendered inoperative.

It is axiomatic that in civil litigation the plaintiff must carry the burden of proof by a preponderance of the evidence. Although the plaintiff testified he had a verbal agreement with several of the defendant’s employees that there were to be no deductions for time lost for tire repairs, the contradictory testimony of the defendant and the nature of the contractual relationship does not support a finding by this court that the trial judge erred in concluding the plaintiff had not proven the existence of such an oral agreement.

In the case of J. H. Jenkins Contractor, Inc. v. City of Denham Springs, 216 So.2d 549 (La.App. 1st Cir. 1968), the court said at pages 554-555:

“* * * Admittedly, who knowingly and voluntarily assents to harsh contractual provisions may not on that account alone be relieved from the effects thereof. LSA-C.C. Articles 1945 and 1963. However, where the issue is the meaning and intent of a contract term, the fact that an informed and experienced person does not usually and customarily bind himself to unjust and unreasonable obligations, is a serious factor that must be considered in determining such an issue. Oil Field Supply & Scrap Material Company v. Gifford Hill & Co., 204 La. 929, 16 So.2d 483.
“In our judgment, plaintiff is also entitled to recovery on the theory of quantum meruit. This remedy, recognized in our courts since 1820, see Gilly v. Henry, 8 Mart. (O.S.) 402, insures enforcement of the obligation to pay the reasonable value of services rendered in the absence of express agreement. See 18 Louisiana Law Review, 209, and authorities therein cited. The rule is expressed as follows in Duggan Machine Co. v. Consolidated Well Servicing Co., La.App., 187 So.2d 124:
‘The doctrine of quasi contract and quantum meruit are found in Articles 1816, 2293 and 2294 of the Louisiana Revised Civil Code and have always been recognized by the courts of this state. Under these doctrines a person can, by his inaction and acceptance of the benefits of another’s labor, obligate himself to pay the reasonable value of another’s labor. In the case at bar when defendant delivered the mud pump, accepted the repairs made by plaintiff, and benefited from these repairs- by putting the equipment in use, defendant became obligated to pay the cost of the repairs. National Crankshaft Company v. Natural Gas Industries, Inc., 246 La. 395, 165 So.2d 1 (1964), and cases cited therein.’ ”

In the absence of an agreement not to allow deductions for loss of time in changing tires, it is reasonable to conclude Levy should be allowed to deduct time lost for tire repairs.

The contract in the present case is one of lease and, therefore, LSA-C.C. arts. 2693-2695 are applicable. In following the reasoning expressed by the Second Circuit in Reed v. Classified Parking System, 324 So.2d 484 (1976), if the present contract had encompassed a specific time period, rather than simply an hourly rate, then the defendant might be obligated to pay the entire amount owed since he remained in possession of the equipment in spite of its defective qualities. However, since this lease specified no total time or lump price but was set up on an hourly basis, it is a more reasonable interpretation that the parties did contemplate or should have contemplated the hourly rate would be due and owing only for the time the trucks could actually be used for their intended purpose.

The court also said in the case of Aetna Insurance Company v. Guidry, 216 So.2d 859, 861 (La.App. 3d Cir. 1968):

“Jurisprudence interpreting this article makes it clear that where the lessee suffers loss, resulting from a defect in the thing leased, he may recover damages from the lessor regardless of the lessor’s ignorance of the defect or latency thereof. * * *”

Since the defendant was being charged by the hour for the trucks and drivers, time spent in changing tires resulted in a loss for which the defendant is entitled to recover damages.

The defendant also argues that if a thing leased ceases to be fit for the purpose for which it was leased or if it is much impeded, the lessee may obtain annulment of the lease. In the case of Truck Equipment Company v. O'Reilly, 142 So.2d 184 (La.App. 4th Cir. 1962), the court concluded that a tractor and trailer were not suited for the purpose for which it was intended and therefore granted the lessee an annulment of the lease, citing LSA-C.C. art. 2699.

