author: CHEHARDY, Judge.

text:
    CONTINENTAL TITLES, INC. v. UNITED STATES FIRE INSURANCE COMPANY.
    No. 12380.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 7, 1982.

      Albert J. Huddleston, Kenner, for appellant.
    Christovich & Kearney, Lawrence J. Ernst, New Orleans, for appellee.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   CHEHARDY, Judge.

Continental Titles, Inc. (Continental), defendant on the petition of plaintiff United States Fire Insurance Company (Fire) for a preliminary and permanent injunction, appeals a district court judgment in favor of Fire in that matter and against Continental, permanently enjoining, restraining and prohibiting Continental, its agents, employees and attorneys from executing or attempting to execute on the default judgment taken by it and against Fire on the 25th day of July, 1980, in the matter entitled “Continental Titles, Inc. versus United States Fire Insurance Company.” Continental was ordered to pay all costs in connection with the issuance of that injunction.

The facts of this case are as follows: On June 3, 1980, Continental, represented by Albert J. Huddleston as counsel, filed a petition against Fire alleging damages done to an aircraft owned by Continental by contaminated fuel in the amount of $45,375, together with penalties and attorney fees. A motion for preliminary default was filed in that suit on June 12, 1980, entered on July 7, 1980, and confirmed and made final on July 25,1980. On August 20, 1980, Fire, represented by James F. Holmes, answered the petition. On September 11, 1980, Fire then filed a petition for a preliminary and permanent injunction against Continental, and on September 12, 1980, Fire filed a petition for nullity of judgment in regard to the previous default judgment rendered against them, alleging fraud and/or ill practices.

The trial judge obtained a stipulation from the parties that the trial on the rule in the injunction proceeding would be on both a preliminary injunction and a permanent injunction. He rendered judgment granting a permanent injunction, permanently enjoining Continental from executing or attempting to execute on the default judgment.

We amend the judgment and grant only a preliminary injunction pending the final determination on the motion for nullity.

Although the stipulation was to also try a permanent injunction, the parties also agreed that the nullity of judgment petition would be tried later.

The effect of the whole stipulation is that the judgment rendered could only in effect be a preliminary injunction which would be in existence until the judgment was rendered on the nullity suit. We call attention to the fact that an aggrieved party may appeal a default judgment and he may file a petition for nullity. The petition for injunction in this case, where there was no attempt to execute, appears to be an effort to create a new kind of procedural remedy. In the procedural posture of this case the injunction was obviously considered by the attorneys to be in the nature of an ancillary to the nullity judgment, i.e., a conservative writ to maintain the parties in status quo until a hearing on the merits of the nullity petition. A permanent injunction would, of course, render the nullity proceeding basically moot, because the judgment could never be executed.

In a preliminary injunction it is not necessary that the petitioner prove the merits of the case, that is that the default judgment should be annulled, but simply that he establish a prima facie case in support of that action and that he would be subject to irreparable injury if the status quo is not preserved.

We conclude that the petitioner has furnished sufficient facts for the granting of a preliminary injunction. We do not pass upon the ultimate issue, i.e., the nullity of the judgment, but in accordance with the agreement of the parties defer that decision until after a hearing on the merits.

Accordingly, we amend the judgment appealed to grant only a preliminary injunction, preliminarily enjoining, restraining and prohibiting Continental, its agents, employees and attorneys from executing or attempting to execute on the default judgment taken by it and against Fire on the 25th day of July, 1980, upon posting a bond in the amount of $90,000. This matter is remanded for further proceedings as may be necessary and proper on the petition for nullity. Costs are to be assessed on the final disposition of the trial court.

AMENDED AND REMANDED.

      . Although Continental was the plaintiff in the original action, it is the defendant in the action of nullity.


source: Caselaw Access Project

license: Public Domain

text:
    Bernadette Poche TREGRE, et al. v. George A. LASSEIGNE, et al.
    No. 12390.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 7, 1982.
    Daniel E. Becnel, Jr., Barry J. Landry, Mary Hotard Becnel, Reserve, for plaintiffs-appellants.

      Carville & Edrington, Jules A. Carville, III, George Ann Hayne Graugnard, La-Place, for defendants-appellees.
    Before SAMUEL, BOUTALL and CHE-HARDY, JJ.
   CHEHARDY, Judge.

Plaintiffs, Bernadette Marie Poche, wife of/and Romain Octave Tregre, and Armand Seioneaux, Sr., appeal a district court decision in favor of defendants, George A. Lass-eigne, Jr.; Doris Lasseigne Carville; Fer-nand J. Aycock, Jr.; Teresa Aycock Mad-ere; Joseph Junius Ory; and Bernice Ory Fulton, declaring that at the time of the sale of certain tracts of land by defendants to the plaintiffs, such sales did not include title to the subject batture in this suit and also stating, therefore, the plaintiffs were incapable of executing a lease on the bat-ture property.

The court further found that the batture in question and the gradual accumulation of river sand was a reality of sufficient elevation, susceptible to private ownership prior to any sale by the Lasseigne interests to any party in the 1930s. It also decreed that each party should pay his own costs.

The record reveals that one of the lots involved in this appeal was sold by Lass-eigne to Emanual Poche in 1932, and later that same year this lot was sold by Poche to Romain Tregre, one of the plaintiffs in this matter. The property descriptions in both sales were exactly the same and stated that the lot was bound on the front by the New Public Road.

Another of the subject lots in this case, and also one involved in this appeal, was sold in 1938, and the act of transfer recited that it was bound in the front or south by Jefferson Highway. None of the descriptions in the sales contained any allusion at all to the batture in question which runs along the river bank and which is located on the opposite side of Jefferson Highway from that where the subject lots are located. Said another way, Jefferson Highway, which replaces the public road at some point, and the New Public Road run in between the subject lots and the subject batture separating these entities.

In view of the property descriptions in the acts of sale, which were part of the record in this matter, this court must agree with the district court that the sales of these tracts of land from Lasseigne did not include any lands located south of Jefferson Highway or the New Public Road, which are the southern boundaries of the tracts of land involved in this appeal.

Plaintiffs, however, also base their claim to the subject batture on prescription. LSA-C.C. art. 3479 states that in order to acquire the ownership of immovables by operation of a ten-year prescriptive period, one of the requirements is a title which shall be legal and sufficient to transfer the property. Since we find the plaintiffs did not have legal and transferable title to the batture in question, the benefits of ten-year acquisitive prescription cannot operate in their favor.

LSA-C.C. art. 3499, however, establishes that the ownership of immovables is prescribed for by thirty years without any need of title or possession in good faith. LSA-C.C. art. 3500 further provides that the possession on which this prescription is founded must be continuous and uninterrupted during all the time; it must be public and unequivocal, and under the title of owner. LSA-C.C. art. 456 also states that the banks of the navigable rivers or streams are private things that are subject to public use.

In Lasseigne v. Clement, 311 So.2d 600 (La.App. 4th Cir. 1975), this explanation of thirty-year prescription is found at 603:

“Thirty year acquisitive prescription requires intent to possess as owner and not under some other tenure, such as a tenant. In addition there must be possession which is adverse to the true owner, and such possession must be continuous, uninterrupted, public and unequivocal. Actual corporal possession is necessary to commence the running of prescription, and thirty years acquisitive prescription requires external and public signs to keep possession running. The burden of proof is on the person claiming thirty years prescription to show when his possession began and that it continued as owner and adverse to the actual owner for the required thirty year period.”

In addition, it was established in Cooper v. Conagra, Inc., 340 So.2d 661 (La.App.2d Cir. 1976), that the grazing of cattle on a tract of land which is enclosed by properly maintained fences may form the basis of acquisitive prescription of thirty years, but in that ease the grazing of cattle on the property which was never enclosed by, a fence maintained by him was not considered sufficient possession.

Testimony was given in the present case in regard to the plaintiffs’ possession as owners by Armand Scioneaux, Sr., one of the original purchasers of the property from Lasseigne, and whose deposition was taken for the purpose of perpetuating testimony. He testified he could not read the deed to the subject property when he signed it. He said he had lived there since the purchase of the property and he used the batture for grazing his cattle and horse. He also stated he had not erected a fence on the batture but had placed iron pipes on the New Orleans and Baton Rouge sides, starting back almost to the river, in 1957.

Scioneaux also stated he had sold sand off the subject batture in 1957 and Lass-eigne never objected. He said he had executed oil leases on the whole of his property around the year 1946 and again in 1950. He also admitted that Lasseigne could read and write and was a “smart man.”

Mrs. Romain Tregre also testified that she had stayed on her property for thirty-nine years and that the batture was used by her family as a playground, as well as for fishing and swimming. She stated she also sold sand from the property and was never asked not to do it. She said that although some of the landowners used the batture for grazing cattle, she did not.

Mrs. Willard Hymel, Scioneaux’s daughter, testified there was always a fence on the batture of their property until some recent construction was begun. She stated the fence was used for keeping cattle for a time, and she also said her father sold sand from the batture for a good many years.

Armand Scioneaux, Jr., testified the section of batture adjacent to his father’s property had been fenced up until at least two or three years prior to trial and that his father could not allow the children to go beyond the fences on to other sections of the batture.

