text:
    Brandon MASON v. LIBERTY MUTUAL INSURANCE CO., et al.
    No. 82-C-2826.
    Supreme Court of Louisiana.
    Jan. 10, 1983.
   In re Nick Sagona and Liberty Mutual Ins. Co., applying for writs of certiorari or review, to the Civil District Court. Parish of Orleans. No. 81-11939; Court of Appeal, Fourth Circuit, 423 So.2d 736.

Denied.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. David READO.
    No. 82-KH-2834.
    Supreme Court of Louisiana.
    Jan. 10, 1983.
   In re David Reado, applying for remedial writ. Fourteenth Judicial District Court. Parish of Calcasieu. No. 1850-81.

Writ denied.


text:
    STATE of Louisiana, ex rel. Frank SARTIN v. Honorable Rudolph F. BECKER, III; Clerk of Court/Section “E” Criminal District Court.
    No. 82-KH-2843.
    Supreme Court of Louisiana.
    Jan. 10, 1983.
   In re Frank Sartin, applying for writ of mandamus. Parish of Orleans. No. 276-034.

Denied.


text:
    STATE of Louisiana v. Vernon BRANAUGH.
    No. 82-KP-2849.
    Supreme Court of Louisiana.
    Jan. 10, 1983.
   In re Vernon Branaugh, applying for writs of certiorari, prohibition, and mandamus. Parish of East Baton Rouge. No. 7-75-763.

Denied.

CALOGERO, J., would grant the writ.


text:
    LOUISIANA POWER & LIGHT COMPANY v. Allen Ray HOLMES, et ux.
    No. 82-C-2852.
    Supreme Court of Louisiana.
    Jan. 10, 1983.
   In re Allen Ray Holmes et ux, applying for writs of certiorari and review to the Third Circuit, Court of Appeal, Twelfth Judicial District Court. Parish of Avoyelles. 422 So.2d 684.

Denied.


text:
    Huey Henry BREAUX d/b/a Mimosa Place Apartments v. Benjamin Ray CHAMPAGNE.
    No. 82-C-2853.
    Supreme Court of Louisiana.
    Jan. 10, 1983.
   In re St. Paul Fire & Marine Insurance Company, applying for writ of review and certiorari, Third Circuit, Court of Appeal, No. 82-588. Parish of Lafayette, Fifteenth Judicial District Court, No. 782929.

Denied.

BLANCHE, J., would grant the writ.

WATSON, J., recused.


text:
    Wanda L. McGOWEN v. ST. PAUL GUARDIAN INSURANCE COMPANY.
    No. 82-C-2854.
    Supreme Court of Louisiana.
    Jan. 10, 1983.
   In re Wanda L. McGowen, applying for writ of certiorari and review to the Third Circuit, Court of Appeal, No. 82-269 Ninth Judicial District Court. Parish of Rapides. No. 120,098, Div. “F”. 422 So.2d 637.

Denied.


text:
    STATE of Louisiana v. Ronald R. RYALL, Sr.
    No. 82-KH-1378.
    Supreme Court of Louisiana.
    Jan. 10, 1983.
   In re Ronald R. Ryall, Sr., applying for motion to dismiss. Parish of Orleans. No. 287-871.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Donald VINCENT v. STATE of Louisiana.
    No. 82-KH-1130.
    Supreme Court of Louisiana.
    Jan. 10, 1983.
   In re Donald Vincent, applying for writ of certiorari, and/or review. Parish of East Baton Rouge. No. 2-81-413.

Writ granted. An evidentiary hearing is ordered concerning relator’s claim of a broken plea bargain.


text:
    STATE of Louisiana ex rel. Albert McBRIDE v. Rudolph F. BECKER, III, Judge Section “E”, Orleans Criminal District Court Parish of Orleans State of Louisiana.
    No. 82-KH-1435.
    Supreme Court of Louisiana.
    Jan. 10, 1983.
   In re Albert McBride, applying for writ of mandamus. Parish of Orleans. No. 278-642.

Granted. The trial court is ordered to furnish a Boykin transcript to relator.


text:
    STATE of Louisiana, ex rel. Homer “Buddy” HOFLER v. STATE of Louisiana.
    No. 82-KH-2880.
    Supreme Court of Louisiana.
    Jan. 10, 1983.
   In re Homer “Buddy” Hofler, applying for writs of mandamus and prohibition. Parish of Ouachita.

