author: ELLIS, Judge.

text:
    Wesley J. NORWOOD, Sr. v. WPM EXPLORATION, INC.
    No. 14895.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1982.

      John R. Rarick, St. Francisville, for plaintiff-appellee.
    Patrick S. Ottinger, Lafayette, for defendant-appellant.
    Before ELLIS, PONDER and SAVOIE, JJ.
   ELLIS, Judge.

This is a suit for cancellation of a mineral lease and for damages. Plaintiff is the lessor, Wesley J. Norwood, Sr., and defendant is the lessee, WPM Exploration, Inc. After trial on the merits, judgment was signed ordering the lease cancelled, and defendant has appealed. Plaintiff has answered the appeal, asking for damages and attorney’s fees, which were denied by the trial court.

On the evening of August 30,1979, plaintiff was approached by Richard Conner, representing WPM, relative to leasing 67 acres of land for mineral purposes. After some negotiation, a price of $45.00 per acre for the first year and $25.00 per acre per year thereafter, for a five-year period was agreed on. The lease was executed and Mr. Conner gave plaintiff a draft, drawn on Guaranty Bank & Trust Company, Lafayette, Louisiana, for $3,015.00, dated August 30, 1979. The draft stipulates that it is “subject to title and 30 days sight.”

Mr. Norwood placed the draft for collection with his bank in St. Francisville, Louisiana, on August 31, 1979, and the draft was received by the Guaranty Bank on September 4, 1979. On October 2, 1979, plaintiff called his bank and found that the draft had not yet been honored. On the same day, his bank was instructed not to accept or deposit any funds paid on account of the draft, and Mr. Conner was notified by telephone that the lease was terminated. Subsequently, WPM was advised not to record the lease.

The draft was, in fact, received by the Guaranty Bank on September 4, 1979, and paid on October 3,1979. The payment was refused by plaintiff’s bank.

Mr. Norwood testified that, at the time that the draft was delivered, Mr. Conner told Mrs. Norwood that the draft was “a 30 day draft, but don’t worry your money will be in the bank before 30 days,” or “The check will be there before 30 days is up.” Mrs. Norwood testified that Mr. Conner told her “don’t run out and write a check on this in the next day or two, because it won’t be any money in the bank for a few days.” She also testified that Mr. Conner said the money would be in the bank within 30 days.

Mr. Conner said that he explained to plaintiff and Mrs. Norwood that he had given them a 30 day draft, and that it would be a few days before the money would be received by their bank. He did not recall stating that the money would be received within 30 days. He testified that he told them it was a 30 day draft.

The trial judge concluded from the foregoing testimony that “the parties never reached a meeting of the minds about the nature of the payment,” and that he was convinced that “payment within 30 days was a principal cause of the lessors consenting to receive a draft....” He then stated:

“Under the facts of this case, unique as to the circumstances and dependent upon the inducement to accept the draft, and upon the close examination and observation of the witnesses as to their testimony regarding the negotiations, it is found that equity and justice may best be served by placing the parties in the same position as prior to the date of August 31, 1979. Both have suffered, perhaps speculative damage, but real damage to either has not been shown. It cannot be said that time is on the side of either in this highly speculative business.”

In this court, WPM contends that the trial court erred in finding that the draft was not timely paid; in admitting into evidence, over defendant’s objection, parol testimony tending to vary the terms of the draft; and, alternatively, that the evidence so admitted failed to establish that the draft was payable within 30 days of its date, rather than within 30 days from sight.

The dispute in this ease arises out of the term “30 days sight.” Plaintiff claims that Mr. Conner told him this term meant that the draft would be paid within 30 days. Mr. Conner testified that he only told plaintiff that the draft was a “30 day draft.” He denied, or did not recall giving any more specific definition of the term than that.

The term “30 days sight” is nowhere defined in our law. R.S. 10:3-109 refers to a fixed period “after sight,” and the term “at sight” appears elsewhere in our law. However, “sight” alone seems to have no fixed meaning at law. It is obvious, however, that the term “30 days sight” has a meaning within banking and other commercial circles.

Article 1947 of the Civil Code states: “Terms of art or technical phrases are to be interpreted according to their received meaning with those who profess the art or profession to which they belong.”

The record is devoid of any evidence as to the meaning of that term. It is obvious from the evidence that plaintiffs did not know what it meant and asked Mr. Conner. It is equally obvious that Mr. Conner did not explain fully the meaning of “30 days sight.” According to his own testimony, he told plaintiff it was a 30 day draft and no more.

Articles 1957 and 1958 of the Civil Code provide:

Art. 1957 “In a doubtful case the agreement is interpreted against him who has contracted the obligation.”
Art. 1958 “But if the doubt or obscurity arise for the want of necessary explanation which one of the parties ought to have given, or from any other negligence or fault of his, the construction most favorable to the other party shall be adopted, whether he be obligor or obligee.”

Under the foregoing circumstances, the misunderstanding of plaintiff as to the technical significance of “30 days sight” stems from the failure of Mr. Conner to make the “necessary explanation.” We do not believe that the law will bind plaintiff to the technical meaning of the term when both he and his wife requested an explanation thereof, and it was not sufficiently given.

Within the context of the circumstances of this case, we find the term “30 days sight” to be ambiguous and obscure, and that parol evidence is admissible to explain the ambiguity. The trial judge found that the plaintiff was led to believe that the draft was to be payable within 30 days of its date, and that this was a principal cause of the contract. We find no error in his conclusion.

By answer to the appeal, plaintiff seeks damages and attorney’s fees, which were denied by the trial court. An award for damages and attorney’s fees is covered by R.S. 31:206 et seq. These statutes provide that when a mineral right is extinguished for any reason, and a demand is made for an act of cancellation thereof, the failure of the former owner of the right to furnish the required act within 30 days subjects him to damages and attorney’s fees. R.S. 31:209 makes the right to secure damages and attorney’s fees applicable to a demand for dissolution of a mineral lease.

The trial court found that no real damages were suffered by either party, and the record contains no proof of damages suffered by plaintiff. In this court, plaintiff argued that he has been unable to lease his property for three years because of defendant’s failure to pay the consideration for the lease timely. However, there is no evidence of other opportunities to lease the property, a fact which could easily have been proven. We find no error in the refusal of the trial judge to award damages.

As to attorney’s fees, we note that defendant was notified not to record the lease, and, after it was recorded, a demand for its cancellation was made. Defendant failed to comply with the demand within 30 days, and therefore subjected itself to the payment of reasonable attorney’s fees. Considering the record herein, the amount of time consumed in preparation and trial hereof in district and appellate courts, the questions of law presented, and the value of the rights involved, we find that an attorney’s fee of $1500.00 would be reasonable.

The judgment appealed from is amended, so as to award plaintiff an attorney’s fee of $1500.00, with interest from date of judicial demand until paid, and, as amended, it is affirmed, at defendant’s cost.

AMENDED AND AFFIRMED.


source: Caselaw Access Project

author: PONDER, Judge.

license: Public Domain

text:
    In re AGRICO CHEMICAL COMPANY v. E. K. PAINTING, INC.
    No. 14896.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1982.
    G. William Jarman, Gary A. Bezet, Baton Rouge, for plaintiff-appellee Agrico Chemical Co.
    John D. Brady, Richard L. Crawford, Baton Rouge, for defendant-appellee Sherwin Williams Co.
    Henry F. Mestayer, New Orleans, for defendant-appellee Devoe & Raynolds Co.
    Larry B. Book, Baton Rouge, for defendant-appellee E. K. Painting, Inc.
    James M. Ross, Baton Rouge, for interve-nor-appellant Clyde E. Hodges (Substituted for La. National Bank of Baton Rouge).
    Eric A. Kracht, Baton Rouge, for defendant-appellee Eli Kline.
    Before ELLIS, PONDER and SAVOIE, JJ.
   PONDER, Judge.

Intervenor, Clyde E. Hodges, appealed from the judgment ranking his claim inferi- or to those of two other intervenors.

The issue is the validity of an assignment of accounts receivable under the provisions of La.R.S. 9:3101, et seq.

We affirm.

E. K. Painting, Inc., had done some work for Agrico Chemical Company. Because of conflicting claims, Agrico paid $63,300.29 into the registry of the court, making E. K. Painting, Inc. and Eli Kline, a stockholder of E. K. Painting, Inc., defendants.

Louisiana National Bank intervened seeking all the deposits on the basis of an assignment of accounts receivable. Two judgment creditors seized E. K.’s interests. By stipulation, Louisiana National Bank was awarded the amount not claimed by the judgment creditors; this would be subject to further proceedings. Clyde E. Hodges purchased the remaining interest of Louisiana National Bank and was substituted as an intervenor.

Hodges’ claim was based on the following. On December 4, 1978, E. K. Painting, Inc., signed a promissory note to Louisiana National Bank for $100,000.00. On August 7, 1979 it signed a statement of assignment of accounts receivable as required under La.R.S. 9:3103 and an assignment of accounts receivable, which assigned, among others, the account with Agrico. The statement of assignment of accounts receivable was recorded in the Parishes of Iberville, Plaquemines and St. James on August 10, and in Ascension Parish on August 21, 1979.

Relying on Air Compressors, Inc. v. Big Chief Construction Company, Inc., 367 So.2d 413 (La.App. 1st Cir. 1978), writ denied 369 So.2d 465 (1979), the trial court held that the judgment creditors were entitled to the amounts of their claims, because the assignment was made prior to the recording of the statement of accounts receivable.

Appellant urges us to reverse our holding in the Air Compressor, Inc. case pointing to the words “having undertaken the acceptance of”, “has pledged” and “has assigned” of La.R.S. 9:3103 as indicating that recor-dation of the statement of accounts receivable does not have to be made prior to the assignment for the latter’s validity.