Ann Richards, Scioneaux’s daughter, testified there were fences on what they considered their part of the batture from the time she was a small child until 1974 or 1975, when they were torn down by the present construction.

This court must agree with the trial court judge that the plaintiffs did not succeed in establishing their possession of the subject batture was continuous, uninterrupted, public and unequivocal for a period of thirty years. Although it is obvious the plaintiffs believed they owned the subject batture, Scioneaux admitted to not having fenced what he considered his portion of the bat-ture until approximately 1957. Sections of the batture were also used for recreational purposes by those with adjacent properties, but we cannot hold these activities could reasonably be construed as adverse to the true owner. Though the selling of sand from the batture could certainly be looked upon as adverse to the true owner, it is evident from the testimony that this activity did not begin until the 1950s.

Because this court holds that the plaintiffs have not prevailed on the merits of this case, it is not necessary for us to decide the procedural issue concerning plaintiffs’ attempt to join a petitory, and possessory action.

Additionally, this court must also agree with the district court that all testimony tends to show that at the times of the sales of these tracts of land, in the 1930s, the batture in question was of sufficient elevation to be susceptible of private ownership. Such an alluvion does not pass with the riparian land unless it is expressly stated in the act of sale. Tassin v. Rhynes, 366 So.2d 580 (La.App.3d Cir. 1978).

For the reasons assigned, the district court decision is affirmed.

AFFIRMED.

      . Named in the judgment as Ferdinand J. Ay-cock, Jr.

      . Named in the judgment as Theresa Aycock Madere.


text:
    BANDAI AMERICA, INC. v. SUMMA MANAGEMENT CORPORATION.
    No. 12433.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 7, 1982.
    Rehearing Denied May 19, 1982.
    Moran & Macke, Rebecca B. Macke, Me-tairie, for plaintiff-appellee.
    Nel F. Vezina, Gretna, for defendant-appellant.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   CHEHARDY, Judge.

Defendant, Summa Management Corporation, appeals a district court decision in favor of plaintiff, Bandai America, Inc., for past-due monies for merchandise sold and delivered to the defendant.

The record reflects the plaintiff first requested service of process on the defendant through its registered agent for service of process at 3303 Severn Avenue in Metairie, Louisiana. When the return of the sheriff showed it was not served because the agent was unknown at that address, another service was attempted on that agent at 3400 16th Street in Metairie. Service was then ultimately made on a Summa Management Corporation employee.

No appearance was made by the defendant, and consequently a default judgment was taken by the plaintiff.

LSA-C.C.P. art. 1261 states that if there is no registered agent for a corporation due to death, resignation or removal, service of citation may be made at any place where the business of the corporation is regularly conducted by personal service on any employee of suitable age or discretion.

In Colonial Buick, Inc. v. Crescent Chemical Sales, Inc., 240 So.2d 567 (La.App. 4th Cir. 1970), this court reiterated that service of process must be attempted on the designated agent prior to service on one of the defendant’s employees. In the present case, because the record reflects such an attempt was made by the plaintiff, the later service on defendant’s employee was effective.

For the reasons assigned, the trial court judgment is affirmed.

AFFIRMED.


author: BARRY, Judge.

text:
    HONEYWELL, INC. v. COURTESY DISCOUNT HOUSE, INC.
    No. 12821.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 7, 1982.
    Wayne J. McDougall, Chalmette, for defendant-appellee.
    Greenberg & Dallam, David T. Pick, Gretna, for plaintiffs-appellants.
    Before BARRY, AUGUSTINE and WILLIAMS, JJ.
   BARRY, Judge.

This action arose out of a contract wherein plaintiff, Honeywell, Inc., agreed to provide burglar alarm equipment and services to defendant, Courtesy Discount House, Inc. The defendant failed to make specified payments and plaintiff filed suit seeking all sums due for the term of the contract. The defendant answered that the contract had been breached and the Trial Judge agreed, finding that Honeywell failed to supply the services which were outlined in the agreement.

Plaintiff appeals urging that the trial court erred in holding that plaintiff’s burglar system did not function properly; alternatively, that the defendant failed to notify plaintiff of any deficiencies in the system; and defendant had no basis in law to withhold payments due under the contract.

On May 15, 1979 plaintiff and defendant signed an agreement for the lease of burglar alarm equipment, including installation and specific protection services. After the system was installed it did not function properly and a new system was put in on June 5, 1979. Defendant agreed to pay an installation fee of $1,649.50 plus a monthly charge of $105.40 for “ongoing monitoring and/or service” for two years. The schedule of protection contained the following provisions:

“Contractor will service and maintain all equipment during terms of this agreement.
Immediate guard response.
Signal in to Honeywell central station, with direct line to St. Bernard Parish Sheriff’s office.
Emergency service available 24 hours per day, 7 days per week.”

Plaintiff’s installation manager, Wayne Fradella, testified the first system was functional but had a few “bugs.” He dealt with Robert Pierce, president of the defendant corporation, who negotiated the second contract which specified more protection and different equipment at additional costs. He said Pierce wanted the added protection in order to detect someone on the premises as soon as possible, and the monthly charge was for monitoring to provide that service. Fradella stated after the second installation Pierce made only one complaint to him which concerned a siren that was relocated. On cross examination he said the 24 hour surveillance meant watching a computer for an alarm in order to notify the police. He said “immediate guard response” meant the first available Honeywell man would take the call “instantly.” Fradella admitted the defendant’s alarm went off sporadically without cause and it was Honeywell’s responsibility to adjust and repair the system. He also said that “signal in to Honeywell central station” meant the Sheriff was to be notified whenever the alarm sounded.

Pierce testified after the first system was installed there were a number of false alarms. He said the second system continuously failed and on several occasions there was no response from the Sheriff’s office. Pierce identified three employees of Honeywell he complained to on numerous occasions and he advised them payment would not be made until the system functioned properly. He also said Honeywell never sent a guard in response to an alarm and as a result he was forced to spend nights on the premises. The contract provided for emergency service 24 hours per day, 7 days a week but Pierce said there were times when the system didn’t work for days. He added: “I got service half of the time in twenty-four hours, but, very, very seldom it was ever under six hours. And I ran into days occasionally.” Pierce stressed he would not have signed the contract if he had known Honeywell could not provide immediate guard response, emergency service, and the other items specifically added to the contract at his request. Pierce testified from informal notes which showed dates of numerous false alarms, no responses from plaintiff, and instances when plaintiff did not react until days later.

To substantiate the false alarms defendant called a radio dispatcher for the Sheriff’s office who identified log sheets which reflected numerous entries reflecting alarms from defendant’s property. The dispatcher said there were many complaints, sometimes two or three times a night, that the alarm was sounding and it occurred so often her office stopped recording the calls. Another defense witness, a supervisor in the Sheriff’s office, said his office had so much trouble with the alarm going off he instructed the radio operator not to accept calls in order “not to waste time going back over there.”

In succinct and cogent written reasons the Trial Judge said:

“The Court was impressed with the testimony of Mr. Pierce. His answers were detailed and specific. He was definite as to not entering into the contract without the specific services of immediate guard response; signal in the Honeywell Central Station with direct line to the Sheriff’s Office; and emergency service available 24 hours per day, 7 days a week.
His testimony that the plaintiff failed to live up to the specific terms of the agreement was impressive, largely uncontra-dicted and supported by the testimony of two St. Bernard Parish Sheriff’s Office employees.
In addition, plaintiff failed to call, either in chief or rebuttal, the individual who wrote and negotiated the contract with Mr. Pierce, in regards to Pierce’s interpretation of the agreement.
It was the opinion of the Court that the defendant had carried the burden of proving by a preponderance of the evidence that Honeywell, Inc., failed to perform the object of the contract and did breach the contract by failing to supply the service called for by the terms of the agreement; and therefore payment is not required under our law.”

Plaintiff’s first contention is that the Trial Judge incorrectly found that the burglar alarm system was so defective it was incapable of functioning properly. Defendant argues, and we agree, that this assertion does not reflect the reasons given by the trial court which specified failure to perform the object of the contract, namely, the protection services. Our reading of the record indicates that the alarm system was defective but that was not the basis for the judgment.

Plaintiff’s next assignment is also without merit. It argues even if the system was not fully functional, defendant was obligated to give written notice under the following lease provision:

Any claim by Subscriber of improper installation or a defect in the system must be given in writing to the Contractor within (30) thirty days from the installation completion. Otherwise all such claims shall be deemed waived.

Plaintiff cites Louisiana Power & Light Co. v. Mecom, 357 So.2d 596 (La.App. 1st Cir. 1978) wherein a similar waiver provision was enforced. However, that case provided for an automatic extension of electrical service unless the contract was terminated in writing prior to its expiration. Those facts are dissimilar from this case and not applicable. Further, this provision applies to improper installation or a defect in the system and in no way relates to the lower court’s finding that plaintiff failed to provide the enumerated protection services.

Finally, appellant asserts under the law of lease the lessee (defendant) could not refuse to make payments because LSA-C.C. Art. 2694 provides that a lessee is authorized to make necessary repairs (if the lessor refuses) and deduct the cost from the rent. Alternatively, plaintiff asserts the lessor’s other option was to sue for dissolution of the lease, but withholding payments was illegal. Lassen v. Otalvaro, 391 So.2d 1378 (La.App. 4th Cir. 1980). Defendant responds that plaintiff was aware that the system was malfunctioning and points to a provision in the lease whereby the lessee “... agrees not to tamper with, alter, adjust, add to, disturb, injure or remove or otherwise interfere with installed equipment ...