Granted and transferred to Court of Appeal for action.


text:
    STATE of Louisiana ex rel. Clarence J. KELLY, III v. CLERK OF COURT 25TH JUDICIAL DISTRICT COURT PARISH OF ST. BERNARD State of Louisiana, Chalmette, Louisiana.
    No. 81-KH-2759.
    Supreme Court of Louisiana.
    Jan. 10, 1983.
   In re Clarence J. Kelly, III, applying for writ of prohibition and mandamus. Parish of St. Bernard. No. 56-152.

Denied. Transcript has been forwarded to relator.


text:
    STATE of Louisiana ex rel. James McCOMMICK v. STATE of Louisiana.
    No. 81-KH-3043.
    Supreme Court of Louisiana.
    Jan. 10, 1983.
   In re James McCommick, applying for writs of habeas corpus. Parish of Orleans. Number unknown.

Denied. Moot. Relator has been released from confinement.


text:
    STATE of Louisiana, ex rel. Solomon WILLIAMS v. Ross MAGGIO, Jr., Warden.
    No. 82-KH-1063.
    Supreme Court of Louisiana.
    Jan. 10, 1983.
   In re Solomon Williams, applying for writs of certiorari, habeas corpus and mandamus. Avoyelles Parish. Nos. 45416, 45415, 45414.

Denied.


text:
    STATE of Louisiana ex rel. Mark Dwayne SMITH v. Thomas J. MALIK, Judge 29th Judicial District Court Parish of St. John the Baptist.
    No. 82-KH-1131.
    Supreme Court of Louisiana.
    Jan. 10, 1983.
   In re Mark Dwayne Smith, applying for supervisory and remedial writs. Parish of St. John the Baptist. No. 5-75.

Denied.


text:
    STATE of Louisiana, ex rel., Peter OVERTON, Jr. v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 82-KH-1349.
    Supreme Court of Louisiana.
    Jan. 10, 1983.
   In re Peter Overton, Jr., applying for remedial writs. Parish of Jefferson. No. 74-1831.

Denied.


text:
    STATE of Louisiana ex rel. Frank WILBERT v. Honorable Alwine RAGLAND, Judge.
    No. 82-KH-1413.
    Supreme Court of Louisiana.
    Jan. 10, 1983.
   In re Frank Wilbert, applying for writ of mandamus. Parish of Madison, Sixth Judicial District Court.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Nathan LISTER v. Honorable Fred FUDICKAR, Jr., Judge Div. “A” Parish of Ouachita.
    No. 82-KH-1432.
    Supreme Court of Louisiana.
    Jan. 10, 1983.
   In re Nathan Lister, applying for writ of mandamus. Parish of Ouachita, Fourth Judicial District Court, No. 38978.

Denied.


text:
    STATE of Louisiana, ex rel. Charles EADS v. CLERK OF COURT, 30TH JUDICIAL DISTRICT COURT, PARISH OF VERNON.
    No. 82-KH-1434.
    Supreme Court of Louisiana.
    Jan. 10, 1983.
   In re Charles Eads, applying for writ of mandamus. Vernon Parish. No. 30130.

Denied.


text:
    STATE of Louisiana, ex rel. Leonard J. NICHOLAS v. Joe RIDDLE, Official Court Reporter of Criminal District Court Section “G”.
    No. 82-KH-2589.
    Supreme Court of Louisiana.
    Jan. 10, 1983.
   In re Leonard J. Nicholas, applying for writ of mandamus. Parish of Orleans. No. 279-419.

Denied. Moot.


text:
    STATE of Louisiana, ex rel., Donald R. THOMPSON v. Robert L. STEWART, Clerk 9th Judicial District Court Parish of Rapides Alexandria, La. 71301 et al., & Richard Lee, Judge.
    No. 82-KH-2789.
    Supreme Court of Louisiana.
    Jan. 10, 1983.
   In re Donald R. Thompson, applying for writs of certiorari, prohibition, and mandamus. Parish of Rapides. No. 203515.

Denied.


text:
    STATE of Louisiana ex rel. Ronald MARTIN v. CLERK OF COURT 34TH JDC.
    No. 82-KH-2805.
    Supreme Court of Louisiana.
    Jan. 10, 1983.
   In re Ronald Martin, applying for writ of mandamus and or certiorari. Parish of St. Bernard, Thirty-fourth Judicial District Court.