The case of Equilease Corporation v. Hill, 290 So.2d 423 (La.App. 4th Cir. 1974), is also applicable. The court, citing LSA-C.C. art. 2695, stated that in every contract of lease there is written by law a warranty that the leased property contains no defects and that it may be subjected to any of the uses for which it is intended. Accordingly, the court concluded the defendant was entitled to reimbursement unless he had effected a valid waiver of warranty. In the present case, no such waiver of warranty existed, therefore, we find the defendant was entitled to reimburesement through the deductions which he made before payment.

Plaintiff’s claim for damages to one of his trailers is not sustained by the proof offered. No witnesses to the alleged accident were produced to prove the damages claimed. The defendant, however, produced two former employees who testified that the trailer was already damaged when delivered for use and later became totally inoperative.

Without a showing of some fault on the lessee’s part, lessee is not liable for injuries and losses sustained by the lessor’s property or for wear and tear and unavoidable accidents (LSA-C.C. arts. 2719 and 2720).

For the reasons expressed herein we affirm the judgment of the trial court.

AFFIRMED.

SCHOTT, J., concurs in the result.


author: BARRY, Judge.

text:
    Johnny CALECAS d/b/a Metairie Plumbing Co. and Edward N. Fraiche v. Harry PRIEUR.
    No. 11027.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 13, 1980.

      Francipane, Regan & St. Peé, Richard T. Regan, Metairie, for plaintiffs-appellees.
    Satterlee, Mestayer & Freeman, Henry F. Mestayer, New Orleans, for defendant-appellant.
    Before BOUTALL, GARRISON and BARRY, JJ.
   BARRY, Judge.

Appellee, Calecas, entered into two contracts with appellant to install plumbing in four properties. Calecas associated appellee Fraiche to work with him.

Work began March 1, 1973. The contracts totaled $16,700.00 with extras and changes in the amount of $910.00. Four payments were made totalling $11,132.00 and appellant received $652.00 in credit leaving an unpaid balance of $5,826.00.

Appellees contend work was substantially completed about December 1, 1973. Written demand was made for the unpaid balance, to no avail, and appellees filed suit July 24, 1974. Appellant reconvened and urged an allowance for repairs necessitated by faulty workmanship, plus credit for lost rents and interest expense which accrued because of the alleged tardy completion of the contracts. After a three day trial the District Court entered judgment in favor of appellees for $5,826.00 plus interest and costs. A new trial was denied and appellant filed this suspensive appeal.

Basically, this lawsuit involves questions of fact and credibility of witnesses. Appellant presents two issues on appeal:

Did appellees perform in a workmanlike manner?
Should an allowance be given to correct the alleged faulty work?

The trial judge is in the best position to evaluate litigants and witnesses, and his decision will not be disturbed without manifest error. Moran v. Robinson Corp., 372 So.2d 758 (La.App. 4th Cir., 1979). Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

The plumbing work required approximately six months to substantially complete a single residence and three duplexes (a total of seven units). The testimony established that delays were encountered because of other sub-contractors, weather, a shortage of fixtures, and changes and extras requested by appellant.

We agree with the trial judge that the record is void of evidence that appellees provided unworkmanlike services. There is no convincing factual proof that there was a need to correct defects caused by the appellees. Appellant and his son testified as to some work they personally performed, but their testimony lacked sufficient proof to show time spent for the corrective work. The claim for lost rental income because of delayed completion of the work, likewise, was not proven. A court is not justified in fixing damages in absence of definite proof. Campbell v. Lelong, 327 So.2d 533 (La. App.2nd Cir., 1976). The trial judge rightly concluded appellant-plaintiff in reconvention did not prove his allegations as to poor workmanship by a preponderance of evidence.