Hence, the lease prevented defendant from making the repairs which plaintiff claims it should have made. Whether defendant should have sued for dissolution of the lease is moot since plaintiff filed this suit.

In our review of these facts the manifest error rule is not applicable because this case relates to preponderance of the evidence, rather than credibility of witnesses. See Blue Streak Enterprises v. Cherrie, 263 So.2d 734 (La.App. 4th Cir. 1972). We feel the defendant clearly exceeded its burden of meeting the preponderance test because the evidence is overwhelming that plaintiff failed to perform under the contract.

Accordingly, the judgment appealed from is affirmed with plaintiff/appellant to pay all costs of appeal.

AFFIRMED.


text:
    Allen NEWMAN, Jr. v. DEPARTMENT OF FIRE.
    No. 12885.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 7, 1982.
    Rehearing Denied May 19, 1982.
    Barker, Boudreaux, Lamy, Garnder & Foley, Louis L. Robein, Jr., New Orleans, for plaintiff-appellant.
    Charles J. Willoughby, Asst. City Atty., New Orleans, for defendant-appellee.
    Before BARRY, AUGUSTINE and WILLIAMS, JJ.
   BARRY, Judge.

Plaintiff was disciplined for violating fire department regulations and appeals the af-firmance by the Civil Service Commission.

Allen Newman, Jr. was a captain with the New Orleans Fire Department in charge of a ladder company. On October 5, 1980 at 1:30 a.m., after returning from an alarm, Newman and Mordelo Breckenridge, a fire apparatus operator, left the fire house to get something to eat without notifying the other two members of their unit. During their absence of approximately one hour and forty-five minutes the two remaining firemen responded to a call. Their services- weren’t needed, but on their return to the station house the unit had an accident with an automobile which was investigated by a District Chief who noted the absence of Newman and Breckenridge. A Deputy Chief was notified and he went to the station house and waited for the men to return, questioned them briefly, and suspended both because of their absence from duty.

Newman, appellant, was charged with violating the following regulations of the New Orleans Fire Department:

SECTION 6:01 — CAPTAIN’S RULES—
This position is one of the utmost importance in the enforcement of discipline and the promotion and maintenance of efficiency. The Captain shall consider it his duty to set a good example and require that his command measure up to Departmental requirements.
SECTION 11:16 — GENERAL RULES—
No person shall leave quarters without permission except when response is made to an alarm.
SECTION 11:29 — GENERAL RULES—
Absence or tardiness without proper notification and permission shall be considered as absent without leave and the offender shall be penalized accordingly.

Appellant admitted his absence, said it was to purchase food, and described himself as “stupid” for leaving. After a hearing he was demoted-from Captain to Fire Fighter, suspended sixty days, and transferred. The Civil Service Commission affirmed the disciplinary action saying appellant’s departure was a grave offense which was compounded because he was the unit’s leader. The thrust of appellant’s appeal is the excessiveness of his penalty.

Appellee argues the Civil Service Commission was justified in not reducing the penalty and cites Branighan v. Department of Police, 362 So.2d 1221 (La.App. 4th Cir.), writ denied, 365 So.2d 247 (La.1978) which held a penalty cannot be modified without a finding that the penalty did not fit the offense. Appellee stresses the issue is not the disciplinary action, but rather the determination that the penalty was adequately supported because of the gravity of this offense.

There was testimony and general agreement it was customary to allow one fireman to leave quarters to purchase food with permission of the Captain. However, the problem here is that Newman and Breckenridge left without notifying the other members of their company which resulted in their fire truck being undermanned.

Appellant’s ladder unit consisted of four men and was housed with an engine unit which also had four men. The District Chief testified it was permissible for one man to leave to buy food and the minimum personnel for a ladder truck was three firemen. He recalled, however, occasions when the ladder truck functioned with only two men, and also stated this company (ladder and engine units) had been in service together with only five men. The Superintendent testified three men was the minimum to operate the ladder truck; however, he stated it could operate with two firemen and admitted it happened, though rarely. He also said personnel with the engine unit could fill a vacant slot if the ladder unit was short and it was policy for one man, usually a firefighter, to get food but not to take more than one hour. Interestingly, the. Superintendent was questioned if, in assessing appellant’s discipline, he considered rumors this fire company had engaged in illicit activities, and he responded “I may have” and added he thought perhaps something was “going on” which caused appellant to be absent. A member of the ladder company testified he was a fireman for eighteen years. He said during this time the ladder truck operated with only two men and it was common procedure to get an extra man from the other unit when needed.

From this record it appears appellant’s primary mistake was leaving the company house without notifying the other members of his unit or the engine unit. The testimony clearly shows men from each unit are routinely interchanged to fill a vacancy. Most importantly, this engine and ladder company had a combined strength of six which was sufficient to function during appellant’s absence.

Decisions of the Civil Service Commission are subject to review on questions of law and fact. LSA-Const. Art. 10, § 12. The scope of review is the same as in other civil matters, i.e., the appeal court must give great weight to factual conclusions of the trier of fact. Sanders v. Department of Health and Human Resources, 394 So.2d 629 (La.App. 1st Cir. 1980), writ denied 399 So.2d 602 (La.1981). The burden of proof on appeal, as to the facts, shall be on the appointing authority. LSA-Const. Art. 10, § 8(A). Therefore, the appointing authority must show by a preponderance of the evidence that the conduct of the disciplined employee did in fact impair the efficiency and orderly operation of the public service, otherwise the action is arbitrary and capricious. Thornton v. D.H.H.R, 394 So.2d 1269 (La.App. 1st Cir. 1981), Sanders, supra.

The Superintendent of Fire does not have unbridled power to administer his department even though the department’s administrative structure and command responsibility are similar to a military unit. The Superintendent must exercise discretion when disciplining men under his jurisdiction, and there must be sufficient cause commensurate with the offense.

Any change in a disciplinary action can only be based on insufficient cause shown by the appointing authority. The Civil Service Commission’s authority over disciplinary cases includes authority to modify as well as reverse or affirm a penalty. Bernard v. Louisiana Health and Human Resources, 336 So.2d 55 (La.App. 1st Cir. 1976).

Whether the Civil Service Commission erred by not reducing appellant’s penalty is strictly a question of fact. A penalty cannot be modified without a finding that the greater penalty did not fit the offense. Branighan, supra. In other words, was the demotion, suspension, and transfer too severe.

Appellant was charged with “... leaving quarters without permission ...” which the Superintendent characterized as “abandonment”. We disagree that appellant’s absence constituted abandonment. There is no evidence appellant intended to leave without returning, only that he left for a period of time longer than the customary one hour. He admittedly left his quarters “without permission,” but the department’s rules only require that permission be secured which he was authorized to give. Appellant was at fault when he left without notifying the other members of his company, but we feel this error in judgment does not justify the severe penalty which is clearly excessive under these facts.

What concerns us is appellant’s unblemished nineteen year career with the Fire Department, the last ten years as Captain. His performance ratings exceeded the department’s requirements and the Superintendent described him as intelligent, experienced, knowledgeable and committed. The effect of the demotion will be a substantial reduction in pay and resultant loss of pension benefits. Appellant argues, and we agree, promotional opportunities will be drastically, if not totally, eliminated.

We feel the cause of appellant’s discipline was insufficient to justify such a harsh penalty. The penalty was extreme, drastic, and disproportionate to the offense. Appellant’s isolated poor judgment merits the sixty day suspension, which we affirm. His demotion is clearly excessive, is reversed and it is ordered that Allen A. Newman be reinstated to his position as Captain retroactive to December 4, 1980 with back pay and other benefits from that date. Transfer of appellant is within the sound discretion of the Superintendent. Appellee to pay all costs of appeal.

REVERSED IN PART; AFFIRMED IN PART.

      . Breckenridge was charged with violating Sections 11:16 and 11:29. He testified Captain Newman gave him permission to leave their unit and since this supplied compliance with the rule the Civil Service Commission rescinded his suspension and reinstated him to Fire Apparatus Operator.


author: KLIEBERT, Judge.

text:
    James GRANGER, Jr. v. Gregory W. EHLMAN, et al.
    No. 12383.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 7, 1982.
    J. Glenn Dupree, V. Charles Cusimano, Adcock, Dupree & Shows, Baton Rouge, for defendant-appellant.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   KLIEBERT, Judge.

The defendant, Gregory W. Ehlman, brought this appeal of a judgment against him in the amount of $7,221.75 plus interest and costs. The judgment is in favor of James Granger, Jr., plaintiff, for injuries sustained in an automobile accident. The appeal is on liability and quantum. We affirm the trial court.

On March 3,1979, Granger was travelling east on 1-10 from LaPlace towards Kenner. The accident sued on occurred just inside the St. Charles Parish line. This portion of the interstate is raised with a narrow shoulder in the left lane and a larger emergency shoulder on the right lane with two traffic lanes between the shoulders. A hard rain was falling at the time of the accident.