We decline to reverse ourselves. The use of the above words seem to support appellant’s position. It is also true that the Supreme Court in refusing a writ was critical of the rationale and reasoning assigned without being specific.

However, we remain of the same mind. La.R.S. 9:3104 provides that the statement becomes effective upon filing and that filing constitutes public notice of an assignment made during the effective period of the statement. La.R.S. 9:3105 speaks of the assignment within the effective period of a statement of assignment of accounts receivable.

La.R.S. 9:3102 provides for the priority given to the assignment when given within the effective period of a statement of assignment made and filed for record.

For these reasons, the judgment is affirmed at appellant’s costs.

AFFIRMED.

      . One creditor had secured a judgment on January 23, 1980, recorded it on January 24, 1980, and seized E. K.’s interest on April 14, 1980. The other creditor had secured its judgment on February 26, 1980, recorded it on February 27, 1980, and had notice of seizure issued on March 13, 1980.

      . La.R.S. 9:3103:
      “Any person undertaking or having undertaken the acceptance of or contemplating the acceptance of an assignment of accounts receivable is entitled to file in the office of the recorder of conveyances of the parish of the assignor’s domicile if assignor is domiciled in the state, or of the parish in which is located the place or places of business of the assignor if the assignor is not domiciled in this state, a statement signed by or on behalf of the assign- or and assignee containing (1) the address of the principal place of business of the assignee, (2) the address of the place or places of business or occupation of the assignor and (3) a statement that the assignor has assigned or will assign accounts receivable, or that the assignor has made or will make a general assignment of all of its accounts receivable or all accounts receivable concerning a specified debtor. For this purpose forms of statement substantially as follows will suffice:
      ‘STATEMENT OF ASSIGNMENT OF ACCOUNTS RECEIVABLE Date_ - (has assigned or will assign accounts receivable, has made or will make a general assignment of accounts receivable, has made or will make a general assignment of all accounts receivable of _, account debtor) to _ in accordance with the Louisiana Assignment of Accounts Receivable law. The assignment or proposed assignment described in this statement (is, is not) made to secure an obligation. The assignor is_(an individual, a corporation, a partnership).
      The place of business of assignor at and/or from which is conducted the business or occupation in the course of which accounts to be assigned have been or will be contracted is at
      (Street Address City Parish).
      The assignee is _ (an individual, a corporation, a partnership). The principal place of business of assignee is at
      (Street Address City State)
      Assignor
      Assignee’

      . The Bankruptcy Court in In Re Wm. Wolf Baker, Inc., 14 B.R. 382 (Bkrtcy.M.D.La.1981), speculated that the criticism might have been directed at the doubt thrown on the assignment of future accounts receivable.
      The statute as amended specifically provides for the assignment of future accounts receivable.

      . La.R.S. 9:3102:
      “1980 Amendment: Rewrote this section, which had read: ‘Every assignment of an account receivable evidenced in writing and made for a valuable consideration within the effective period of a statement of assignment made and filed for record as hereinafter prescribed shall be valid and shall be deemed and held to have been fully perfected at the time such assignment is made, notwithstanding that the debtor be not notified of or does not assent to such assignment; and thereafter no subsequent assignee, pledgee, purchaser or transferee of such account or other person claiming, or to claim under, through or against the assignor, and no existing or future attaching, garnishing, judgment, execution, levying or other creditor of the assignor, except a creditor who through judicial proceedings shall have perfected a superior lien on such account prior to the time of such assignment shall or can have or be entitled to any right, title, lien or interest in or to such account superior to or in diminution of that of such assignee therein or thereto.’ ”


author: SAVOIE, Judge.

text:
    Jerome T. LE BLANC v. Sharon HOFFELD.
    No. 14897.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1982.
    Jerome T. Le Blanc, Sharon Hoffeld, in pro per.
    Before ELLIS, PONDER and SAVOIE, JJ.
   SAVOIE, Judge.

This appeal was fixed on the May 11, 1982 docket and all parties of record were notified. At the time scheduled for argument, the appellant was not present nor represented, nor had any brief been filed on behalf of appellant, nor had any motion been filed for continuance.

On authority of Rule VII, Section 5(b), Uniform Rules of the Courts of Appeal, this Court, ex proprio motu, considers this appeal as abandoned; therefore, it is ordered that this appeal be dismissed with prejudice. Appellant is to pay all costs.

APPEAL DISMISSED.


author: ELLIS, Judge:

text:
    Dennis DUCLOS v. UNITED STATES FIRE INSURANCE COMPANY.
    No. 14898.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1982.
    Randolph C. Slone, Slidell, for plaintiff, appellee.
    Louise A. Ferrand, New Orleans, for defendant, appellant.
    Before ELLIS, PONDER and SAVOIE, JJ.
   ELLIS, Judge:

This is a suit to recover amounts allegedly due by defendant United States Fire Insurance Company to plaintiff Dennis Duelos under a policy of insurance issued to plaintiff by defendant. Plaintiff’s petition was filed on April 8, 1981, and was served on the Secretary of State on April 15, 1981. On May 1, 1981, defendant filed a motion for an extension of time to plead, which reads as follows:

“ON MOTION of United States Fire Insurance Company defendant, appearing herein through undersigned counsel, and on suggesting to the Court that counsel will require an additional 20 days within which to file responsive pleadings due to the fact that copy of the petition has just been received and considered factual investigation must be made.
“IT IS ORDERED BY THE COURT that defendant United States Fire Insurance Company be and hereby granted an additional delay of 20 days within which to file responsive pleadings herein.”

The motion was signed by a judge on May 12, 1981. On May 29, 1981, a preliminary default was entered against the defendant, and on June 5, 1981, the default was confirmed and judgment signed in favor of plaintiff and against defendant as prayed for. On June 12, 1981, defendant filed an answer, and on June 28, 1981, a motion to set aside the judgment of June 5, 1981.

After a hearing on the motion, it was denied, and defendant has appealed both the June 5, 1981 judgment and the judgment denying the motion to set aside the June 5, 1981 judgment. The latter judgment has not been reduced to writing, and does not appear in the minutes of the court.

Article 2002 of the Code of Civil Procedure provides:

“A final judgment shall be annulled if it is rendered:
“(1) Against an incompetent person not represented as required by law;
“(2) Against a defendant who has not been served with process as required by law and who has not entered a general appearance, or against whom a valid judgment by default has not been taken; or
“(3) By a court which does not have jurisdiction over the subject matter of the suit.
“Except as otherwise provided in Article 2003, an action to annul a judgment on these grounds may be brought at any time.”

It is clear that, if the preliminary default entered on May 29,1981 was premature, the judgment of confirmation is absolutely null. Whether the preliminary default was prematurely entered depends on the interpretation placed on the order extending the time to plead.

Plaintiff argues, and the trial court held, that granting “an additional delay of 20 days,” had the effect of adding 20 days to the original delay for answering. The original delay for answering expired on April 30, 1981, and 20 days thereafter would be May 20, 1981, well before the day on which the preliminary default was entered.

Defendant argues that the 20 day extension did not begin to run until May 12,1981, the day on which the order was signed, making the final day for answering June 1, 1981, three days after the preliminary default was entered.

Ordinarily, an order or judgment will take effect only from the date on which it is signed. This is particularly true when the granting or denial of the order lies within the discretion of the trial judge, as in the case of a request for an extension of time to plead. Article 1001, Code of Civil Procedure.

Had plaintiff entered and confirmed the preliminary default between May 1 and May 11, 1981, the subsequent granting of an extension of time to plead would not invalidate the default judgment rendered prior thereto. Similarly, when the motion for extension of time is granted, it should take effect only from the date of signing, and the extension should run from that time.

We therefore conclude that the delay for answering expired on June 1, 1981, and that the preliminary default entered on May 29, 1981, was premature. It follows that the judgment rendered on confirmation of that default is absolutely null, under the express terms of Article 2002 of the Code of Civil Procedure.

The judgment appealed from is therefore reversed and the case remanded to the trial court for further proceedings, according to law. All costs of this appeal shall be paid by plaintiff. All other costs shall await final determination of the case on its merit.

REVERSED AND REMANDED.


text:
    HOUMA ARMATURE WORKS & SUPPLY, INC. v. Richard LANDRY, Michael X. St. Martin & Sport Fishing Charters, Inc.
    No. 14904.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1982.
    Louis St. Martin, Houma, for defendants and appellants.
    J. Fredrick Kessenich, New Orleans, for plaintiff and appellee.
    Before ELLIS, PONDER and SAVOIE, JJ.
   PONDER, Judge.

Defendants appealed from a judgment holding them solidarity liable for labor and materials for electric wiring of a boat.

The issues are the failure of the trial court to find a contract price and the amount of the judgment.

Dr. Richard Landry, who was co-owner along with Mr. Michael X. St. Martin, of a 42 foot boat hull, made request of Mr. Welch, president of Houma Armature Works & Supply, Inc. that he wire the boat for 110 volt alternating current. Dr. Landry, Mr. Welch and an electrician for Hou-ma Armature discussed what wiring was to be done while going through the yacht.

Mr. Welch and the electrician testified that an estimate of $700.00 for labor was given, but that in subsequent conversation the amount of work to be performed was increased. Mr. Welch understood that the work was to be done on a time and material basis with no contract price. Dr. Landry testified that a price of $700.00 for labor and materials was agreed to and the only additional cost should have been the cost of extras.

Before the completion of the wiring, the electrician performed temporary measures to allow the use of the boat for a week-end. A second electrician finished the wiring, because the first had left plaintiff’s employment, when the boat was returned much later.

Houma Armature billed defendants for $3,921.65 for the materials and labor performed on the boat and sued when payment was refused.