Appellant failed to provide specifics to claim an offset for materials used to correct appellees’ work. Construction work normally requires follow-up corrections which were properly tended to here by use of the standard “punch list”. Details and specificity of claimed losses must be shown. Campbell, supra. See also: Recherche, Inc. v. Jewelry Jungle, Inc., 377 So.2d 1329 (La.App.1st Cir., 1979); Pelican Printing Company v. Pecot, 216 So.2d 153 (La.App.4th Cir., 1968). Absent any corroborating evidence, the claim for an allowance on material expenses must fall.

There is no finding of negligence hence no necessity to consider appellant’s reliance on res ipsa loquitur.

The factual conclusions of the District Court are reasonable and logical. We find nothing in the record to disturb the court’s appraisal of the litigants and witnesses.

Accordingly, the judgment of the lower court is affirmed, all costs to be paid by appellant.

AFFIRMED.

      . Some of the changes were substantial, suchas a gas to electric kitchen and additional bathroom facilities.


text:
    Vicki Smith MOORMAN and Kenneth Joseph Moorman, Individually and as Administrator of the Estate of the minor, Tiffany Moorman v. STATE of Louisiana, Thru DEPARTMENT OF HIGHWAYS.
    No. 11067.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 13, 1980.

      Robert L. Lobrano, Belle Chasse, for plaintiffs-appellants.
    Woodrow W. Wyatt, Baton Rouge, for defendant-appellee.
    Before BOUTALL, GARRISON and BARRY, JJ.
   BARRY, Judge.

Mr. and Mrs. Kenneth Moorman claim damages primarily for personal injuries sustained by Mrs. Moorman and her three year old daughter. The defendant is the State of Louisiana, through the Department of Highways, for allegedly failing to maintain and keep in repair Louisiana Highway 39 near Wills Point. The trial court dismissed plaintiffs’ lawsuit but unfortunately did not provide reasons for judgment.

An accident occurred when Mrs. Moor-man allegedly lost control of her vehicle after hitting an unrepaired portion of the roadway. As a result her vehicle crossed over into the opposite traffic lane and struck an oncoming vehicle.

The defendant, Department of Highways, did not contest the existence of the damaged roadway, but urged it did not have actual or constructive notice of the defect in sufficient time to effect repairs.

The record is void that the defendant received actual notification of the road condition. Therefore, plaintiffs have the burden to show that defendant had constructive notice plus sufficient time to make repairs prior to the accident.

Two police officers briefly testified they had knowledge of the road condition from two to four days before the accident and it was normal to notify headquarters of road defects. However, neither officer testified that the defendant was advised of the road condition.

Constructive notice can be shown by producing evidence that the defect was permitted to remain in its dangerous state for such a length of time as to warrant the conclusion that the Department of Highways was negligent in failing to discover it. Mistich v. Matthaei, 277 So.2d 239 (La.App. 4th Cir., 1973).

The shortest length of time to conclude constructive notice of a defect has been two weeks. Jones v. Louisiana Dept. of Highways, 338 So.2d 338 (La.App. 3rd Cir., 1976). The time period here falls short of the two week period enunciated in Jones, supra.

Plaintiffs placed in evidence several color photographs of the road defect which were taken immediately following the accident. From any angle the damaged roadway appears to fall short of being classified a “pot hole” necessitating immediate repair.

Plaintiffs failed to sustain their burden of proof. Accordingly, the judgment of the District Court is affirmed with costs of this appeal assessed against the plaintiffs-appellants.

AFFIRMED.


text:
    Hector CASTRO v. FIREMAN’S FUND INSURANCE COMPANY et al.
    No. 11087.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 13, 1980.

      Kronlage, Dittmann & Caswell, Robert M. Caswell, New Orleans, for plaintiff-ap-pellee.
    Joseph W. Thomas, New Orleans, for defendants-appellants.
    Before BOUTALL, GARRISON and BARRY, JJ.
   BARRY, Judge.

On June 3, 1977, plaintiff was a student at the Jefferson Parish Vocational Technical School. While at school he was standing at a drafting board and proceeded to sit back on a stool which gave way causing him to fall backward and suffer a back injury.