According to the plaintiff’s version of the accident, after having just passed a slow moving vehicle in the right lane of traffic, Granger was operating his vehicle in the left lane (passing lane) when he noticed a vehicle rapidly approaching from the rear in his lane. Gregory W. Ehlman, the defendant, was driving the approaching vehicle.

Plaintiff testified the vehicle overtaking him from the rear hit him in the rear. This caused him to go into a skid and hit the railing. His car turned sideways, straddling both lanes of traffic when he was again hit in the right side by the defendant’s vehicle. As a result of the impact, plaintiff received a black eye and a contusion with some residual scarring to his upper lip. Plaintiff did not actually see the overtaking vehicle collide into the rear of his vehicle.

The defendant testified that a light colored truck “sideswiped” him, causing him to momentarily lose control of his vehicle. As he was regaining control of his vehicle, he spotted the plaintiff’s vehicle straddling both lanes of the highway in front of him. Because of the rain and poor driving conditions, he was unable to stop and collided into the plaintiff’s right side.

The trial judge made a credibility call, found for the plaintiff and awarded $7,000.00 for the personal injuries and the sum of $221.75 for medicals. In so doing, the trial judge stated that it was raining and the defendant should have seen the vehicle ahead of him and should have had his vehicle under control. The trial judge further stated that he did not believe the testimony of the defendant as to a light colored truck and therefore did not find the phantom vehicle theory as an adequate defense.

Where there is evidence before the trier of the facts which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, an appellate court should not disturb this factual finding in the absence of manifest error. Canter v. Koehring, 283 So.2d 716 (La.1973). One of the reasons for this principle of review is the trial court’s ability to see and evaluate live witnesses as opposed to an appellate court’s access only to a “cold record”. After a careful review of the record here, we cannot say the trial judge committed manifest error in accepting the plaintiff’s version of the accident over the defendant’s version. Hence, we affirm his ruling on liability.

The appeal was on quantum as well as liability. The plaintiff’s total medical expenses were $108.50 for treatment and $113.00 for medical services. The trial judge quoted the following from plaintiff’s trial court brief on his evaluation of the personal injuries:

“... Plaintiff sustained a laceration to the upper lip requiring both internal and external sti(t)ches. Besides swelling of the lip, which lasted approximately two months, his left cheek was contused and swollen for several days. Plaintiff’s eye was also blackened and remained so for several weeks. It was apparent to the court through visual examination that the plaintiff had sustained permanent scarring to the upper lip from the base of the nose to the upper edge of the lip. The scarring was visible from six feet in distance.”

For these injuries, the trial judge awarded $7,000.00 for the personal injuries and $221.75 for the medical expenses and cited cases showing awards ranging from $2,500.00 to $8,500.00. A reviewing court should not disturb the trial judge’s award unless there is a clear abuse of discretion in setting the award. Although on the high side, we cannot say the trial judge abused his discretion here. Accordingly, the trial judge’s award is affirmed. All costs of appeal to be borne by the appellant.

AFFIRMED.


text:
    The NATIONAL COMPANIES v. Robert D. BRIDGEWATER and Verna Craven Bridgewater, et al.
    No. 12408.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 7, 1982.
    Gilbert R. Buras, Jr., New Orleans, for plaintiff-appellant.
    Ewell E. Eagan, Jr., Gerald F. Slattery, Jr., Gordon, Arata, McCollam & Stuart, New Orleans, for defendants-appellees.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   KLIEBERT, Judge.

This is a devolutive appeal by The National Companies, plaintiff, from a judgment of the trial court permanently enjoining The National Companies from entering the premises located at 300 Jefferson Highway in the Parish of Jefferson. The judgment appealed from is a sequel to a previous appeal involving the ownership of cotton compresses located in the premises bearing number 300 Jefferson Highway. In the first appeal, reported at 398 So.2d 29 (4th Cir. 1981), this court on March 10,1981, affirmed a summary judgment holding that Robert D. Bridgewater et al were the owners of the cotton compresses and, hence, dismissed the plaintiff’s suit. During the pendency of that appeal, the trial court issued and maintained a preliminary injunction enjoining The National Companies from entering the premises located at 300 Jefferson Highway. Before our judgment of March 10, 1981 was handed down the trial court on October 9,1981 held a hearing on the permanent injunction. Following this hearing, on October 16, 1980, the trial court made its previous preliminary injunction a permanent one.

Since Robert D. Bridgewater et al is the owner of the premises and of the cotton compresses, for the same reasons stated in the first appeal, reported as The National Companies v. Robert D. Bridgewater, 398 So.2d 29 (4th Cir. 1981), the judgment of the trial judge making the preliminary injunction a final one is also affirmed. Costs of appeal to be borne by the appellant.

AFFIRMED.


text:
    Almond LOCKETT v. The HOME INSURANCE COMPANY, et al.
    No. 12414.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 7, 1982.

      Leon C. Vial, III, Hahnville, for plaintiff-appellant.
    Leon A. Aucoin, Bailey & Leininger, Me-tairie, for defendant-appellee.
    James F. Ryan, New Orleans, for interve-nor-appellee.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   KLIEBERT, Judge.

On March 20, 1979, Almond Lockett suffered an injury to his right knee while in the course and scope of his employment as a truck driver for Pullman Kellogg. Lockett was delivering steel to a job site at the Shell Oil Company plant in Norco, Louisiana. He was standing outside of his truck while it was being unloaded at the site. As he was standing there waiting, a truck owned by J. T. Thorpe Company and being operated by its employee backed into Lock-ett striking his right leg.

Plaintiff filed suit against J. T. Thorpe Company and its liability insurer, The Home Insurance Company, for personal injuries sustained in the accident. Travelers Insurance Company, the insurance carrier for Lockett’s employer, intervened seeking a reimbursement of compensation benefits paid to or on Lockett’s behalf. Counsel for Travelers, counsel for Home Insurance and counsel for Lockett entered into a written and signed stipulation under which Travelers was entitled to receive reimbursement of compensation benefits paid on Lockett’s behalf from any award for personal injuries made to Lockett.

Judgment was entered by the trial court in favor of the plaintiff, Lockett, and against the defendant, Home Insurance Company, for $7,330.87. There was no mention of the stipulation in the judgment. Travelers moved for a new trial because of the failure to honor their stipulation. The motion was denied.

Lockett appealed, seeking an increase in quantum. Travelers, the intervenor, also appealed and assigned as error the trial judge’s failure to recognize the stipulation and reimburse them from the personal injury award to Lockett. The defendants, J. T. Thorpe Company and Home Insurance Company, have neither appealed nor answered plaintiff and intervenor’s appeal. Hence, the defendant’s liability is fixed and is not an issue on this appeal. Home Insurance Company has deposited the amount due under the judgment in the court registry.

The trial judge concluded the plaintiff proved special damages of $1,220.77 which included lost wages of $673.92, prescribed drugs of $23.95, Dr. W. Brent and Dr. Gess-mer’s charges of $290.00 and Dr. Vial and Dr. Phemister’s charges of $343.00. Dr. Ralph Gessner and Dr. Thurman Phemis-ter’s depositions, both taken on June 16, 1980, were filed in evidence at the trial. The trial was left open for the taking and submission of Dr. Raoul G. Reye’s (a general surgeon) deposition. The deposition was taken on July 21, 1980 and submitted in evidence by the defendant on October 1980.

Dr. Gessner, an orthopedic surgeon, first saw Lockett on October 5, 1979. At the time, he was under Dr. Vial’s treatment. He complained about locking of the knee joint and medial joint line pain. On the initial physical examination, he found some crepitance with palpitation of the knee and the x-ray indicated some areas of degenerative osteoarthritis. Although he originally considered Lockett for an exploratory ar-throtomy, this was subsequently ruled out, preferring to treat Lockett on a conservative basis. In mid 1980, he found atrophy of the right leg. Additionally, he added to his previous diagnosis chondromalacia of the patella. He advised continued conservative treatment while restricting all activities which required bending of the knee. If pain persisted, his advice would be to remove the knee cap. Since Lockett was 45 years of age, he would normally expect to find some degenerative disease of the knee joint, but trauma to the knee could cause the disease to be more active. The last few times he saw Lockett before giving the deposition, he believed Lockett would have been unable to work, but as of the timé he gave his deposition, he believed Lockett was able to return to work as a truck driver.

Dr. Thurman Phemister was engaged in the general practice of medicine with Dr. Vial who first saw Lockett in May, 1979. Dr. Vial had administered steroid injections in the knee, anti-inflammatory medication, mild pain medication, knee supports, a knee brace for over a month and diathermy treatments. Lockett was first seen by Dr. Phemister on June 4, 1979. The only pain he could ever elicit was over the medial joint line. Although the patient complained of locking of the knee, he could never elicit the locking. He continued the same treatment as Dr. Vial. When it became apparent the treatment was not doing much good, he referred him to Dr. Gessner. His final diagnosis was traumatic arthritis. However, he could not tell whether it was superimposed on degenerative osteoarthritis. Dr. Phemister found no objective symptoms. Only subjective symptoms of pain and locking were found.

The substance of Dr. Reyes’ testimony was that Lockett had been treated by him for problems other than the knee. In giving his history, Lockett did mention his knee injury to Dr. Reyes. He gave Lockett a full disability rating for a back injury on April 22, 1980.