The trial judge held that plaintiff proved its demand in quantum meruit and awarded the amount sued for.

Defendants’ argument that the trial court erred in not finding a contract price of $700.00 is without merit. The trial court evidently found that there was no agreement as to the price of the work. This finding, based on conflicting testimony, is not manifestly erroneous.

Under the theory of quantum meru-it, the law implies a promise to pay even in the absence of a specific contract. Swift-ships, Inc. v. Burdin, 338 So.2d 1193 (3rd Cir. 1976).

Plaintiff is entitled to recover his actual cost, including general overhead attributable to the project, and a reasonable profit. Skains v. White, 391 So.2d 1327 (2nd Cir. 1980). This is limited to the amount by which defendants’ property has been enhanced.

Plaintiff introduced detailed repair orders showing the work performed and the materials used. The present captain of the boat testified that he measured the wiring on the boat and found that less wire was used than evidenced by the orders. The trial court evidently found that plaintiff’s invoices and repair orders were the more credible evidence. We find no error.

Defendants argue that they should not be charged for two days of labor performed by the second electrician in tracing and tagging the wires placed by the first, who testified that he had had to remove the tags from the wires in order to hook them up so the boat would be operational for the week-end trip. He felt that he would have no problems coming back after two days and remembering the identification of the wires. When he changed jobs, over a month later, he had not been notified that the boat had been returned and was unable to complete the job.

This cost can be reasonably attributed to defendants.

The 22% overhead cost and the markup for profit were explained. We find no error.

The plaintiff bears the burden of proving the value of the labor and materials furnished; defendants must then show that the amount claimed exceeds the amount of the enhancement. Swiftships, Inc. v. Bur-din, supra. Defendants have not proved their defense.

For these reasons, the judgment of the trial court is affirmed with costs assessed to the defendants.

AFFIRMED.

      . The third defendant is Sport Fishing Charters, Inc., a corporation formed by Mr. St. Martin, who owns all the stock thereof. It was stipulated that Dr. Landry had sold his entire interest in the boat to Mr. St. Martin.


text:
    Marie BROWN v. WINN-DIXIE LOUISIANA, INC.; and XYZ Insurance Company, Inc.
    No. 14909.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1982.
    Writ Granted Oct. 1,1982.
    Herbert W. Barnes, Jr., Houma, for plaintiff and appellant.

      Robert L. Morris, Houma, for defendant and appellee.
    Before ELLIS, PONDER and SAVOIE, JJ.
   ELLIS, Judge:

In this case, plaintiff Marie Brown is suing for damages for personal injuries suffered when she slipped and fell while shopping in a Winn-Dixie food store. Defendant herein is Winn-Dixie Louisiana, Inc., owner of the store. After trial on the merits, judgment was rendered dismissing plaintiff’s suit and she has appealed.

The record shows that plaintiff slipped and fell because of the presence of a number of grains of rice on the floor of the aisle. The presence of the rice was acknowledged by the store manager.

The record further reflects that the store was fully swept and mopped each morning before opening, but that there was no cleaning routine followed thereafter. Cleaning was done on an “as needed” basis, with all employees of the store responsible for keeping a lookout for spills or other hazardous conditions.

The store manager testified that he had walked through the aisle in which plaintiff fell, about ten or 15 minutes before the accident, and that the aisle was then clean and free from any rice spill.

The trial judge accepted this testimony and found that the existence of a cleaning routine was immaterial under the circumstances, since it was known that the spill occurred less than ten or 15 minutes before the accident, which was not a sufficient period of time to put the store on constructive notice thereof. He therefore dismissed plaintiff’s suit.

The law is clear that once a person proves that he slipped and fell in a grocery store because of a foreign substance on the floor, of which he was unaware, the burden shifts to the store owner to exculpate himself from the presumption of negligence which has arisen. Generally the store owner attempts to show that there were periodic inspections conducted which would insure that the premises were free of foreign substances on the floor. Gonzales v. Winn-Dixie Louisiana, Inc., 326 So.2d 486 (La.1976).

In this case, however, no such periodic inspections were conducted. The store manager testified that all employees, including himself, were charged with the duty of maintaining a constant lookout for hazardous conditions, that clean-ups were conducted as necessitated thereby. This type of routine would not be sufficient to exculpate defendants from the presumption of negligence. However, if the store owner is able to show that the foreign substance had not been on the floor for a sufficient period of time to constitute constructive notice of its presence, he has discharged his burden of proof. Maryland v. Winn-Dixie, La., Inc., 393 So.2d 316 (La.App. 1st Cir. 1980), writ refused 398 So.2d 530 (La.1981). In this case, the store manager testified that he had traversed the aisle where the accident happened only 10 or 15 minutes before the time of the accident, and that he had observed no rice on the floor. Plaintiff attacks his testimony on a number of bases, including the difficulty of seeing rice on the speckled floor tiles and the manager’s testimony that he was not specifically looking for rice on the floor. The manager did so testify, but he also stated that he was trained and accustomed to look for foreign substances on the floor, and that he would have seen the rice had it been present, although he was not specifically looking for it. We find no manifest error in the finding of the trial judge, based on the above testimony, that the aisle floor was free from foreign substances ten minutes before the accident, and agree that under the circumstances, defendant has exculpated itself from the presumption of negligence.

Plaintiff further contends that the presence of the rice on the floor renders the store premises defective and presents an unreasonable risk of harm to the public, rendering defendant liable under Article 2317 of the Civil Code.

In Jones v. City of Baton Rouge, Etc., 388 So.2d 737 (La.1980), the court said:

“In Loescher v. Parr, 324 So.2d 441, 446 (La.1976), we found that article 2317 provides for the same type of ‘strict’ liability on the part of an owner or custodian, for damages caused by things in his custody, and we described the legal foundation for this liability in the following terms:
‘When harm results from the conduct or defect of a person or thing which creates an unreasonable risk of harm to others, a person legally responsible under these code articles for the supervision, care, or guardianship of the person or thing may be held liable for the damage thus caused, despite the fact that no personal negligent act or inattention on the former’s part is proved. The liability arises from his legal relationship to the person or thing whose conduct or defect creates an unreasonable risk of injuries to others.’
“Because the responsibility for preventing the unreasonable risk of injury to others is unconditional, the injured party seeking damages under article 2317 need not prove that any particular act or omission on the part of the defendant caused his injuries. He must only prove that the thing which caused the damage was in the care or custody of the defendant, that the thing had a vice or defect — that is, that it occasioned an unreasonable risk of injury to another — and that his injury was caused by the defect.”

We cannot agree with plaintiff’s contention. It is our opinion that the temporary presence of a foreign substance on the floor is not a defect within the meaning of the above quoted statement of the law. A defect is some flaw or fault existing or inherent in the thing itself. An otherwise flawless floor is not rendered defective because a foreign substance is spilled on its surface. We therefore find Article 2317 to be inapplicable to this situation.

The judgment appealed from is affirmed, at plaintiff’s cost.

AFFIRMED.


text:
    Philip K. HAMILTON, Sr. v. Carol Ann deBoxtel HAMILTON.
    No. 14914.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1982.
    Rykert O. Toledano, Jr., Covington, for plaintiff, appellee.
    Floyd J. Reed, New Orleans, for defendant, appellant.

      Before ELLIS, PONDER and SAVOIE, JJ.
   ELLIS, Judge:

This is an appeal by Carol deBoxtel Hamilton, asking for permanent alimony, which was denied by the court below, and for an increase in the amount of child support awarded.

The parties were separated by judgment dated June 14, 1979, at which time Mr. Hamilton was ordered to pay $200.00 per month alimony pendente lite and $250.00 per month in child support. At that time there were two minor children involved. This judgment was appealed and affirmed. Hamilton v. Hamilton, 388 So.2d 64 (La.App. 1st Cir. 1980).

Subsequently, rules were filed by Mr. Hamilton to reduce the alimony and child support, and by Mrs. Hamilton to increase alimony and child support and for contempt for failure to pay alimony as ordered. Child support was reduced to $225.00 per month because one of the children had become a major, and the $200.00 per month alimony was continued. The other rules to increase or decrease were dismissed. Judgment on the rules was signed on September 12, 1980. This judgment was appealed by Mrs. Hamilton, was lodged with this court on November 4, 1981, as No. 15,004, and is presently awaiting hearing.

This suit, for a divorce, was filed by Mr. Hamilton on April 23, 1980, requesting, inter alia, the same reductions in alimony and child support sought in the above mentioned rules. Mrs. Hamilton answered, reconvened for divorce, and prayed for permanent alimony and child support.

Trial on the merits was held and judgment was rendered fixing child support for the remaining minor child at $225.00 per month, and denying permanent alimony. The judgment signed does not include a provision that Mr. Hamilton pay the medical expenses of his minor child, which was ordered by the court in its oral decree.

Mr. Hamilton filed in the record a list of income and expenses, which shows a gross monthly income of $1,400.00 and a net income of $917.45. He is paying a house note of $300.20, which covers the house in which his wife and children are living. He was living with his parents and paying them $150.00 per month for room and board. He had additional expense of $85.00 per month for meals away from home. Other monthly expenses reported included personal toiletries and laundry, $25.00; miscellaneous contributions to household, $15.00; automobile expense, including insurance, $117.00; medical expense, $35.00; clothing, $30.00; entertainment, $20.00; insurance, $13.57; credit card, $30.00 and attorney’s fees, $100.00. His living expenses totalled $920.77. In addition, Mr. Hamilton drives a company car, but only on company business, and has a $100.00 expense allowance for entertainment, for which he is accountable and which is used only for business entertainment. In 1980, Mr. Hamilton’s total income was $20,200.00, which included a $2,700.00 bonus not reflected in his statement of income and expenses.