The District Court found the stool defective and awarded plaintiff $3,500.00 in damages plus interest, costs, and expert fees. Defendant appeals on the question of liability and plaintiff appeals seeking higher quantum.

Conflicting testimony was presented on how plaintiff sat on the stool and what portion was defective.

The lower court said in its judgment that the “stools were poorly maintained due to (1) an anticipated move to another site and (2) the acquisition of new chairs”. The trial judge concluded that the plaintiff fell backward because of the stool’s defective condition.

The trial judge’s finding of fact is not to be disturbed in absence of manifest error. Canter v. Koehring Co., 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). We find no fault with the lower court’s reasons for judgment.

Plaintiff seeks increased quantum because of the painful nature of the injury and the prolonged recuperative period. Dr. George Byram, Jr., an orthopedic specialist, testified that plaintiff was in severe pain, had limitation of motion and tenderness at the L-3 vertebra which X-rays revealed to be a compression fracture. Dr. Byram prescribed bed rest, medication and a lumbo-sacral corset. The primary period of discomfort extended approximately four months at which time physiotherapy and exercises were utilized. As recently as February, 1979, the orthopedist stated that plaintiff had a limited range of motion with periodic discomfort during work and recreation.

We recognize the trial court has great discretion in setting quantum; however, appellate courts have the duty and responsibility to revise quantum in judgments when such a finding is warranted. Reggio v. Louisiana Gas Service Company, 333 So.2d 395 (La.App. 4th Cir., 1976); Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976).

Appellate review of moderate to small monetary awards is admittedly difficult, but must receive the same scrutiny as substantial awards. If the dollars fall outside of reasonable discretionary range, then an adjustment is mandatory.

We feel the medical testimony requires an increase in the award from $3,500.00 to $7,500.00. The type of injury and duration of pain is compatible with the increased quantum. See: Sutterfield v. Fireman’s Fund Am. Ins. Co., 344 So.2d 1159 (La.App. 4th Cir., 1977), (affirming an award of $7,500.00 for cervical and lumbar strain over a period of approximately five months). Riley v. American Motorists Ins. Co., 365 So.2d 904 (La.App. 4th Cir., 1978), (affirming an award of $8,145.05 to a youth who sustained lumbosacral strain and cervical strain). Hughes v. Cox, 365 So.2d 1387 (La.App. 2nd Cir., 1978), (holding an award of $5,000.00 for back and neck injuries which required neck collar and back brace was inadequate and increasing award to $7,500.00).

Accordingly, the judgment of the District Court is increased to $7,500.00, plus legal interest thereon from judicial demand until paid. All costs, including the expert witness fee and this appeal, are assessed against defendant-appellant.

AMENDED and AFFIRMED.


text:
    Joseph C. LUSHER v. Ronald E. KILCREASE.
    No. 11100.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 13, 1980.

      Henry W. Kinney, III, New Orleans, for plaintiff-appellant.
    Alonzo T. Stanga, III, Metairie, for defendant-appellee.
    Before BOUTALL, GARRISON and BARRY, JJ.
   BARRY, Judge.

On July 28, 1977, a purchase agreement was executed between Leonard J. Bordelon, seller, and Ronald E. Kilcrease, buyer, for two lots in Ormond Estates in St. Charles Parish. On April 12, 1978, Kilcrease executed an act of assignment in favor of Joseph C. Lusher to purchase the lots. The assignment adopted the provisions of the agreement to purchase between Bordelon and Kilcrease and was subject to two additional provisions:

“Lot must qualify for a 4-plex permit.”
“Predicated on lot financing only.”

The purchase agreement between Borde-lon and Kilcrease had a sales price of $37,-200.00 with $1,860.00 cash and $1,860.00 by promissory note, or $3,720.00 representing a 10% deposit on the purchase price. The act of assignment between Kilcrease (assignor) and Lusher (assignee) valued the two lots at $48,600.00; a consideration of $13,260.00 was provided in the assignment consisting of $1,860.00 cash, a $1,860.00 promissory note, and the balance of $9,540.00 at the act of sale, plus $35,340.00 to be financed.