Based on the medical evidence, the trial judge awarded $6,000.00 in general damages. Appellant argues the award was inadequate because the trial judge made erroneous observations as to Lockett’s credibility. The trial judge may have been in error in the conclusions drawn, however, we cannot say he abused his discretion in setting the amount of the award.

Under the standard of review set by the Supreme Court in Reck v. Stevens, 373 So.2d 498 (1979), in the absence of an initial determination that the trial court abused its discretion in awarding general damages, the reviewing court should not disturb the trier’s award. Before we can disturb the trier’s award, the record must clearly reveal he abused his discretion. Perniciaro v. Brinch, 384 So.2d 392 (1980). Although it is apparent Lockett sustained traumatic arthritis of the right knee, there is some question as to its severity and whether it was superimposed on degenerative osteoarthritis. The diagnosis of Lockett’s injuries was based on subjective system rather than objective system. As concluded by the trial judge, the medical treatment did not gain momentum until the year following the accident. Under the circumstances, we cannot say the trial judge abused his discretion in setting the award for general damages.

Travelers, the intervening compensation carrier for Lockett’s employer, assigns as error the trial judge’s refusal to recognize the stipulation of the parties. We agree the trial judge erred. The stipulation signed by counsel for all parties and filed in the record provided as follows:

“Now into Court, through undersigned counsel, come all parties to this lawsuit and stipulate as follows:
That Almond Lockett was employed by Pullman-Kellogg on or about March 20, 1979 when he was injured within the course of his employment; that The Travelers Insurance Company was the compensation insurer of Pullman-Kellogg; that under the terms of its’ policy, The Travelers Insurance Company has paid to Almond Lockett NINE HUNDRED SIXTY-SIX AND 74/100 ($966.74) DOLLARS in medical benefits; that The Travelers Insurance Company is subrogated to the extent of its’ past and future payments and that in the event that there is judgment in favor of plaintiff herein, Almond Lockett and against defendants herein, that the compensation lien of The Travelers Insurance Company will be recognized and additionally that if the judgment exceeds the amount of benefits already paid to Almond Lockett, then The Travelers Insurance Company will be given a dollar for dollar credit against such judgment as to the amount Travelers has paid.”

A stipulation is a judicial confession and amounts to full proof against those who made it. Civil Code Article 2291. Although written stipulations cannot affect the powers, duties and prerogative of the court, stipulations become the law of the case and must be enforced. Wickliffe v. Cooper & Sperrier, 161 La. 417, 108 So. 791 (1926); Hair v. City of Baton Rouge, 297 So.2d 451 (1st Cir. 1974), writ refused, 300 So.2d 183 (La.App.).

Accordingly, the judgment of the trial judge is amended to provide that Travelers is entitled to receive reimbursement from Lockett for compensation benefits paid to or on behalf of Lockett as a result of the injury of March 20, 1979 and as thus amended, the judgment is affirmed. Each party is to bear his own cost of the appeal.

AMENDED AND AFFIRMED.


author: KLEES, Judge.

text:
    Dwanna SWAIN v. The SEWERAGE AND WATER BOARD OF NEW ORLEANS.
    No. 12852.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 7, 1982.

      John A. Gordon, Sp. Counsel, Vincent T. Lococo, Gen. Counsel, Gerard M. Victor, Senior Counsel, Sewerage and Water Bd. of New Orleans, New Orleans, for defendant-appellant.
    Patrick D. McArdle, Susan Adams, New Orleans, for plaintiff-appellee.
    Before SCHOTT, KLEES and WARD, JJ.
   KLEES, Judge.

On April 19, 198Ó, Dwanna Swain, the plaintiff-appellee, stepped out of the back seat of an automobile at approximately 12:30 A.M. onto St. Ferdinand Street in New Orleans. As she took her second step she fell into an open hole in the sidewalk which turned out to be an uncovered water meter box.

After a trial on the merits the trial court entered judgment in favor of the plaintiff and against the defendant-appellant Sewerage and Water Board of New Orleans for $667 with legal interest. The trial court’s reasons for judgment were as follows:

“Plaintiff alighted from an auto, took two steps and slipped into a water meter box, the cover of which was missing. She never notified the Sewerage and Water Board of her accident except by service of her petition. Her accident allegedly happened on April 19, 1980. There are pending in this Court two other lawsuits by different plaintiffs, both allegedly involving injuries in the same meter box hole.
As fast as the defendant replaces the cover, children in the neighborhood remove it. The defendant has no actual nor constructive notice of the missing cover.
The plaintiff sustained very minor injury. The only reason why this Court grants judgment is: Jones v. City of Baton Rouge, 388 So.2d 737 [La.]”

In Jones v. City of Baton Rouge, supra, the Supreme Court held that the strict liability theory of Article 2317 of the Civil Code is available in a suit against a public body and when the suit is based on such a theory of legal fault it is unnecessary to show actual or constructive notice on the part of the public body.

Under this theory of law the plaintiff need 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 is occasioned an unreasonable risk of injury to another and that his injury was caused by the defect. Loescher v. Parr, 324 So.2d 441 (La.1976).

The plaintiff has obviously proven these three elements. An open meter box on a sidewalk does occasion an unreasonable risk of harm to another, the meter box was in the care and custody of the Sewerage and Water Board and the plaintiff was injured by the defect, i.e., the open meter box.

However, there are three defenses available which will defeat an action based on strict liability. The custodian can escape liability by showing that the harm was caused by the fault of the victim, by the fault of a third party or by an irresistible force. Loescher v. Parr, supra.

The facts in the present ease disclose that the cover of the meter box was removed. There was evidence that the cover more probably than not was removed by children in the area. Since the defect was caused by the fault of third parties, we conclude that plaintiffs have not established non-negligent liability and the Sewerage and Water Board of New Orleans is not liable under Art. 2317. We note that the trial court found that “the defendant has no actual nor constructive notice of the missing cover”. Nonetheless, the record does disclose that the water meter box is only inspected on a regular basis approximately once every two months. Further, testimony also disclosed that the water meter box had an accumulation of trash in it and Mrs. Dorothy Allen who lived in the house adjacent to the water meter box testified that it was open to the public for “I would say a little over two weeks”. Thus we conclude that the condition of an open water meter box in a sidewalk was obviously dangerous to a reasonably careful and ordinarily prudent person and that because of the long duration of time that this condition existed, the Sewerage and Water Board had constructive notice of the defect and failed to remedy it. See Mistich v. Matthaei, 277 So.2d 239 (La.App. 4th Cir. 1973) citing Parker v. City of New Orleans, 1 So.2d 123 (La.App.) and others.

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

AFFIRMED.


author: CIACCIO, Judge.

text:
    DRUMM AND ASSOCIATES, INC. dba the Berkshire Apartments v. Mary Boyd, wife of/and Windell V. BOYD.
    No. 12728.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 7, 1982.

      Jacob Kansas, New Orleans, for plaintiff-appellant.
    Jacob Taranto, III, New Orleans, for garnishee-appellee.
    Before GULOTTA, CIACCIO and L0-BRANO, JJ.
   CIACCIO, Judge.

This is an appeal from a judgment dismissing two rules filed by -judgment-creditor, Drumm and Associates, Inc., against the Joseph I. Giarrusso Corporation, Garnishee, seeking a judgment pro confesso, attorney’s fees and costs against the garnishee for failure to timely file answers to interrogatories and traversing the answers subsequently filed by the Giarrusso Corporation.

On November 20, 1980, Drumm filed a petition to make a judgment executory against the judgment debtors, Mr. and Mrs. Windell V. Boyd. Drumm also caused a writ of fieri facias to be issued and filed a supplemental petition together with interrogatories naming the Joseph I. Giarrusso Corporation as garnishee. Service of these documents was requested to be made upon “Joseph I. Giarrusso Corporation, through its agent for service of process: Joseph I. Giarrusso.” The supplemental petition, citation and interrogatories were served upon the Giarrusso Corporation through L. Williams, personnel manager, on December 4, 1980.

Mr. Williams went on vacation and did not give the garnishment papers to Joseph I. Giarrusso until his return. Giarrusso then advised Drumm’s attorney both verbally and by telegram that Windell Boyd was not in the employ of the Giarrusso Corporation but was in the employ of the Wackenhut Corporation.

Since no answers to interrogatories had been filed in the record, Drumm, on March II, 1981, filed a rule for judgment pro confesso, attorney’s fees and costs against the garnishee.

The Constable was directed to make service upon the Giarrusso Corporation through Joseph I. Giarrusso, its agent for service of process, but the rule was again served on “L. Williams, Personnel Manager”.

The hearing on the rule was set for April 7, 1981 but was continued. In the interim, on April 10,1981, the Giarrusso Corporation filed answers to the interrogatories, denying that the defendant, Boyd, was in its employ. On April 23, 1981 Drumm filed a new rule to traverse garnishee’s answer and for judgment pro confesso, attorney’s fees and costs. These rules were properly served upon the Giarrusso Corporation through its registered agent, Joseph I. Giar-russo, and Mr. Giarrusso was also served with a subpoena duces tecum and a subpoena requiring his personal appearance on the trial of the rules.