Mrs. Hamilton reported total monthly expenses of $2,177.20 for herself and her minor son. This included the $300.20 house note being paid by her husband; $450.00 for groceries; $130.00 for utilities; $35.00 for telephone; $55.00 for medical; $100.00 for insurance; $113.00 for a car note; $230.00 for automobile expense; $250.00 for clothing; $100.00 for legal fees; $100.00 for recreation; $50.00 for gifts; $50.00 for vacation, and other lesser amounts for such items as transportation, haircuts, cleaning, school expenses, allowance, personal items, newspapers, linens, kitchen utensils, contributions and firewood.

Mrs. Hamilton testified to a gross income from all sources, other than alimony and child support of just over $1,100.00 per month. She had not been employed at the time of the earlier adjudications relative to alimony and child support. When questioned about her expenses, she testified that she was not actually spending all of the amounts reflected by her statement, but that some of them reflected what she would like to have.

We find no abuse of discretion. Mr. Hamilton is paying almost one third of his net monthly income to pay the note on a community house in which his wife and child reside, and in addition must pay $225.00 per month in child support, plus all medical expenses incurred by his minor child. His living expenses appear to be minimal. Mrs. Hamilton appears to have exaggerated her living requirements somewhat, and is now gainfully employed. As pointed out by the district judge, this is another of those cases in which there is just not enough money to go around, and Mrs. Hamilton appears to have sufficient means for her maintenance, within the meaning of Article 160 of the Civil Code.

The judgment appealed from is amended to provide that Mr. Hamilton pay the medical expenses of his minor child, and as amended it is affirmed, at the cost of Mrs. Hamilton.

AMENDED AND AFFIRMED.


author: COLE, Judge.

text:
    Renita GARRISON v. The CITY OF BERWICK, et al.
    No. 14916.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1982.

      Dennis Jude Dannel, New Orleans, for plaintiff.
    Dennis L. Doise, Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell, Lafayette, for Town of Berwick, City Police Dept., Ivory Thomas, and Carl Thornton, defendants.
    Gregory P. Aucoin, Morgan City, for Warren James, Jr., defendant.
    Before COVINGTON, COLE and WATKINS, JJ.
   COLE, Judge.

This case involves injuries sustained by plaintiff Renita Garrison while she was in the custody of Berwick police officers. The facts are as follows.

On April 29, 1979, an argument arose between Warren James, Jr., and his wife’s sister, Renita Garrison. Garrison allegedly fired several shots in James’ direction as he stood in front of Shirley Williams’ house. (Mrs. Williams is Ms. Garrison’s mother.) James then left the premises and went to his home where he obtained a gun. He returned to Mrs. Williams’ house, fired one shot in the air and yelled for Renita to come out. Two officers from the Berwick Police Department arrived at the scene and found James standing in front of the house with his gun in his belt. James refused to hand his gun to the officers until the officers disarmed Garrison. One of the officers, Ivory Thomas, entered the house and found Garrison “in a rage.” She seemed to be arguing with her brother and his girlfriend about using her brother’s gun. Officer Thomas attempted to restrain Garrison and she tried to remove his gun from his holster. Officer Thomas managed to place the handcuffs on one arm and then called for Officer Thornton to help him. Officer Thornton was unable to enter the residence because of someone or something blocking the door, but finally managed to force his way in. He helped Officer Thomas handcuff Garrison and the three of them left the residence. Ms. Garrison continued to struggle as she was moved forceably toward the police car. She was arrested for disturbing the peace.

Officer Thornton testified a crowd of approximately forty persons had gathered outside. Most were neighbors from the surrounding buildings in the housing project. Some were rather hostile and at least one tried to interfere with the officers putting James in the police car. James told the officers he did not want to be handcuffed but would go voluntarily with them to the police station. Officer Thornton testified that because of the hostile nature of the rather large crowd he felt it was in the best interest of all for him to avoid delay and therefore allow James to get into the police car even though he was not handcuffed. James and Garrison were placed in the back seat of the vehicle.

Testimony established the ride from the scene of the arrest to the police station was approximately five minutes long. Several blocks from the Williams’ house the officers became aware James and Garrison were arguing in the back seat. Garrison was ridiculing James about his sex life and repeating disparaging remarks allegedly made by her sister and his wife, Regina. James testified Garrison was also spitting on him and kicking him. James announced he was going to hit Garrison if she didn’t leave him alone. Officer Thornton then stopped the car and announced to Officer Thomas he was going to attempt to handcuff James. Officer Thomas advised Thornton to proceed to the police station because six or seven cars containing Garrison’s neighbors were following close behind. The car continued on but shortly thereafter James struck Garrison in the face. The car was stopped immediately and the two arres-tees were separated. James’ father was following in a nearby car and volunteered to take his son to the police station. Garrison’s left eye was wounded and required four or five stiches.

Plaintiff filed suit against the City of Berwick, Officer Ivory Thomas, Officer Carl Thornton, and Warren James, Jr., alleging her left eye had been injured and she had suffered a recurrence of epileptic seizures which had been in a dormant stage for several years prior to the accident.

A jury trial was held and judgment was rendered in favor of the City of Berwick and the two police officers and against Re-nita Garrison. Judgment was rendered in favor of Garrison and against Warren James, Jr., in the amount of $500. Ms. Garrison then filed this devolutive appeal. Mr. James did not appeal.

Appellant contests the jury’s findings as to the liability of Officer Thornton, Officer Thomas and the City of Berwick. She also alleges the award of $500 was insufficient and that the court erred in denying her motion for a new trial.

We find no manifest error in the jury’s determination that Officers Thornton and Thomas were free of fault. A police officer must do only what is reasonable under the circumstances and he is liable only for a certain category of risk to which his prisoners may be subjected. Griffis v. Travelers Insurance Company, 273 So.2d 523 (La.1973).

The totality of the facts in the present case suggest the two police officers acted reasonably under the circumstances. At the scene of the arrest they were concerned with detaining two persons: Renita Garrison and Warren James, Jr. Garrison was extremely agitated, both physically and emotionally, during the entire incident. Testimony established Officer Thomas found her in a heated dispute with persons inside the house when he entered. He found it necessary to handcuff her, an act which she violently resisted. She then attempted to grab his gun. It took both police officers to handcuff her and to remove her from the house. She continued to struggle as she was taken to the police car. Once in the car she began the physical and verbal harrassment of Warren James, Jr. Even after the subjects were separated she spit on Officer Thomas as she was being removed from the car outside the police station.

The other arrestee, Warren James, Jr., was found initially standing calmly outside the house. Although at first he refused to hand over his gun he did so later voluntarily. He remained outside the house while both police officers were dealing with Ms. Garrison inside. He did not attempt to flee or to avoid arrest in any manner. He voluntarily put himself into the police car but insisted he not be handcuffed. The record indicates a large crowd had gathered in the yard and an atmosphere of hostility prevailed. At least one member of the crowd attempted to prevent Officer Thornton from arresting and taking Warren James, Jr. Officer Thornton testified the situation gave him no choice but to allow James to get into the car without handcuffs. Under the circumstances we cannot say the officers acted unreasonably. The following testimony by Officer Thornton sheds light on the issue:

“Q: Now why didn’t you handcuff Mr. James?
A: Well as I stated before, Mr. James voluntarily and willingly went to the vehicle, he knew he was under arrest; no problems. The fact that two officers were involved and in excess of forty or fifty people; the cursing, screaming, hollering and the fact that it was turning into what I consider a bad situation due to the fact that there were only two police officers as opposed to forty or fifty people, there could have been a violent situation.”
“Q. .. . Now, how long would it take you to have handcuffed Warren James, Jr.?
A: Under those circumstances and the situation around, to be perfectly honest, in my opinion, we would never have got him handcuffed.”

In summary the police officers made a reasonable decision to handcuff the hostile arrestee and to allow the other arrestee to remain without handcuffs due to his comparatively cooperative nature and the need to get away from the increasingly hostile crowd.

Concerning the reasonableness of the officers’ action in the police car while en route to the station, we note Officer Thornton made an initial attempt to prevent the harm but was convinced by his coworker that to do so would endanger their safety. The officers instructed James not to strike Garrison and to remain calm. As soon as James hit Garrison the car was stopped and the subjects were separated. Taken as a whole we find the officers acted reasonably under the circumstances.

Further, -'we cannot say the policemen breached any duty owed Renita Garrison. In Griffis, supra, the Supreme Court refused to hold police officers had a duty to an intoxicated prisoner to save himself from the risk he would start a fire in his cell while in a drunken rage. Likewise, we decline to hold these officers had a duty to Garrison to protect her from the risk of being struck by another arrestee after she had kicked, cursed, and spit at him. Certainly our analysis would be different if the record showed James was the aggressor while Garrison sat handcuffed and unable to defend herself. To the contrary, the record indicated clearly Garrison was the instigator of the back seat altercation.

Because we agree with the jury Officers Thomas and Thornton are not liable, we necessarily conclude the City of Ber-wick, sued under the doctrine of respondeat superior, is also not liable.

We note the facts presented by Officers Thomas, Officer Thornton and Warren James, Jr., are quite diametrically opposed to those presented by Renita Garrison and by other witnesses testifying for her. Garrison and her witnesses insisted she never had access to a gun, that she was upset during the incident but not nearly as violent as the police officers and James described her, and that James began hitting her even before she got into the police car. Renita testified the reason she kicked James in the car was because he first poked her in the nose.

The testimony of the police officers and James was corroborated by that of a neighbor, Herman Kleinman. Kleinman watched the incident from his bedroom window. He stated he heard shots and looked out the window and saw James leaving the scene. Fifteen minutes later he heard more shots. He stated Garrison resisted getting into the police car and that the crowd was hostile toward the policemen.