Denied. Moot. On September 22, 1982 the trial court ordered transcripts to be prepared.


text:
    Earlene SWIDO v. Robert A. BOISVERT, D.C., et al.
    No. 82-C-2821.
    Supreme Court of Louisiana.
    Jan. 10, 1983.
   In re Earlene Swido, applying for supervisory writ and for writ of certiorari or review, to the Ninth Judicial District Court, No. 124600. Parish of Rapides, Third Circuit, Court of Appeal, No. 82-686.

Denied.


text:
    DESIGN SPACE INTERNATIONAL v. G.H.R. ENERGY CORPORATION.
    No. 82-C-2822.
    Supreme Court of Louisiana.
    Jan. 10, 1983.
   In re G.H.R. Energy Corp., applying for writ of certiorari or review, to the Twenty-ninth Judicial District Court. Parish of St. Charles; Court of Appeal, Fifth Circuit, No. 82-C-197.

Denied.


text:
    Patsy Jean Campbell ELLIOTT v. Billy R. ELLIOTT.
    No. 82-C-2825.
    Supreme Court of Louisiana.
    Jan. 10, 1983.
   In re Billy R. Elliott, applying for writs of certiorari and prohibition, Third Circuit, Court of Appeal, No. 82-687, Thirteenth Judicial District Court. Parish of Evangeline. No. 38250-A.

Denied.

CALOGERO, MARCUS and LEMMON, JJ., would grant the writ.


text:
    Ernest KADOR v. Joseph TERRELL, Jr., et al.
    No. 82-C-2842.
    Supreme Court of Louisiana.
    Jan. 10, 1983.
   In re Joseph Terrell, Jr., et al, applying for writ of certiorari. Parish of East Baton Rouge. No. 253-723, Nineteenth Judicial District Court; Court of Appeal, First Circuit, No. 82-CW-0961.

Denied.


text:
    Kathryn Nellie James HACHENBERG v. Charles Deraid HACHENBERG.
    No. 82-C-2917.
    Supreme Court of Louisiana.
    Jan. 10, 1983.
   In re Charles Deraid Hachenberg, applying for writ of review, or other supervisory writs, Fourth Circuit Court of Appeal, No. C-0390; Civil District Court. Parish of Orleans. No. 80-16907.

Denied.


text:
    STATE of Louisiana In the Interest of Amanda GRAY, et al.
    No. 82-CK-2945.
    Supreme Court of Louisiana.
    Jan. 10, 1983.
   In re State of Louisiana, through the District Attorney, Harry F. Connick, applying for writs of certiorari, prohibition, and mandamus. Orleans Parish. Juvenile Court No. 197-352; Court of Appeal, Fourth Circuit, No. C-0376..

Denied.

MARCUS and BLANCHE, JJ., would grant the writ.


text:
    STATE of Louisiana and City of Shreveport v. Ronald BOULT.
    No. 82-K-2632.
    Supreme Court of Louisiana.
    Jan. 10, 1983.
   In re Ronald Boult, applying for writ of certiorari, prohibition and mandamus. Parish of Caddo, City Court of Shreveport. Nos. B-1879, B-1880, B-1881 and B-1882.

Considering the application for writs as a petition for an out-of-time appeal, we grant the application and transfer the matter to the Court of Appeal for the Second Circuit. A sentence to pay a $500 fine coupled with confiscation of defendant’s revolver meets the jurisdictional minimum and makes this case appealable. La. Const, art. 5 § 10(A), CCrP 779. Since no order of appeal was entered prior to July 1, 1982, this Court does not have exclusive appellate jurisdiction; the matter will therefore be transferred to the Court of Appeal. La. Const, art. V, § 5(E).


text:
    DOW CHEMICAL COMPANY v. Freddie H. PITRE, Sr., Sheriff and Tax Collector Parish of Iberville, State of Louisiana and Two Other Consolidated Cases.
    No. 83-C-0069.
    Supreme Court of Louisiana.
    Jan. 13, 1983.
   In re Dow Chemical Company, applying for remedial writs and stay order. Parish of Iberville, Eighteenth Judicial District Court. Nos. 26620 and 26808; First Circuit, Court of Appeal, No. 82-CW-1114.