On April 30, 1981, Drumm filed a supplemental petition, garnishment and interrogatories against the defendant’s actual employer, The Wackenhut Corporation. On May 13, 1981 the Wackenhut Corporation filed its answers to the garnishment interrogatories acknowledging its employment of Windell V. Boyd.

On May 15, 1981, the trial court conducted a hearing on the rules and Joseph I. Giarrusso appeared under subpoena and testified. He stated that he was not served with the original garnishment petition but that he was given the interrogatories by an employee of the Wackenhut Corporation. He stated that he notified counsel for Drumm by telegram, telephonically and through Constable Detweiler, that he was not the defendant’s employer. He stated that the corporate assets of the Joseph I. Giarrusso Corporation, including the trade name, had been sold to the Wackenhut Corporation. This corporation used the trade name, Joseph I. Giarrusso Company, in the conduct of its business. The defendant was known to Mr. Giarrusso, but Giarrusso played no part in the decision to hire the defendant for the Wackenhut Corporation.

The sole issue raised on appeal is whether the trial court committed manifest error in rendering judgment in favor of the garnishee with regard to the rule for judgment pro confesso, attorney’s fees and costs.

On appeal, Drumm argues that it is entitled to a judgment on the garnishment against the Joseph I. Giarrusso Corporation, as the employer of the defendant. Drumm reasons that the liability of the Giarrusso Corporation arises out of the fact that it allowed itself to be held out by the Wacken-hut Corporation as the defendant’s employer. The plaintiff relies upon Louisiana Revised Statute Title 51, Section 281 as authority for its position.

The statute upon which the plaintiff relies requires that one who conducts business under an assumed name must register this fact with the conveyance office. R.S. 51:281. In the case of Callahan v. Crescent Safety Equipment Co., this Court held that the statute in question “is penal and has no effect in civil matters.” (Emphasis Supplied). 242 So.2d 121 at 123 (La.App., 4th Cir., 1970). Therefore, this argument is without merit and was properly rejected by the trial court. Moreover, the record clearly shows that the Joseph I. Giarrusso Corporation was not the defendant’s employer, had no property of the defendant, nor was it indebted to him in any way, as shown by garnishee’s answers to the garnishment interrogatories, his communications by telegram and through the Constable, to the plaintiff’s attorney, and his testimony at the hearing on this matter. The trial court was not clearly wrong in refusing to render judgment in favor of the plaintiff and against the garnishee for the wages sought to be garnished.

The next contention of Drumm is that it is entitled to attorney’s fees and costs for the failure of the Giarrusso Corporation to timely file answers to the garnishment interrogatories. Drumm reasons that the answers were not filed before the rule for the judgment pro confesso was filed and that the telegram sent by the garnishee did not constitute an answer.

Drumm is correct in its position that the answers to interrogatories were not filed before the initial setting of the rule in this matter. The telegram sent by the garnishee did not constitute an answer to the interrogatories. Mid City Investment Co. v. Batiste, 248 So.2d 88 (La.App., 1st Cir. 1970). However, the plaintiff’s argument does not address the controlling issue in this case, namely, whether the garnishee was properly before the court.

Drumm relies upon Louisiana Code of Civil Procedure Article 2413 as authority for the award of attorney’s fees and costs. This article must be read in pari materia with Louisiana Code of Civil Procedure Article 2411, which requires service upon the garnishee. It is firmly established that attorney’s fees and costs are not owing where the garnishee has not been properly served and hence, is not before the court. Mid City Investment Co., Inc. v. Young, 238 So.2d 780 (La.App., 1st Cir., 1970).

In order to effect service of citation or other process against a domestic or foreign corporation, there must be personal service upon one of its agents for service of process. C.C.P. 1261. If the corporation fails to designate an agent for service of process or if there is no registered agent by reason of death, resignation or removal, service may be perfected against the corporation by personally serving any officer, director or resident agent or by personal service on any employee of a suitable age and discretion. C.C.P. 1261.

In this case service of the supplemental petition for garnishment was made upon “L. Williams, pers. mg.”, (Emphasis Supplied), who was not the registered agent nor an officer, director or employee of garnishee. The agent for service of process for the Joseph I. Giarrusso Corporation was Joseph I. Giarrusso. The service on L. Williams was not legal service upon the corporation. Accordingly, the proceedings against the Joseph I. Giarrusso Corporation were null, and attorney’s fees and costs were not owing.

The filing of answers to the garnishment interrogatories by the Giarrusso Corporation did not constitute a general appearance to waive proper service against the corporation. C.C.P. Art. 7. Stelly v. Quick Mfg., Inc., 228 So.2d 548 (La.App., 3rd Cir., 1969), rev. other grounds, 246 So.2d 302, (La.App., 3rd Cir., 1971). Likewise, the response to the subpoena and subpoena duc-es tecum did not subject the garnishee to the jurisdiction of the court. Mid City Investment Co. v. Young, Supra.

Since the garnishee-corporation was not properly before the Court, the garnishment proceedings were null, and no attorney’s fees or costs could flow from such a proceeding. The trial court acted correctly.

For the reasons assigned, the judgment of the lower court is affirmed. Costs are assessed against the plaintiff-garnishor.

AFFIRMED.


text:
    Sidney W. FREECHOU v. THOMAS W. HOOLEY, INC. and Travelers Insurance Company.
    No. 12904.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 7, 1982.

      Law Offices of James J. Morse, James F. Ryan, New Orleans, for defendants-appellants.
    Middleberg, Riddle & Person, Don C. Gardner, Metairie, for plaintiff-appellant.
    Before GULOTTA, CIACCIO and LO-BRANO, JJ.
   CIACCIO, Judge.

This is an action by an employee against his employer to recover workmen’s compensation benefits, attorneys fees and penalties for injuries he allegedly sustained while engaged in the course and scope of his employment. R.S. 23:1021 et seq. After a trial on the merits, the trial court awarded the plaintiff workmen’s compensation benefits at the rate of $95.00 per week for twelve weeks and medical expenses of $1,100. The plaintiff appeals the judgment.

The facts are brief and uncontested. The plaintiff had been employed by the defendant company for thirteen years. He was employed as a truck driver at the time of the accident. His duties consisted of driving a truck and loading and unloading light and heavy supplies from the vehicles. On the date of the accident, November 19, 1976, the plaintiff was working in the vicinity of Airline Highway and Shrewsbury Road. He was carrying a gas cylinder across a set of railroad tracks when he slipped and fell, injuring his left groin area. Following the accident plaintiff took a half hour rest and then completed his work day.

He experienced pain over the weekend and reported the injury when he returned to work on Monday. His supervisor advised him to see a doctor but plaintiff did not seek medical attention until three and one-half months later. In the interim plaintiff carried out his normal work duties but he was routinely furnished with a helper to assist him with those assignments that required him to lift very heavy objects.

The plaintiff visited Dr. William A. Roy, the company physician, on one occasion, March 4, 1977, some three and one-half months after the accident. After an examination, Dr. Roy diagnosed the plaintiff’s injury as a left inguinal hernia. Dr. Roy recommended surgery to alleviate the condition.

On March 28,1977 the plaintiff visited his personal physician, Dr. Patrick Breaux, for a routine medical examination. Dr. Breaux, a cardiologist and internist, had treated the plaintiff for seven years for heart disease. At the time of the visit Dr. Breaux confirmed Dr. Roy’s diagnosis that the plaintiff was suffering from an indirect inguinal hernia of the left side. He also reaffirmed the plaintiff’s heart condition as a prior arteriosclerotic angina and prior myocardial infarction. He prescribed medication for the heart condition and advised plaintiff to lose weight.

The plaintiff continued his work duties with his employer and continued the treatment prescribed by Dr. Breaux. In August, 1977 the plaintiff took a medical leave of absence due to his heart condition. He had an angiogram in mid-year, 1978, and underwent successful open heart surgery in October, 1978. The plaintiff never underwent the corrective hernia surgery. He never returned to work. He was paid no workmen’s compensation benefits nor medical expenses during this period.

This appeal presents two issues for our consideration. The first issue is whether the plaintiff is entitled to temporary total disability compensation benefits from August, 1977, the occasion of his medical treatment and diagnosis, until 1980, when the plaintiff was given medical permission to undergo the hernia operation after his cardiac surgery. The second issue is whether the plaintiff is entitled to penalties and attorney fees for the defendant’s refusal to pay workmen’s compensation. The issues will be addressed separately.

The plaintiff contends, with regard to the duration of his compensation benefits, that he should be entitled to benefits from August, 1977 until 1980. He reasons that the employer takes the employee as he finds him and, because the hernia condition was superimposed upon a pre-existing heart condition, that the plaintiff was disabled from the time of the accident until the time after heart surgery, when his hernia operation could be safely performed.

The employee in a workmen’s compensation action must establish by a preponderance of the evidence that he received a personal injury arising out of and in the course of his employment and that a casual relationship exists between his disability and the accident. R.S. 23:1021, 1031. Parks v. Insurance Company of North America, 340 So.2d 276 (La., 1976).

In this case, the record clearly supports a finding that the plaintiff’s indirect hernia on the left side arose out of and in the course of his employment.