As always, in matters of credibility, the fact finder is given a great deal of discretion. In this case the jury was able to observe the demeanor of the witnesses and make an accurate evaluation as to which parties were the most credible. Where evidence is conflicting we should not disturb the fact finder’s reasonable evaluation of one set of witnesses as credible and its consequent rejection of testimony of the opposing set of witnesses; nor should we disturb the jury’s reasonable factual inferences drawn from testimony found by it to be credible. Billiot v. Bourg, 338 So.2d 1148 (La.1976). After reviewing the record we conclude there is no justification for disturbing the jury’s findings as to credibility.

Concerning the quantum, after reviewing the record we find the award of $500 was within the discretion of the jury. The jury obviously did not find plaintiff to have proven by a preponderance of the evidence her epileptic seizures recurred as a result of the assault. Therefore, the only injury for which they granted an award was her “black eye” and the laceration on her face. We find no abuse of discretion in awarding $500 for these injuries. La.C.C. art. 1934(3).

Appellant contends her motion for a new trial should have been granted. At trial, Regina James, testified initially she had not seen Renita with a gun. The next day she changed her testimony and admitted she had lied previously because she had “been in an awkward position” living with her mother and sister. She then testified Garrison did have a gun on the evening in question and had shot at Warren James, Jr. In the motion for a new trial appellant contends a “representative of the City of Berwick” had approached Regina after the first testimony and had threatened her with a jail sentence for perjury if she did not change her testimony. The trial court denied the motion for a new trial.

We find no abuse of discretion in the trial court’s denial. The issues at trial were whether or not the policemen (and the police department) were liable for their failure to handcuff and restrain Warren James, Jr., and whether or not Warren James, Jr., was liable for his intentional attack. The question of whether or not Renita Garrison was seen with a gun during the dispute has little or no bearing on either of these issues. Even if we were to concede Garrison was not seen with a gun on the night in question we would not conclude the jury verdict was incorrect as to the final outcome of the case. Her possession of a gun simply does not affect our findings as to liability of the policemen or of Warren James, Jr. Therefore, we are in complete agreement with the trial court that the discovery of this “new evidence” did not warrant the granting of a new trial.

For the foregoing reasons, the judgment of the trial court is affirmed. Appellant is to pay all costs.

AFFIRMED.

      . Virtually all facts concerning the argument and the subsequent course of events were disputed at trial. We will set forth the version which the jury apparently found to be the most credible.

      . The correct name of the municipality is the Town of Berwick.

      . Officer Thornton is white, Officer Thomas and all others involved are black.

      . Other witnesses who corroborated Renita’s version of the events were her brother, Reginald Augman, his girl friend, Yvette Vilo, and her mother, Shirley Williams.


author: EDWARDS, Judge.

text:
    In the Matter of the SUCCESSION OF Malinda Sterling LEE.
    No. 14920.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1982.

      Johnnie A. Jones, Baton Rouge, for defendants-appellees.
    Hamilton Barrow Willis, Wakefield, for plaintiffs-appellees.
    Before LOTTINGER, EDWARDS and SHORTESS, JJ.
   EDWARDS, Judge.

This is an intervention brought by the alleged natural children of the late Willie Lee in the Succession of Malinda Sterling Lee, No. 896 (Probate), Twentieth Judicial District Court, Parish of West Feliciana. The intervenors claim a portion of the proceeds of an alleged sheriff’s sale of property belonging to the succession of Willie Lee’s mother, the late Malinda Sterling Lee. The sheriff’s sale took place in a separate proceeding for partition by licitation brought before the same Twentieth Judicial District Court, Parish of West Feliciana. The trial court found the intervenors had no right to a portion of the proceeds because of the effect of judgments of possession in the Succession of Malinda Sterling Lee, No. 436 (Probate), in West Feliciana Parish (an earlier proceeding), and the Succession of Cary (Carey) Lee, No. 18,477 (Probate) in East Baton Rouge Parish, respectively. However, the proceedings in No. 436 are not in the record, and only an unverified and unsigned copy of the judgment of possession in the Succession of Cary (Carey) Lee is in the record. The present intervention was filed in a second Succession of Malinda Sterling Lee, No. 896 (Probate) of West Feliciana Parish, in which succession proceeding there is a petition for possession to which is annexed an unsigned affidavit of death and heirship naming heirs in a matter somewhat inconsistent with No. 436, and in which proceeding no judgment of possession was ever rendered. In written reasons for judgment, the trial court mentions Suit No. 5440 (Civil), West Feliciana Parish, the suit for partition by licitation, and mentions further a judgment in Suit No. 5440 (Civil) homologating a proposed distribution of funds obtained in a sheriff’s sale effected in the partition proceeding, but neither that judgment nor the record in Suit No. 5440 (Civil) was made a part of the present proceeding. Furthermore, as we have indicated, no signed judgment of possession in either the Succession of Malinda Sterling Lee or the Succession of Cary (Carey) Lee is in the record.

It is impossible for us to review the case properly on appeal without having available to us the following entire records:

No. 436 (Probate), Twentieth Judicial District Court, West Feliciana Parish No. 5440 (Civil), Twentieth Judicial District Court, West Feliciana Parish No. 18,477 (Probate), Nineteenth Judicial District Court, East Baton Rouge Parish

The judgment was rendered upon an incomplete record, and must be vacated and set aside.

We, therefore, vacate and set aside the trial court’s decision and remand the case to the trial court to decide the case on the basis of a record prepared as outlined herein. All costs shall await a final disposition of the matter.

JUDGMENT VACATED AND CASE REMANDED.


text:
    Arthur KLEINER and Richard A. Kleiner v. Laura Elizabeth Rist, wife of/and George Jules CIKO.
    No. 14921.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1982.
    Writ Denied Oct. 1,1982.
    Joe Anderson, Slidell, for plaintiffs, ap-pellees.
    Robert J. Caluda, New Orleans, for defendants, appellants.
    Before ELLIS, PONDER and SAVOIE, JJ.
   ELLIS, Judge:

This is a suit by Arthur Kleiner and Richard A. Kleiner against Laura Elizabeth Rist, wife of, and George Jules Ciko, to set aside a sale from their deceased mother, Anne Elizabeth Daws Kleiner, to Mr. and Mrs. Ciko. On the day fixed for the trial, June 22, 1979, the following colloquy took place in open court:

“Mr. Anderson: ‘May it please the Court, Your Honor, the parties in this matter, entitled Kleiner versus Ciko, number 52,849 of the docket of this Court, have reached a settlement accordingly. Arthur and Richard A. Kleiner shall pay to Elizabeth Risk, wife of and George J. Ciko, the sum of thirteen thousand dollars in cash in consideration of the transfer by Mr. and Mrs. Ciko to them of the property forming the subject of this lawsuit.’
“The Court: ‘Who is to bear the cost?’
“Mr. Anderson: ‘The cost of this proceeding will be borne by the respective parties, as the costs were incurred. The costs of the act of sale transferring the property will be borne by the Kleiners. All costs of the act of sale.’
“The Court: ‘Is that the settlement that has been reached, Mr. Fritehie?’
“Mr. Fritehie: ‘That is correct, Your Honor.’
“The Court: ‘Let that settlement then be made the judgment of this Court.’ ”

Apparently, Mrs. Ciko was not pleased with the settlement, and so advised her daughter, who, in turn, consulted an attorney other than the one who represented Mrs. Ciko at the time of the above settlement. The second attorney wrote a letter to Joe Anderson, who represented the Kleiners, advising him of his representation of Mrs. Ciko, and stating that she' “has rejected the settlement offered.” Mr. Anderson received the letter on July 6,. 1979.

Thereafter, Mr. Anderson prepared a judgment based on the above settlement, and presented it to the trial judge, making a full disclosure of the circumstances above outlined. On the morning of July 9, prior to the time the judgment was signed, Mr. Anderson encountered the Cikos’ original attorney, but did not mention to him that he was going to try to have a judgment signed. After a new trial was denied, Mr. and Mrs. Ciko filed a petition for the nullity of the judgment signed by the trial judge, based on the allegation that the judgment was based on an oral compromise, which had been rescinded by Mrs. Ciko, and that Mr. Anderson was aware of the rescission. The petition was later amended to add the allegation that Mrs. Ciko was not capable of giving informed, knowing and intelligent consent to the compromise.

After trial on the merits of the nullity petition, judgment was signed rejecting the demands of Mr. and Mrs. Ciko, and they have appealed.

In this court, defendants allege that the trial judge erred in finding that there was a binding compromise as a result of the settlement reached on the trial date; that the court erred in finding that the circumstances under which the judgment was signed did not constitute ill practices; that the trial court erred in finding that Mrs. Ciko was competent to enter into a compromise; and that this nullity action is not barred by a “judicial confession” as a result of the minute entry made of the compromise agreement.

Defendants urge the nullity of the judgment on two basic grounds: first that the judgment was obtained by fraud or ill practice on the part of plaintiffs’ attorney in the manner in which he had the judgment signed after learning that defendants had withdrawn their consent to the settlement; and ill practice on the part of the trial judge in signing the judgment, rendering the judgment null under Article 2004 of the Code of Civil Procedure.

Second, it is argued that the judgment is null because rendered against an incompetent, under Article 2002 of the Code of Civil Procedure.

The first legal issue presented is whether or not the colloquy in open court on June 22, 1979, resulted in a confession of judgment, binding on all parties, or was a compromise, revocable by any party because not reduced to writing and signed.

Article 2291 of the Civil Code provides: “The judicial confession is the declaration which the party, or his special attorney in fact, makes in a judicial proceeding.
“It amounts to full proof against him who has made it.
“It can not be divided against him.
“It can not be revoked, unless it be proved to have been made through an error in fact.
“It can not be revoked on a pretense of an error in law.”