Writ denied.


text:
    STATE of Louisiana v. Tony HERNANDEZ.
    No. 83-KK-0081.
    Supreme Court of Louisiana.
    Jan. 14, 1983.
   In re Tony Hernandez, applying for writs of certiorari, prohibition and mandamus. Parish of St. Mary. No. 107,667; Court of Appeal, First Circuit, No. 83 KW 0063.

Granted for the limited purpose of transferring this application to the Court of Appeal for its consideration. In Re Gregory Hudson, Writ No. 82-KK-2534; Appeal No. 15,192-KW, (11th Judicial District Court), 2nd Circuit Court of Appeal. La. Const. 1974, Art. 5 § 5(E). Also State v. James Williams, 82-K-2075.

DIXON, C.J., and CALOGERO, J., dissent from the order.


text:
    STATE of Louisiana v. Louis WHITE.
    No. 83-KK-0094.
    Supreme Court of Louisiana.
    Jan. 14, 1983.
   In re Louis White, applying for writs of certiorari, prohibition, mandamus and stay order, to the First Judicial District Court. Parish of Caddo. No. 121481; Court of Appeal, Second Circuit No. 15,375-KW.

Denied. Adequate remedy by review in the event of conviction.


author: DOMENGEAUX, Judge.

text:
    Mrs. Bettye Gray CORLEY, Individually, and as the Administratrix of the Successions of Guy Monroe Corley and Bryan Monroe Corley, Plaintiff-Appellant, v. GENE ALLEN AIR SERVICE, INC., and Oliver James Hunt, et al., Defendants-Appellees.
    No. 82-421.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 22, 1982.
    Rehearings Denied Feb. 7, 1983.
    Cox, Cox & Townsley, Rex D. Townsley, Lake Charles, for plaintiff-appellant.
    Raggio, Cappel, Chozen & Berniard, Christopher Trahan, Lake Charles, Oliver Sehrumpf, Sulphur, for defendants-appel-lees.
    Camp, Carmouche, Palmer, Barsh & Hunter, David R. Frohn and Geralyn P. Garvey, Lake Charles, for defendant-appel-lee-appellant.

      Woodley, Barnett, Cox, Williams & Fen-et, J.L. Cox, Jr., Lake Charles, Tommy C. Rutledge, DeQuincy, for plaintiffs-appel-lees.
    Before DOMENGEAUX, FORET and LABORDE, JJ.
   DOMENGEAUX, Judge.

This case was consolidated at trial and on appeal with Shirley Mae Doyen, Individually, et al v. The Cessna Aircraft Company, et al, 425 So.2d 781 (La.App. 3rd Cir.1982).

The issues in these two cases will be discussed herein, although separate opinions in each case are being rendered on this date.

This case arose as a result of a tragic airplane crash that occurred on March 10, 1979, near DeQuincy, Louisiana, in which four persons were killed, namely: Guy M. Corley, his son, Bryan Monroe Corley, Fred Berryman Doyen, and his son, Kervin Randall Doyen. Plaintiff Bettye Gray Corley is the widow of Guy M. Corley and the mother of Bryan Monroe Corley, while plaintiff Shirley May Doyen is the widow of Fred Berryman Doyen and the mother of Kervin Randall Doyen. Both of the plaintiffs brought suit against Gene Allen Air Service, Inc., the lessor of the aircraft involved in the accident, as well as O.J. Hunt, the owner of the same. Numerous other parties were involved in the litigation, but they are not the subject of this appeal.

The trial court granted motions for summary judgment which were filed by Gene Allen Air Service, Inc., and O.J. Hunt in each of the suits filed by the plaintiffs. The plaintiffs devolutively appealed from these judgments.

For the reasons stated herein, we reverse.

Based on the depositions, interrogatories, and other items of evidence included in the records, the facts of this dispute appear to be as follows:

Defendant Gene Allen Air Service, Inc. provided airplane rentals, charter services, student pilot training, and fueling services at a public airport in DeQuincy, Louisiana. Defendant O.J. Hunt purchased a slightly used Model 172 N Cessna aircraft from Gene Allen on August 28, 1978, entering into a verbal lease — purchase agreement with Allen. By the terms of this contract, Allen would lease the airplane to members of the public and retain twenty-five percent of the rental as his fee, remitting the remainder to O.J. Hunt. Hunt was required by the agreement to pay for the gasoline and oil as well as for any maintenance that the plane needed.