Although the employer takes the employee as he finds him, a workman’s pre-existing condition is only compensable where it has been aggravated or accelerated by a work related accident. Cadiere v. West Gibson Products Co., Inc., 364 So.2d 998 (La., 1978). The record is devoid of evidence that would support a finding that the plaintiff’s heart condition was aggravated or accelerated by the accident which he sustained on November 19, 1976. To the contrary, the record clearly establishes that the plaintiff’s heart condition was relatively stable through 1977 and that the angina did not occur with any frequency until 1978, some eighteen to twenty months after the accident.

In essence, the plaintiff contends that the duration of his disability was extended because his heart condition precluded him from having the corrective hernia surgery.

The facts do not bear out plaintiff’s argument. The hernia surgery had been recommended by Dr. William Roy on March 4, 1977. Dr. Breaux, the plaintiff’s treating cardiologist, testified that at the time he initially examined the plaintiff in March, 1977 up until 1978, when the plaintiff began to have exacerbated coronary symptoms, that it would not have been an undue risk for the plaintiff to undergo hernia surgery. The record reflects that the plaintiff did not avail himself of the opportunity to have the corrective hernia surgery at a time when his heart condition would have permitted its safe performance.

It is well established that where a surgical procedure is relatively minor, the chances of success good, and the risk to the patient minimal, a claimant is not reasonable in refusing the surgery. Cuccia v. Kent Welding and Machine, Inc., 343 So.2d 272 (La.App., 1st Cir., 1977), writ den. 345 So.2d 62. The plaintiff did not act reasonably when he failed to undergo the corrective surgery at the time it was recommended. Furthermore, he had over a year following the accident in which to have the operation safely completed, but he failed to do so. He cannot now complain that his period of disability was extended as it resulted from his own lack of diligence.

The plaintiff next argues that the defendant acted in an arbitrary and capricious manner when it refused to pay him workmen’s compensation and medical expenses for his injury of November 19, 1976, thereby entitling plaintiff to recover attorney’s fees and penalties. R.S. 23:1201.2.

Where an employer’s defense in a compensation case is a serious defense presented in good faith, it is improper for the trial court to award penalties and attorney fees against the employer. Webb v. Turbex Const Co., 368 So.2d 789 (La.App., 2nd Cir., 1979). In the instant case the defendant moved to have the case dismissed because the employee was not seen by a physician within thirty days of the accident. R.S. 23:1221(4)(q)(i). The trial court granted summary judgment on this basis and this court affirmed on appeal. 373 So.2d 195. The Louisiana Supreme Court found the statute to be ambiguous, reversed both judgments, and remanded for trial. The Supreme Court interpreted the statute to mean that a workman must see a physician within 30 'days of such prompt report if timely advised or instructed to do so by his employer. Freechou v. Thomas W. Hooley, Inc., 383 So.2d 337 (La., 1980).

The defendant believed it had a reasonable basis for refusing to pay any compensation benefits, and did not learn to the contrary until judgment was rendered by the Supreme Court. Under these circumstances, we find that the defendant’s actions in refusing to pay the plaintiff workmen’s compensation were not “arbitrary and capricious”. The trial court did not err in its refusal to grant attorney fees and penalties because defendant had a serious defense presented in good faith.

For the reasons assigned, the judgment of the trial court is affirmed. Costs of this appeal are assessed against the plaintiff.

AFFIRMED.


author: LOBRANO, Judge.

text:
    Vera Ann Barcia, wife of/and Alphonse F. BARCIA v. The ESTATE OF Morris KEIL and Chubb/Pacific Indemnity Group.
    No. 12500.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 7, 1982.

      James S. Thompson, Porteous, Toledano, Hainkel & Johnson, New Orleans, for defendants-appellees.
    Joseph B. Amberg, Jr., Amberg & Crosby, Harahan, for plaintiffs-appellants.
    Before GULOTTA, LOBRANO and CI-ACCIO, JJ.
   LOBRANO, Judge.

Vera Ann Barcia and her husband, Alphonse F. Barcia, brought this action against the estate of Morris Keil, and its insurer, Chubb/Pacific Indemnity Group, seeking recovery for injuries sustained by Mrs. Barcia as a result of her falling while descending the concrete stairs leading to the Keil residence. After plaintiffs concluded their case, defendants moved for a directed verdict, which was granted. In his oral reasons the trial judge stated that, although the court was very sympathetic to the alleged injuries of the plaintiff, it could not in its conscience determine by the preponderance of the evidence any negligence on the part of the defendant, or any defects in the design or construction of the stairs giving rise to liability.

The dispositive issue presented by this appeal is whether there was manifest error in the trial court’s conclusion that plaintiff failed to prove by a preponderance of the evidence any actionable negligence on the part of defendant or that any defect existed in the design or construction of the stairs.

Vera Ann Barcia was employed by Mr. Morris Keil as a private duty registered nurse. Mr. Keil was confined to bed rest as a result of cancer and required 24 hour nursing care. On the day of the accident, October 17, 1975, plaintiff was working the 11 p. m. to 7 a. m. shift. The record reflects that sometime between 6 and 7 a. m. on that morning while waiting for her replacement appellant decided to take the pillow and blanket she had used during the night to her car which was parked outside the Keil residence. It had been raining that night and was dark and cloudy at the time of the accident. Mrs. Barcia testified that she wanted to get these items in her car before it started to rain again.

The Keil residence like .many in New Orleans had concrete stairs leading from the front porch to the sidewalk. The stairs were painted with a vinyl mixture and had a railing on the side opposite from the house. Plaintiff testified that while trying to avoid some water which had accumulated on the top step her right foot slipped out from under her. Specifically she stated: “It was just very slippery and my foot slipped right from under me and I was unable to reach the banister.” Further she could not recall whether she was holding the blanket and pillow in one hand or two, and testified that since the railing was obstructed on the approach to the stairway by large columns or posts, it was necessary to take one step before you could reach the banister. As a result of her fall, Mrs. Bar-cia sustained numerous contusions in the lower back area as well as a lumbrosacral sprain.

Plaintiff asserted actionable negligence on the part of the Keils in failing to properly maintain the stairs. In addition, she alleged defects consisting of using vinyl base paint on the steps, only having one handrail which was partially obstructed by columns, and not having a light directly over the stairway.

In order to determine whether the landowner breached a legal duty to protect against a particular risk, our Supreme Court in Shelton v. Aetna Casualty & Surety Co., 334 So.2d 406 (La.1976) set forth the following guidelines:

“(1) What if any duty was owed by the landowner to the plaintiff?
(2) Was there a breach of this duty?
(3) Was the risk and harm caused, within the scope of the protection afforded by the duty breached?”

Id. at 410.

The duties of the landowner for the purpose of determining liability in negligence actions brought pursuant to Articles 2315 and 2316 of the La. Civil Code are no longer defined in terms of the status of the person entering the land. Cates v. Beauregard, 328 So.2d 367 (La.1976). The proper test is “.. . whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others, and, although the plaintiff’s status as a trespasser, licensee, or invitee may in the light of the facts giving rise to such status have some bearing on the question of liability, the status is not determinative.” id at 371. Thus in determining the duty owed by defendant to Mrs. Barcia, it is not necessary to classify her as an invitee or licensee, but rather it is appropriate to ascertain this duty by examining the particular facts before us.

The record reflects that Mrs. Barcia was familiar with the stairs since she traveled them prior to the accident while working for the Keils. Her own testimony indicates she was aware that the steps may have been slick because of the rain, thus requiring her to be cautious. Further she testified that at the time of the accident there were no cracks in same, and that the light from the porch did illuminate the stairs. There was no showing that the vinyl base paint, the inclination of the steps or the lack of two railings made the stairway unreasonably dangerous. The duty owed by the Keil’s was not to insure against the possibility of an accident on their premises, but to act reasonably in view of the probability of injury. Richard v. Sonnier, 363 So.2d 961 (La.App. 3rd Cir. 1978).

We hold that there is no manifest error in the conclusion reached by the trial court in granting a directed verdict in favor of defendant-appellee. In non-jury cases, the appropriate standard for the trial court’s determination of a motion for directed verdict is whether plaintiff has presented sufficient evidence on the case in chief to establish a claim by a preponderance of the evidence. Thomas v. Thom, 408 So.2d 442 (La.App. 1st Cir. 1981). The mere fact that an accident occurred does not necessarily infer that someone was negligent, or that there was a defect in the object utilized. See, Broussard v. Pennsylvania Millers Mutual Insurance Co., 406 So.2d 574 (La.1981); Sanders v. Stutes, 400 So.2d 1159 (La.App. 1st Cir. 1981). As was the trial court, we are sympathetic to the injuries of the plaintiff, but we certainly cannot automatically grant an award because she fell down the stairs.

For the foregoing reasons, the judgment of the lower court is affirmed.

AFFIRMED.

      . Although this matter was a judge trial, the directed verdict statute permits defendant to move for same at the close of plaintiffs case. La.C.C.P. Art. 1810.


text:
    Tisa Mae CARTER v. Johnny LEONARD, III., John Doe, and the American Home & National Union Insurance Groups, d/b/a New Hampshire Insurance Company.
    No. 12853.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 7, 1982.
    Rehearing Denied May 19, 1982.
    Lawrence J. Centola, Jr., Camp, Car-mouche, Palmer, Barsh & Hunter, New Orleans, for New Hampshire Ins. Co.
    Gerald P. Webre, Kerry P. Camarata, Me-tairie, for plaintiff-appellant.
    Before GULOTTA, CIACCIO and LO-BRANO, JJ.
   LOBRANO, Judge.