In Martin v. Holzer Sheet Metal Works, Inc., 376 So.2d 500 (La.1979), the court said:

“A confession of judgment precluding an appeal need not be in writing or in a particular form. It must, however, consist of an admission by a party in the proceedings in the trial court of the validity of his opponent’s claim in such a way as to leave no issue to be tried.”

In the Martin case, the court stated that it was called upon to decide whether oral consent to judgment in open court constitutes a confession of judgment. In that case, a settlement was reached before trial, and the trial judge dictated the terms of the judgment agreed to into the record, with all counsel assenting thereto for the record. The court found that these circumstances were sufficient to constitute a confession of judgment, rendering the case not appealable under Article 2085 of the Code of Civil Procedure.

In the later case of Bourgeois v. Franklin, 389 So.2d 358 (La.1980), the court expressed the problem facing it as follows:

“In a tort suit, where the attorneys for plaintiff and defendant, ostensibly with the assent of their respective clients, recite in open court the fact and amount of a compromise settlement without having reduced it to writing, may one of the parties thereafter enforce the settlement?”

In the Bourgeois case, the attorneys recited in open court the terms of a compromise reached between their clients. However, no judgment, oral or written, was rendered. The court found that the compromise was unenforceable because not reduced to writing and signed, as required by Article 3071 of the Civil Code.

In reaching its conclusion, the court distinguished the Martin case, supra, on the ground that “the trial judge, in open court, recited an oral judgment into the record, fully and specifically assented to by the parties.” The court further stated:

“It was argued in Martin that the statements made in open court simply amounted to a compromise and thus under La. Civ.Code art. 3071 must be in writing to be binding. The Court rejected that argument finding that what had transpired in open court was more than simply an agreement of compromise. It was, rather, a confession of judgment. In pointing to the distinctions between C.Civ.P. art. 2085, the confession of judgment provision, and La.Civ.Code art. 3071 concerning the writing requirements for settlements, the Court said, ‘this article [La. Civ.Code art. 3071] is placed in the code to insure proper proof of extrajudicial agreements and does not apply to a confession of judgment during proceedings in court.’ Of course the in-court memori-alization by counsel of an agreement of settlement is nonetheless extrajudicial in the sense that judgment of the court is not invoked.”

It is clear that, in this case, the judgment of the court was invoked. The terms of the settlement were clear and were assented to by both parties. Under those circumstances, we find that there was a judicial confession of judgment, binding on both parties, either of whom was entitled to have a written judgment signed. We therefore find no ill practice on the part of plaintiffs’ attorney, or on the part of the court in signing the judgment.

Article 2002 provides, in part:

“A final judgment shall be annulled if it is rendered:
“(1) Against an incompetent person not represented as required by law;”

The standards for measuring incompetency are found in Articles 1788 and 1789 of the Civil Code, which provide:

Art. 1788. “The contract, entered into by a person of insane mind, is void as to him for the want of that consent, which none but persons in possession of their mental faculties can give. It is not the judgment of interdiction, therefore, that creates the incapacity; it is evidence only of its existence, but it is conclusive evidence, and from these principles result the following rules:
* * its * * *
“4. That, except in the case of. death hereafter provided for, no suit can be brought, nor any exception made, to invalidate a contract on account of insanity, unless judgment of interdiction be pronounced before bringing the suit, or at least applied for before making the exception.”
* * * * * *
Article 1789. “A temporary derangement of intellect, whether arising from disease, accident or other cause, also creates an incapacity pending its duration, provided the situation of the party and his incapacity were apparent.”

The evidence offered in support of the claim of incompetency is that of several physicians, who stated that Mrs. Cikd’s mental capacity was impaired because of certain drugs that she was taking for a heart condition. None of them could state, with any certainty, what her mental status was on June 22, 1979.

However, there is nothing to show that Mrs. Ciko has been interdicted, or that her alleged incompetency was apparent or notorious. Mrs. Ciko therefore does not fall within the ambit of either of the above two articles. See First Nat. Bank of Shreveport v. Williams, 346 So.2d 257 (La.App. 3rd Cir. 1977); Stevenson v. Beneficial Finance Co. of Hammond, 295 So.2d 880 (La.App. 1st Cir. 1974). The trial judge properly found that Mrs. Ciko failed to carry her burden of. proving her incompetency.

The judgment appealed from is therefore affirmed, at the cost of Mr. and Mrs. Ciko.'

AFFIRMED.


text:
    Lester L. BARBIER v. Ida Lamotte BARBIER.
    No. 14924.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1982.
    Raymond L. Simmons, Baton Rouge, for plaintiff-appellant Lester L. Barbier.
    Mary Olive Pierson, Baton Rouge, for defendant-appellee Ida Lamonte Barbier.

      Before COVINGTON, COLE and WATKINS, JJ.
   COLE, Judge.

We are faced here with a single issue. Did the trial court err in granting an increase in child support payments? Because we find the wife failed to prove there was a change in circumstances justifying such an increase, we reverse the judgment of The Family Court.

In April of 1980 plaintiff, Lester L. Bar-bier, filed for a legal separation on the ground of abandonment. His wife, Ida La-motte Barbier, reconvened, seeking a separation on the ground of cruel treatment. Judgment was granted in her favor on June 5, 1980, and child support was set at $200 a month. Mrs. Barbier later filed a petition for divorce and a rule to have the alimony increased to $500 a month. After a hearing on the rule, The Family Court increased the amount of child support to $300 a month, effective July 1, 1981. It is from this judgment Mr. Barbier appeals.

It is well settled that in order to modify the amount of child support the moving party must prove a change in circumstances of one of the spouses. Blondeau v. Blondeau, 396 So.2d 403 (La.App. 1st Cir. 1981). After examining the record we conclude Mrs. Barbier failed in her burden of proof.

Three expense statements were filed into evidence. Two showed Mr. Barbier’s income and expenses (as of June 1980 and June 1981). The third was a statement showing Mrs. Barbier’s income and expenses, dated March 1980 and filed into evidence in June of 1980. At the trial on the rule (in June 1981) Mrs. Barbier referred to another expense statement but no such document was filed into evidence.

At the time the support payments were originally set, Mrs. Barbier’s expense statement showed monthly expenses in the amount of $1,585.00. At the hearing on the rule she testified her expenses were then $1,557.00, a reduction of almost $30.00 a month. Her salary earned as an instructor at Southern University, was approximately the same in June 1981 as in June of 1980. In addition, she stated she had been working at a part-time job daily since August of 1980, although she did not state how much total income she earned from that job. Therefore, we conclude Mrs. Barbier was making at least the same salary, if not more, in June of 1981 as in June of 1980.

The only direct testimony concerning a change in circumstances is as follows:

“Q. All right. Would you tell the court, before we describe your actual expenses, in what way they have increased and what things you’re going to have to do for the children that you can’t do now?
A. They have increased inasmuch as food has gone up and now they are home that is three meals a day during the summer. During school they would get one there. Clothing has gone up. Transportation, I have to drive them around. Gas has gone up. Everything is just skyrocketing. And the older the kids get the more they need.”

While we can sympathize with Mrs. Barbier as to the general increase in prices, a cost of living increase alone is not sufficient cause for an increase in child support payments because any cost of living affects both parties. Ducote v. Ducote, 339 So.2d 835 (La.1976), rehearing denied 1976; Fakouri v. Perkins, 322 So.2d 401 (La.App. 3d Cir. 1975).

Concerning Mr. Barbier’s circumstances, the record does not reflect any substantial change there. Although his monthly net income is a bit more in 1981 than in 1980 (approximately $54 a month more), his expenses have increased substantially.

Appellee does not contend strongly she has proven a change in circumstances but instead points out the trial court is granted much discretion in the area of credibility of witnesses. The gist of her argument is that since the trial court believed Mrs. Barbier’s statement that the children needed more money, we should not disturb this finding.

We do not see the issue as one of credibility, but as one of proof. This issue is whether or not Mrs. Barbier proved there had been a change in circumstances so as to warrant an increase in the child support payments. Appellee simply stated things cost more and her children needed more. These general allegations do not establish a significant change in circumstances, therefore, we reverse the judgment of The Family Court. Appellee is to pay costs.

REVERSED.

      . The June 1980 statement shows a monthly net salary of $1,130. This was apparently for a nine month period. She testified at the hearing her net income was at that time $859 for nine months, and $729 during the three summer months. Adding the last two figures together, it seems her net salary is about $250 a year less than what she stated on her expense statement. This descrepancy is not explained in that Mrs. Barbier testified she was still working at the same job and she does not contend her salary has been lessened in the interim year.


author: COVINGTON, Judge.

text:
    Arnold Leland STEWART v. John Hans GOEB, et ux.
    No. 14935.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1982.
    A. Wayne Buras, Covington, for plaintiff, appellant.
    L. Jay McCreary, Slidell, for defendant, appellee.
    Before COVINGTON, COLE and WATKINS, JJ.
   COVINGTON, Judge.

This is a devolutive appeal taken by Arnold Leland Stewart from a judgment of the district court which maintained a peremptory exception of prescription. Mr. Stewart had brought suit to annul the adoption of his children by his former wife’s husband, John Hans Goeb. The suit was filed on January 27, 1981. The defendants, John Hans Goeb and Susan Stewart Goeb, had obtained a final decree of adoption on December 11, 1978, in the Twenty-second Judicial District Court, Parish of St. Tammany, Louisiana. Mr. Stewart was represented therein through an attorney ad hoc appointed by the district court. To the present action, the defendants filed an exception of prescription pursuant to LSA-R.S. 9:44o. Both parties filed memorandums in support of their respective positions. After hearing, the trial court maintained the exception of prescription. Mr. Stewart applied to this Court for writs, which were refused on the ground that the applicant had an adequate remedy by appeal. Then Mr. Stewart devolutively appealed the judgment. We affirm.