Plaintiff’s lawsuit for return of the “deposit” was based upon his alleged inability to obtain financing for the lots. Defendant’s answer alleged that plaintiff failed to make a good faith effort or use due diligence to secure the financing. Defendant filed a reconventional demand for payment of the $1,860.00 note. A general denial was filed by the defendant in reconvention, and his answer to the reconvention was later supplemented to allege that the lots were not suited for the purpose originally contracted for and that the assignor failed to tender title or place assignee in default thereby causing the assignment to lapse.

The District Court dismissed plaintiff’s main demand and rendered judgment in favor of the plaintiff in reconvention (assignor) and against the defendant in recon-vention (assignee) in the sum of $1,860.00 plus 8% per annum interest and 15% attorney fees as provided in the promissory note, and for all costs.

Questions presented are:

(1) Is plaintiff entitled to return of the $1,860.00 cash payment and cancellation of his demand note because of inability to secure financing for the lots?

(2) Was the property in such a condition that it was unsuitable for plaintiff as originally contracted for?

(3) Was the assignor required to tender title or place assignee in default under the provisions of the original purchase agreement or the act of assignment?

(4) Did the purchase agreement provide a specific date for transfer of title?

I.

As this court has previously stated in referring to the sale of real property: “Whether or not a party has acted in good faith depends on the facts and circumstances peculiar to each case.” Liuzza v. Panzer, 333 So.2d 689 (La.App. 4th Cir., 1976). The record reflects that assignee went to a bank to secure financing but apparently never followed through on his loan application. Four months later he applied to another bank which denied the loan. No other effort was made to fund the transaction. As-signee’s original petition was based upon his inability to secure financing, however, this claim was not raised on appeal and is therefore considered abandoned.

II.

Assignee objected to the condition of the lots which he apparently felt precluded construction of 4-plex units. No question is raised concerning zoning restrictions to build 4-plex units. The assignee testified that he could not inspect the land prior to signing the assignment because the property was inaccessible by automobile. This testimony was contradicted by the owner, Mr. Bordelon (not a litigant herein), who testified that the road leading to the property had been filled and the streets cleared. Apparently the assignee did not attempt to inspect the property before signing the act of assignment, but upon subsequent inspection he became concerned about the existence of a drainage ditch (which was later filled) that crossed the property and was certainly visible at all times.

It should be noted that assignee makes no claim of redhibition. The “deplorable” condition of the land was raised only in the supplemental answer to the reconventional demand. LSA-C.C. Art. 2521 provides “Apparent defects, that is, such as the buyer might have discovered by simple inspection, are not among the number of redhibitory vices.” The Supreme Court held in Pursell v. Kelly, 244 La. 323, 152 So.2d 36 (La.1963) that redhibition does not apply where the defect was apparent and could have been discovered by simple inspection. See: Cash v. Hight, 357 So.2d 373 (La.App. 4th Cir., 1978); Bernofsky v. Schwartz, 370 So.2d 590 (La.App. 4th Cir., 1979).

Furthermore, if the pleadings could be construed to assert a viable claim of redhibition, such claim as made against the assignor must fall. An act of assignment warrants only the existence and peaceable possession of the right to purchase; it does not warrant against physical defects in the object to which the right relates. Cryer v. M & M Manufacturing Company, Inc., 273 So.2d 818 (La.1973).

III.

Appellant cites two cases which set forth the requirement of formal tender of title in order for a vendor to retain or forfeit a deposit. Alley v. New Homes Promotion, Inc., 247 So.2d 218 (La.App. 4th Cir., 1971); Bagby v. Clark, 327 So.2d 633 (La.App. 4th Cir., 1976). Both cases involve agreements to purchase and not an act of assignment as here.