This suit arises out of an automobile accident which occurred on Friday, August 24, 1979, in which plaintiff-appellant, Tisa Mae Carter, was injured. She was a guest passenger in the automobile of Johnny Leonard, and while in route from Baton Rouge to New Orleans on the I — 10 Expressway a vehicle driven by an unknown defendant cut off Leonard’s automobile forcing him to swerve to the right into the parking lane where he hit an abandoned vehicle. As a result of the impact, plaintiff Tisa Mae Carter was thrown out of the car sustaining injuries for which she now seeks recovery.

Plaintiff brought this suit against Johnny Leonard, III., driver, John Doe, the unknown driver, and New Hampshire Insurance Co., Leonard’s liability and uninsured motorist carrier. After taking Leonard’s deposition, New Hampshire Insurance Co. moved for a partial summary judgment seeking dismissal of the uninsured motorist claim on the grounds that the policy excludes uninsured coverage when the accident is caused by a “hit and run” vehicle, and there is no physical contact with that vehicle. The trial court granted said motion, and plaintiff perfected this appeal.

The sole and dispositive issue in this appeal is whether Leonard’s insurance policy provided coverage for this accident under the terms of the uninsured motorist provisions contained in the policy itself. With reference to the uninsured motorist provisions of the subject policy, the following is pertinent:

“Part IV — Protection against Uninsured Motorists
Coverage J — Uninsured Motorists (Damages for Bodily Injury): To pay all sums which the insured or bis legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury, sickness or disease, including death resulting therefrom, hereinafter called ‘bodily injury,’ sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of both uninsured automobile.”

An uninsured automobile is defined in the policy:

“Uninsured automobile includes a trailer of any type and means:
(b) a hit and run automobile.”

In turn, a “hit and run” automobile is defined as:

“hit-and-run automobile means an automobile which caused bodily injury to an insured arising out of physical contact of such automobile with the insured or with an automobile which the insured is occupying at the time of the accident, provided :” (Emphasis added)

Thus the uninsured motorist portion of the policy does not provide coverage when there has been no actual physical contact between the insured vehicle and the “hit and run” vehicle. The evidence is clear that the vehicle which caused Leonard to swerve off the highway did not have physical contact with the Leonard vehicle, and therefore the trial court followed the provisions of the policy.

Appellant argues that the inclusion of the physical contact provision in the uninsured motorist portion of the aforementioned insurance policy is void because it is contrary to public policy. She contends it attempts to circumvent the legislative purpose of L.S.A. R.S. 22:1406(D)(l)(a)

We disagree. In Collins v. New Orleans Public Service, Inc., 234 So.2d 270 (La.App. 4th Cir. 1970); Oliver v. Jones, 370 So.2d 638 (La.App. 4th Cir. 1979), Writs granted, affirmed 370 So.2d 256 (1979) and most recently in Gex v. Doe, 391 So.2d 69 (La. App. 4th Cir. 1980) we were presented squarely with issues similar to those in the instant ease. In those cases we held that a physical contact provision in the uninsured motorist portion of an automobile liability policy is not against public policy and does not circumvent the legislative intent of La. R.S. 22:1406. Those cases are dispositive of the issues presented in this case. We cannot agree that the “physical contact” exclusion is against public policy when the legislature allows an insured to lower the limits of his uninsured coverage or reject it in toto. See footnote 1. Appellant argues that the insured must agree in writing to the exclusionary provisions since the statute requires a written waiver by the insured when he desires to reject coverage. We find no merit in this argument, as it would lead to the absurd conclusion that every exclusionary provision of a policy would have to be agreed to in writing by the insured.

Additionally plaintiff contends that the language of the physical contact exclusion is ambiguous and “would practically require him (Leonard) to hire a lawyer to procure automobile liability insurance.” We find no merit to this argument. The terms are clear and concise. Further, appellant should keep in mind that she, as a guest passenger, is bound by the terms of the owner-driver’s policy. She can have no greater rights than Leonard in that regard.

Since the record completely supports the conclusion that there was no contact whatsoever between the hit and run automobile and Leonard’s automobile granting of the motion for the partial summary judgment ' was proper.

For the above and foregoing reasons the judgment of the trial court is affirmed.

AFFIRMED.

      . R.S. 22:1406(D)(1)(a) reads as follows:
      “(l)(a) No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, in not less than the limits of bodily injury liability provided by the policy, under provision filed with and approved by the commissioner of insurance, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom; provided, however that the coverage required under this Subsection shall not be applicable where any insured named in the policy shall reject in writing the coverage or selects lower limits. Such coverage need not be provided in or supplemental to a renewal or substitute policy where the named insured has rejected the coverage or selected lower limits in connection with a policy previously issued to him by the same insurer. Any document signed by the named insured or his legal representative which initially rejects such coverage or selects lower limits shall be conclusively presumed to become a part of the policy or contract when issued and delivered, irrespective of whether physically attached thereto.”


text:
    B. M. ALBRECHT ELECTRIC, INC. v. Claude GRIFFIN, et al.
    No. 12778.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 7, 1982.
    Writ Denied May 28, 1982.
    Jerald N. Andry, Gilbert V. Andry, III, New Orleans, for defendant-appellant.
    Before GULOTTA, LOBRANO and CI-ACCIO, JJ.
   LOBRANO, Judge.

This litigation involves the interpretation of an oral contract between a general contractor (Appellant, Claude Griffin) and a sub-contractor (Appellee, B. M. Albrecht Electric, Inc.). Specifically, Griffin claims he contracted with Albrecht to perform the electrical work on a renovation job for the total price of $3,500.00, where as Albrecht contends his contract was on a time and materials basis. The trial court rendered judgment in favor of Albrecht in the amount of $1,169.75, and Griffin perfected this appeal.

Griffin and Albrecht met sometime in late August, 1978, at Griffin’s home to discuss the job. There were no witnesses present. Griffin testified that he explained the specifications of the job to Albrecht, and that Albrecht agreed to do the job for a total price of $3,500.00. Albrecht contends that he was not furnished exact specifications at the time of this meeting and told Mr. Griffin he would do the job on a “time and materials” basis (T.13), his profit coming from the labor charges and a mark-up on materials. He denies ever having agreed to a total price contract. Shortly thereafter, Albrecht began work on the job, and although the record is unclear of the exact date, he was paid $3,500.00. At that point, the job was approximately 50% complete, and Albrecht was informed there would be no further payments. He, then, refused to perform any further work, and on March 14, 1979 submitted a bill for his labor and materials totaling $5,169.75. Griffin paid an additional $500.00 towards this statement, thus leaving a balance of $1,169.75. He refused to pay anything further, and Albrecht filed this suit.

The sole issue on appeal is whether there was manifest error in the trial court’s finding that payment under the contract was on a time and materials basis. The contract was not reduced to writing, and therefore the manner of proving its existence and terms is governed by Article 2277 of the Civil Code which provides:

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

Further, the party claiming the execution of a contract must prove same. Likewise, the party claiming payment or exoneration must prove the extinction of the obligation. La.C.C. Art. 2232.

In Bordlee v. Pat’s Construction Co., Inc., 316 So.2d 16 (La.App. 4th Cir. 1975) at p. 17 we stated.

“In all such civil matters plaintiff must carry the burden imposed upon him by a preponderance of the evidence. This simply means that viewing the evidence as a whole the existence of a fact is more probable than its nonexistence. Lombard v. Sewerage & Water Board of New Orleans, 284 So.2d 905 (Supreme Court 1973); Marcotte v. Travelers Insurance Co., 258 La. 989, 249 So.2d 105 (1971); Hanover Insurance Co. v. Jacobson-Young, Inc., 294 So.2d 564 (La.App. 4th Cir. 1974).”

Our jurisprudence has allowed the requirement of “one credible witness” to be satisfied by the plaintiff alone as long as other corroborating circumstances are shown. Corroborating circumstances under Article 2277 need only be general and need not support or prove every detail of plaintiff’s case. Samuels v. Firestone Tire and Rubber Co., 342 So.2d 661 (La.1977). The trier of fact has much discretion in determining what evidence is corroborative of plaintiff’s case. In the instant case it is clear to this court that the trial court did not abuse its discretion in this regard. The fact that Albrecht was not given complete plans and specifications prior to the job, as well as the statement he submitted and the partial payment by Griffin all constitute corroborating evidence.

The findings of the trial court are entitled to great weight, and should not be disturbed unless manifestly erroneous. We should not substitute our own evaluations of credibility and inferences of fact for those of the trial court where the latter’s opinions are substantiated by the evidence before us. Canter v. Koehring, 283 So.2d 716 (1973); Arceneaux v. Domingue, 365 So.2d 1330 (1978).

For the above and foregoing reasons the judgment of the trial court is affirmed.

AFFIRMED.

      . In the statement itself, Albrecht gave Griffin credit for the initial $3,500.00 paid, thus leaving a statement balance of $1,669.75.