The express language of LSA-R.S. 9:440 precludes any action brought to annul a final decree of adoption rendered prior to September 7, 1979 (as the instant decree was, December 11, 1978), no matter what the ground or the reason, after a lapse of six months from September 7, 1979. This suit was filed on January 27, 1981, so more than six months have elapsed. The appellant’s action is thus barred. See Succession of Pizzillo, 223 La. 328, 65 So.2d 783 (1953). Regardless of the basis for Mr. Stewart’s attack upon the adoption decree (his claim is that it was fraudulently obtained), such an action no longer exists; a lapse of the statutory period operates as an extinguishment of the right. The provisions of LSA-R.S. 9:440 are clear and unequivocal. All adoptions made prior to this statute are validated after a specified period of time. Therefore, after the time period (six months) had lapsed, the adoption decree involved in the case at bar was immune to attack. Consequently, we affirm the judgment of the trial court at appellant’s costs.

AFFIRMED.

      . LSA-R.S. 9:440 provides:
      “No action to annul a final decree of adoption rendered prior to July 31, 1974, for any reason, may be brought. No action to annul a final decree of adoption rendered prior to September 7, 1979, for any reason, shall be brought after a lapse of six months from September 7, 1979.” (Amended by Acts 1974, No. 147, § 1; Acts 1979, No. 686, § 3.)


author: DOMENGEAUX, Judge.

text:
    Valentine Guidry STRAUSS, Plaintiff-Appellant, v. ALLSTATE INSURANCE COMPANY, Defendant-Appellee.
    No. 82-26.
    Court of Appeal of Louisiana, Third Circuit.
    July 2, 1982.

      Pucheu, Pucheu & Pucheu, Jacque B. Pu-cheu, Sr., Eunice, for plaintiff-appellant.
    Davidson, Meaux, Sonnier & Roy, L. Lane Roy, Lafayette, for defendant-appellee.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   DOMENGEAUX, Judge.

Plaintiff, Valentine Strauss, instituted this action against defendant, Allstate Insurance Company (Allstate) for uninsured motorist benefits. Plaintiff contends that on June 28, 1977, at approximately 9:20 P.M. she was driving an automobile, owned by her employer and insured by Allstate, in a northerly direction on Louisiana Highway 13 between Crowley and Eunice, Louisiana. She claims that while on this deserted stretch of highway the car she was driving was struck or sideswiped by a pickup truck. Plaintiff further alleges that the impact of the two vehicles resulted in her losing control of her automobile which caused her to run off the road and hit a tree, severely injuring herself. There were no witnesses to the accident. Plaintiff brought this suit against Allstate under the hit and run clause of the uninsured motorist provision of its insured’s policy. Allstate answered denying any liability, claiming that there was no other automobile or pickup truck involved in this accident. Allstate contends that the accident involved only plaintiff’s vehicle and was caused solely by the negligence of plaintiff. After trial by jury, by unanimous verdict in general form, the jury found in favor of Allstate and dismissed plaintiff’s claim. Subsequently, plaintiff’s motion for a new trial was denied. This appeal followed. We affirm.

On appeal plaintiff contends:

1. The jury erred in rendering judgment in favor of defendant, because the law and evidence proved that plaintiff was entitled to recover.

2. The trial court erred in not properly instructing the jury.

3. The trial court erred in not granting plaintiff a new trial.

JURY’S FINDING OF FACT

It is axiomatic that when 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, on review the appellate court should not disturb this factual finding in the absence of manifest error. Having closely reviewed the record before us, we find no manifest error on the part of the jury in its verdict dismissing plaintiff’s action.

At trial plaintiff, her sister, and plaintiff’s employer (the car’s owner), testified in support of plaintiff’s version of the accident. Plaintiff testified that soon after she entered onto Louisiana Highway 13 she noticed a pickup truck, driven by an unknown male, following her. She claims that as she continued towards Eunice this unidentified male started talking with her on the CB radio suggesting that she pull off the road so he could have a love affair with her. Plaintiff contends that she then turned her CB radio off, and shortly thereafter the pickup truck pulled alongside her, cut to his right, and bumped plaintiff’s automobile off the road.

Plaintiff’s sister and employer to some extent corroborated plaintiff’s version, over the objection of Allstate based upon what plaintiff had told them at the hospital approximately one to two hours after the accident. Generally they claim that plaintiff informed them that she was run off the road by a truck. Plaintiff, plaintiff’s daughter, and plaintiff’s sister all testified that plaintiff had only one drink prior to departing for her trip back home from Crowley to Eunice.

Conversely, Allstate introduced evidence which strongly suggests that there was no other vehicle involved in this accident, and that plaintiff was intoxicated. The investigating officer of the State Police, Joseph Wiggins, testified that in his opinion plaintiff’s vehicle was not hit or sideswiped prior to departing the highway. According to Officer Wiggins, although plaintiff’s vehicle was heavily damaged there was no evidence which seemed to indicate the involvement of another vehicle in this accident. His opinion is largely premised upon the fact that there were no paint scratches on plaintiff’s automobile nor was there any debris at or around the alleged point of impact on the highway. Officer Wiggins further testified that plaintiff had a strong smell of alcohol on her breath. Ricky Spell, of the Crowley Fire Department, and Danny Wim-berly, of the Acadia Parish Sheriff’s Office, were also present at the scene of the accident. They both testified that plaintiff had a very noticeable smell of alcohol on her breath. Obviously, the jury gave greater weight to the testimony solicited from defendant’s witnesses which is well within their discretion. We find no manifest error in their verdict.

JURY INSTRUCTIONS

The jury instruction which plaintiff suggests is erroneous provides as follows:

“... In a case such as this where the Plaintiff has sued on an uninsured motorist claim, the insurance company, in this case Allstate Insurance Company, is not the insurer of the party alleged to be responsible for the accident; and the Plaintiff in this case cannot recover unless she can show that someone other than herself is responsible for the accident which is the subject of this lawsuit, and that she was not guilty of contributory negligence which contributed proximately to the accident and further, there’s coverage under the uninsured motorist portion of Allstate. If there was no impact between the vehicles, there is no coverage on the part of Allstate Insurance Company.”

Plaintiff suggests that the first part of this instruction is erroneous because under an uninsured motorist claim the insurance company “is the insurer” of the party alleged to be responsible for the accident. We disagree.

The primary purpose of uninsured motorist coverage is to give additional protection to insured persons who are damaged as a result of an accident with an uninsured, under-insured, or hit and run motorist. The uninsured motorist coverage contained in an automobile liability policy is designed for protection of the insured and not for the protection of the uninsured motorist. Booth v. Fireman's Fund Insurance Company, 207 So.2d 925 (La.App. 2nd Cir. 1968); affirmed 253 La. 521, 218 So.2d 580 (1968).

Secondly, plaintiff contends that the second part of the above quoted instructions suggests a duty upon plaintiff to prove that she was not contributorily negligent rather than requiring defendant to prove plaintiff’s contributory negligence. Taken out of context we can see how one might interpret this charge as plaintiff suggests. However, in the charges preceding the challenged instruction, the trial judge unequivocally instructed the jury that defendant bears the burden of proving contributory negligence as follows:

“ ‘Contributory negligence’ is a fault on the part of the person injured which, cooperating in some degree with the negligence of others, helps in causing the accident and bringing about the injury. When the Defendant pleads the contributory negligence of the Plaintiff, the burden of proof is upon the Defendant to prove contributory negligence by a preponderance of the evidence that the Plaintiff was at fault, and such fault was a proximate cause of the injury. Thus, if you find Plaintiff was contributorily negligent in this accident and this negligence constituted a proximate cause of the accident, the Plaintiff would be prevented from recovering.”
******* “The fact that a motorist involved in an accident was speeding or intoxicated does not in and of itself require a finding of liability. The Defendant bears the burden of proving contributory negligence. The Defendant, Allstate Insurance Company, must prove to the jurors that the Plaintiff was intoxicated and the intoxication was a contributory cause of the accident.”

When read in context with the antecedent charges on contributory negligence, we feel that the jury instruction plaintiff complains of does not suggest that the plaintiff bears the initial burden of proving her lack of contributory negligence. Taken in context, this charge merely instructs the jury that once defendant has proven plaintiff guilty of negligence amounting to contributory negligence, it then becomes incumbent upon plaintiff to absolve herself from any fault which contributed proximately to the accident.

DENIAL OP PLAINTIFF’S MOTION FOR A NEW TRIAL

In her motion for a new trial plaintiff raised numerous assignments of error. After a hearing on the motion the trial judge denied plaintiff’s request. Plaintiff now appeals the trial judge’s denial alleging the same assignments of error. Although we find that the able trial judge acted well within his discretion and committed no manifest error in denying plaintiff’s motion, we feel some of plaintiff’s allegations merit discussion by this court; namely:

1. The propriety of allowing the introduction of hospital records into evidence when as plaintiff contends he did not have the opportunity to cross-examine the record preparer;

2. The alleged discriminatory and prejudicial remarks made by one of the jurors during deliberation; and

3. The allegation alleging the incompetency of one of the jurors based upon his inability to read and write.

Plaintiff argues that the records of the Lafayette Charity Hospital were erroneously allowed to be read to the jury and introduced into evidence despite plaintiff’s objection and despite the fact that the person who made the record was unavailable to testify under cross-examination. Plaintiff cites La.R.S. 13:3714 in support of her proposition which provides:

“Whenever a certified copy of the chart or record of any hospital in this state, signed by the administrator or the medical records librarian of the hospital in question, is offered in evidence in any court of competent jurisdiction, it shall be received in evidence by such court as prima facie proof of its contents, provided that the party against whom the record is sought to be used may summon and examine those making the original of said record as witnesses under cross-examination.”