An act of assignment is the sale of an incorporeal thing under LSA-C.C. Art. 2449. The Supreme Court of this state has long recognized the assignment of rights in exchange for cash consideration. See: Sheridan v. Reese, 122 La. 1027, 48 So. 443 (La.1909); Young v. Cistac, 103 So. 100 (La.1925); Cryer v. M & M Manufacturing Company, Inc., 273 So.2d 818 (La.1973). The effect of an act of assignment is to transfer the assignor’s rights in the original agreement in favor of the assignee. Since the assignee assumed all of the rights of the assignor as provided in the purchase agreement, the assignee would certainly then be in a position to assert against the seller that title must be tendered or that the assignee must be placed in default for nonperformance. However, the assignee chose to sue the assignor, not the seller. It was impossible for the assignor to tender title to property which he clearly did not own; the thing sold was the right to purchase, not the land. Cryer, supra.

IV.

The purchase agreement provided that the sale was to take place “not later than 30 days after acceptance of development and all offsite improvements by St. Charles Parish.” There is no date in the transcript when the St. Charles Parish Police Jury accepted the improvements; however, the land owner, Bordelon, did testify that the improvements were accepted approximately three months after the date of the act of assignment and assignee was notified.

We take notice that it is common business practice for land developers to enter into sales agreements predicated upon the property being improved prior to the act of sale. These sales agreements are then used to provide collateral to secure financing. This type of agreement protects purchasers from buying property until the developer completes improvements.

Plaintiff’s original demand was based upon his inability to secure financing. As defendant in reconvention his answer was a general denial. Later, in answer to the supplemental and amended reconventional demand, he “further answered” to aver the poor condition of the property and that title was never tendered and the original contract expired. No mention is made in the pleadings concerning lack of a specific date to transfer title. The issue of a specific date was first mentioned in defendant in reconvention’s brief on appeal. This contention is without merit for the reasons stated above.

Apparently Mr. Lusher wanted to purchase land at a time when it may have been economically feasible but, because of market conditions and inflation, later found that it was impractical to proceed. He then chose not to comply with the terms of the assignment and purchase agreement.

For the foregoing reasons, the opinion of the District Court is affirmed, plaintiff-defendant in reconvention to pay all costs.

AFFIRMED.

      . Not only corporeal objects, such as movables and immovables, livestock and produce, may be sold, but also incorporeal things, such as a debt, inheritance, the rights, titles and interests to an inheritance or to any parts thereof, a servitude or any other rights.


author: SARTAIN, Judge.

text:
    William E. STROTHER, Jr. v. NATIONAL AMERICAN BANK.
    No. 10992.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 13, 1980.
    Molony, Nolan, North, Riess & Hall, Terence E. Hall, New Orleans, for plaintiff-appellant.
    William S. Vincent, Jr., New Orleans, for defendant-appellee.
    Before SAMUEL, GARRISON and SAR-TAIN, JJ.
   SARTAIN, Judge.

This is an action against a local bank for cashing plaintiff’s check on a foreign bank contrary to a restrictive indorsement. Plaintiff appeals from a judgment of the district court which sustained defendant’s plea of prescription of one year. We reverse and remand.

The facts are not in dispute. On January 13, 1974, plaintiff drew a check in the amount of $26,000.00 on his account with the Citizens and South National Bank of Atlanta, Georgia. The cheek was payable to the order of “Chalmette Properties” and on the back thereof plaintiff indorsed the same “Deposit Only Chalmette Properties”. On or about January 15, 1974, the check was further indorsed by “Dr. H. A. Thian”, presented to and cashed by defendant, National Bank of New Orleans. This suit was filed on November 3, 1977.

The issue presented is whether the applicable prescriptive period is one year (C.C. art. 3536, offenses and quasi offenses) or five years (C.C. art. 3540, bills and notes, etc.).