From a reading of this statute it is clear that the hospital record was admissible as prima facie proof of its contents. The record was duly certified by the proper authority, and the only right plaintiff had once the document was admitted into evidence was to cross-examine the party who made it. Plaintiff had every opportunity to have summoned to court as a witness the preparer of the record. Plaintiff apparently chose not to do so until trial, at which time an instanter subpoena was issued, but the record’s preparer was on vacation and unavailable for trial. Plaintiff had every opportunity to make preparations for this and did not. Under these circumstances, we find no error in allowing the introduction of the hospital records into evidence.

Plaintiff next complains that a new trial should be granted because of discriminatory and prejudicial remarks made by one of the jurors during deliberation. Plaintiff claims that one of the jurors “told her” that another juror made racial ‘slurs’ directed at plaintiff during deliberations.

Plaintiff introduced a statement, in affidavit form, in support of her claim. The statement, however, is not an affidavit since it is not based on plaintiff’s personal knowledge, but rather on hearsay. Furthermore, even if the claimed affidavit by plaintiff was correct it would be inadmissible. Our courts have long held that affidavits of testimony of jurors to impeach their own verdict or to show on what grounds it was rendered, is inadmissible. Renz v. The Texas & Pacific Railway Company, 138 So.2d 114 (La.App. 3rd Cir. 1962); Dieu-donne v. Guidry, 336 So.2d 990 (La.App. 3rd Cir. 1976); Washington v. Lake City Beverage, Inc., 352 So.2d 717 (La.App. 3rd Cir. 1977); writ refused 354 So.2d 1050 (La. 1978). We feel the trial judge was correct in refusing to grant a new trial on these grounds.

Finally, plaintiff suggests that one of the jurors could not read or write, and therefore he was incompetent to serve on the jury. We find this contention is without merit.

At a hearing on plaintiff’s motion for a new trial Donald Goodwin, the juror in question, indicated his ability to read and write. He testified that he had an eight grade education, and, although he was very deficient in reading and writing skills, he was able to read and write on a limited basis. When questioned by the trial judge Mr. Goodwin testified that he understood the jury verdict, and that he had voted against plaintiff’s recovery. It is well settled that it is not necessary for a juror’s competency that he should be a scholar. It is sufficient if he can understand the witness and argument of counsel. The competency of a juror is a matter to be determined in the sound discretion of the trial judge. State v. Casey, 44 La.Ann. 969, 11 So. 583 (1892). We find no abuse of discretion in the trial judge’s findings that Mr. Goodwin was qualified to serve as a juror in this case.

For the above and foregoing reasons the judgment of the district court is affirmed at appellant’s costs.

AFFIRMED.

      . The testimony of plaintiffs sister and plaintiff’s employer concerning statements plaintiff made at the hospital of her accident was allowed under the res jeste exception to the hearsay rule. The issue of the admissability of these statements is not before us, therefore we refrain from any discussion thereon.


author: CULPEPPER, Judge.

text:
    Riley A. WILLIAMSON, Sr., Plaintiff & Appellee, v. Dick ALEWINE, d/b/a Dick’s Garage & Truck Sales, Defendant & Appellant.
    No. 82-32.
    Court of Appeal of Louisiana, Third Circuit.
    July 2, 1982.

      Bolen & Erwin, Gregory S. Erwin, Alexandria, for defendant & appellant.
    Gist, Methvin, Hughes & Munsterman, David A. Hughes, Gold, Little, Simon, Weems & Bruser, John F. Simon, Alexandria, for defendant & appellee.
    J. Wendel Fusilier and Alex D. Chapman, Jr., Ville Platte, for plaintiff & appellee.
    Before CULPEPPER, SWIFT and LA-BORDE, JJ.
   CULPEPPER, Judge.

This is a suit for damages for breach of a contract to repair a truck. The original' defendant, Dick Alewine, filed a third party demand against Hartford Accident & Indemnity Company, his garage liability insurer. Hartford filed a motion for summary judgment denying coverage. The district court granted the summary judgment. Third party plaintiff, Dick Alewine, appeals. We affirm.

The issues are: (1) Does the garage liability insurance policy in question provide coverage for the damages alleged by plaintiff Williamson’s petition? (2) Does the insurer have a duty to defend Dick Alewine?

FACTS

The plaintiff, Riley Williamson, Sr., filed suit against the defendant, Dick Alewine, d/b/a Dick’s Garage & Truck Sales, alleging that after he had paid the defendant for certain repair work on his truck, it began malfunctioning, and he ultimately had to have it repaired by another mechanic because of the defendant’s failure to properly repair it initially. The damages claimed by Mr. Williamson included the amount already paid for repairs, future repair payments, loss of profits due to delay in repair, mental anguish and attorney’s fees.

COVERAGE

Hartford’s policy provides it will indemnify the insured for all sums he becomes legally obligated to pay as damages, because of “bodily injury or property damage” to which the insurance policy is applicable,” caused by an occurrence and arising out of garage operations.” The exclusionary clauses relied upon by Hartford state this insurance does not apply:

“(i) to loss of use of tangible property which has not been physically injured or destroyed resulting from
(1) a delay in or lack of performance by or on behalf of the named insured of any contract or agreement, or
(2) the failure of the named insured’s products or work performed by or on behalf of the named insured to meet the level of performance, quality, fitness or durability warranted or represented by the named insured;
* * * s(t * *
“(k) to property damage to work performed by or on behalf of the named insured arising out of the work or any portion thereof, or out of materials, parts or equipment furnished in connection therewith;”

Similar exclusionary clauses were considered by this court in Vobill Homes, Inc. v. Hartford Accident & Indemnity Company, 179 So.2d 496 (La.App. 3rd Cir. 1965), writ refused 248 La. 698, 181 So.2d 398 (1966), and Franks v. Guillotte, 248 So.2d 626 (La.App. 3rd Cir. 1971). In Vobill Homes, Inc., the pertinent exclusionary clauses excluded “injury to * * * work completed by or for the named insured, out of which the accident arises.” The phrase in the Franks case excluded coverage for “injury to or destruction of * * * work completed by or for the named insured, out of which the accident arises.”

Despite a slight difference in wording, Exclusion (k) of the instant policy was obviously intended to exclude the same type of claims as the Vobill Homes and Franks clauses, i.e., for damages caused by injury to the work-product itself of the named insured. We find no ambiguity in the language therein.

It is our understanding, and it has been uniformly held, that a liability policy with an exclusionary clause such as this expressly excludes coverage of the insured’s obligation to repair or replace his own defective work or product. Franks v. Guillotte, supra; Vobill Homes, Inc. v. Hartford, supra, and authorities cited therein. The claim of the plaintiff in the instant case for repairs to his vehicle is just such a claim, and coverage is unambiguously excluded by the language of the policy.

Exclusion (i) of the policy is applicable where there is a claim against the named insured for loss of use of property as a result of a lack of performance of a contract or agreement by the insured, or failure of the insured’s work-product to meet the level of performance, fitness, etc., represented by the insured. The plaintiff’s claim for loss of use of his truck falls clearly within this language, and is thus excluded from policy coverage.

The claim for damages for “mental anguish and suffering during second repair of the vehicle” is not recoverable in an action for breach of contract where the principal cause was repair of the plaintiff’s vehicle, and not some form of intellectual enjoyment. See Meador v. Toyota of Jefferson, Inc., 332 So.2d 433 (La.1976); Martin v. AAA Brick Company, Inc., 386 So.2d 987 (La.App. 3rd Cir. 1980). Furthermore, in the absence of a contractual agreement or specific statutory authority, the plaintiff’s claim for attorney’s fees may not be allowed. Martin v. AAA Brick Company, supra. The plaintiff neither alleges facts to establish a contractual agreement to this effect nor cites any statutory authority for attorney’s fees in this case.

Inasmuch as the first three items of damages claimed by plaintiff’s petition are excluded by the specific language of the policy in question, and the last items of damages would not be recoverable in any event, the summary judgment in favor of the third party defendant was properly granted.

DUTY TO DEFEND

The appellant contends that since Hartford’s denial of coverage was first based on Exclusion (k) and later on Exclusion (i), there is at least an ambiguity, so that Hartford has the duty to defendant Dick’s in this suit.

We recognize that, in general, the insurer’s obligation to defend suit against its insured is broader than its liability for damage claims. In Lees v. Smith, 363 So.2d 974 (La.App. 3rd Cir. 1978), we held:

“An insurer’s duty to defend suits brought against its insured is determined by the allegations of the plaintiff’s petition, with the insurer being obligated to provide a defense unless the petition unambiguously excludes coverage. American Home Assurance Company v. Czarniceki, 255 La. 251, 230 So.2d 253 (1969); Ada Resources, Inc., et al. v. Don Chamblin & Assoc., Inc., et al., 361 So.2d 1339 (La.App. 3 Cir. 1978).”

However, to determine whether the petition “unambiguously excludes coverage,” it is necessary to look to the exclusionary language of the policy itself. See Lees v. Smith, supra; Michel v. Ryan, 373 So.2d 985 (La.App. 3rd Cir. 1979), writ denied 376 So.2d 319 (La.1979). This test is unaffected by the fact that Hartford relied on more than one exclusion to deny coverage. In light of our decision that exclusionary clauses (i) and (k) exclude coverage under the language of the plaintiff’s petition in this case, we find that Hartford has no duty to defend the appellant.

For the reasons assigned, the judgment is affirmed. All costs of this appeal are assessed against the defendant-appellant.

AFFIRMED.