It is apparent from the result reached in the trial court that the judge a quo treated the issue as an offense or quasi offense, vis, that the defendant bank negligently overlooked the restrictive endorsement. While some cases may refer to the negligence of a depositor or the negligence of a bank employee, the relationship between a bank and its customers, in the absence of specific statutes to the contrary, is not covered by the rules applicable to offenses and quasi offenses. As between a bank and its depositor, the relationship is covered by contract. Davis v. Miller Builders & Developers, Inc., 340 So.2d 409 (La.App. 2nd Cir. 1976); Fidelity National Bank of Baton Rouge v. Vuci, 224 La. 124, 68 So.2d 781 (1953); LaCour v. Merchants Trust and Savings Bank, 153 So.2d 599 (La.App. 4th Cir. 1963). As between the payee of a check and an intermediate or collecting bank, the relationship is that of a principal and agent. Davis v. Miller Builders & Developers, Inc., above.

A number of states have specific statutes dealing with altered checks, whether the alteration is on the face of the check or the back thereof, including endorsements. The only applicable statute in Louisiana at the time was R.S. 6:53 and this statute deals only with forgery and checks where the amount has been raised. Such is not the case here. The events in the instant matter parallel what is termed a “civil conversion” in other jurisdictions. Soma v. Handrulis, 277 N.Y. 223, 14 N.E.2d 46 (1938); Salsman v. National Community Bank of Rutherman, 102 N.J.Super. 482, 246 A.2d 162 (1968).

The basic question remaining here is that of prescription. C.C. art. 3540, which we find to be applicable, provides:

“Actions on bills of exchange, notes payable to order or bearer, except bank notes, those on all effects negotiable or transferable by indorsement or delivery, and those on all promissory notes, whether negotiable or otherwise, are prescribed by five years, reckoning from the day when the engagements were payable.” (Emphasis ours.)

The article first appears as Article 3505 of the Civil Code of 1825. The “on” in the 1870 code is the English translation of the French word “sur”. Art. 3540, La.C.C. Comp.Ed. in 17 West’s LSA, C.C. p. 702 (1972). Webster’s Third New International Dictionary, defines “on”, inter alia, as a function word to indicate a “(6) source or support or basis on which something (as an action, opinion) turns or rests.”

With respect to the check in question we believe the clear intent of the article to be to the effect that bills of exchange, notes, and other instruments, negotiable or otherwise, are to have a viable life for a period of five years. While the instant action is not a suit between the maker (Strother) and the payee (Chalmette Properties), it is an action by the maker against a third party whose averred conduct is claimed to have contradicted and clearly vitiated the terms and efficacy of the instrument. Such conduct falls within the purview of C.C. art. 3540, above.

For the above reasons the judgment of the district court sustaining defendant’s plea of prescription is reversed and set aside and this matter is remanded to the district court for further proceedings. All costs relating to this appeal are to be borne by the defendant. All other costs are to await final determination on the merits.

REVERSED AND REMANDED.

      . In the original petition the events are stated to have occurred in June, 1974. However, the affidavit of plaintiff in the record clearly shows that the events actually took place in January, 1974. The error in the petition is not considered consequential.

      . The bank’s dilatory exception of failure to join a necessary party (Dr. H. A. Thian) became moot when its exception of prescription was sustained.

      . The events giving rise to this litigation occurred prior to the effective date of Act No. 92 of 1974 (January 1, 1975), now Title 10 (Commercial Laws) and are therefore governed by Titles 6 and 7 (Negotiable Instruments Law). L.R.S., where applicable.

      . Ibid.

      .R.S. 6:53 — “Suits to enforce the liability of any bank which has paid and charged to the account of a depositor any money on a forged or raised check or on a check made payable to a fictitious person and issued in the name of the depositor may be brought only within one year after notice to the depositor that the vouchers representing payments charged to his deposit account for the period during which the payment was made are ready for delivery, or, in case this notice has not been given, only within one year after the return to the depositor of the voucher representing the payment, and then, only if the depositor, upon the return by the bank, has notified it that the check paid is forged or raised or was payable to a fictitious person.
      “Either notice may be given by mail, postage prepaid, directed to the addressee’s last known address.”