Apparently, Guy Corley and Fred Doyen were interested in leasing an aircraft from Gene Allen Air Service, Inc. On March 9, 1979, Corley attempted to make arrangements with Gene Allen to rent an aircraft to be used the morning of March 10, 1979, in order to do some local flying. Allen replied that he would not be able to accommodate Corley since the plane was scheduled to be chartered at 8 o’clock or 8:30 the following morning. However, Fred Doyen later called and offered to fly early in the morning so that the plane could be returned before the charter was scheduled to leave. Allen agreed to allow Doyen to use the plane at that time. He also advised Doyen that the key to the plane would be left on top of the outside air conditioning unit, so that he could commence his flight without having to wait until 8 o’clock a.m. when Allen normally arrived at his office.

Shortly before 8 a.m. on March 10, 1979, Corley, Doyen, and their two sons, departed from runway 33 at DeQuincy Airport. When Gene Allen and his assistant Jeffery Lavendar, arrived at the airport, they saw the plane sitting at the end of the runway preparing to take off.

Allen testified in his deposition that the weather was cloudy at the time that the plane left the runway. He roughly estimated that the ceiling was about 600 feet, the visibility was probably a couple of miles, and that visual flight rules were not in effect. However, the investigator from the National Transportation Safety Board stated in his accident report that the ceiling was 200 feet obscured with visibility only one-quarter of a mile. Allen further stated that he knew that Corley and Doyen were not qualified to fly airplanes in instrument flight rule conditions, and could only fly when visual flight rules were in effect.

According to Gene Allen, he made no attempt to contact the airplane when he saw it on the runway, despite the weather conditions. Instead, he went about his normal routine of making coffee, checking and balancing the cash register, etc. He did this despite the fact that in the past, he had refused to allow planes which had been rented to be flown when the weather was inclement.

When the plane did not return at its scheduled time, a ground search was commenced. At approximately 5 p.m., some nine hours after the plane had departed, the wreckage of the craft was found in an area within half a mile of the airport. Of the four occupants in the airplane, only Kervin Doyen was still alive at the time that the plane was spotted. He died shortly thereafter enroute to the hospital.

The aircraft in question had been previously equipped with an emergency locator transmitter (E.L.T.). This device emits a signal which assists in quickly locating a downed airplane. However, at some point in time prior to the accident, the E.L.T. was discovered to be inoperative and was removed from the aircraft. The plane was never taken out of operation in spite of this. Furthermore, Gene Allen testified that he normally didn’t make it a practice to inform potential lessees that an E.L.T. had been removed from their aircraft. He also didn’t recall ever warning Fred Doyen or Guy Corley that the E.L.T. had been removed from the plane they were renting. The E.L.T. was not repaired and returned to Gene Allen Air Services until March 19, 1979, some nine days after the fatal crash. Appellants argue that had such a device been on the airplane, that search crews might have spotted the craft in time to save Kervin Doyen’s life.

The issues raised on appeal are:

(1) Whether there was a possibility that the defendants could be found negligent for failing to provide an aircraft equipped with an emergency locator transmitter, such that summary judgment was improperly granted in their favor.

(2) Whether the defendants could potentially be held vicariously liable for the alleged negligent acts of the “pilot in command” of this particular flight, precluding resolution of this suit by summary judgment.

(3) Whether the defendants could be held liable for failing to adequately warn or prevent the decedents from flying due to inclement weather conditions such that summary judgment in the defendant’s favor could not have been granted.

Article 966 of the Code of Civil Procedure describes the motion for summary judgment:

“The plaintiff or defendant in the principal or any incidental action, with or without supporting affidavits, may move for a summary judgment in his favor for all or part of the relief for which he has prayed. The plaintiff’s motion may be made at any time after the answer has been filed. The defendant’s motion may be made at any time.
The motion for summary judgment shall be served at least ten days before the time specified for the hearing. The adverse party may serve opposing affidavits prior to the date of the hearing. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.”

Summary judgment procedure should be used both cautiously and sparingly, and not as a substitute for trial. The burden of proof is on the mover to demonstrate that there is no genuine issue of material fact, and any reasonable doubt as to the existence of such an issue is resolved in favor of a full trial on the merits. The court may not determine or inquire into the merits of the issues raised on a motion for summary judgment, but rather must limit itself to a determination of whether there is a genuine issue of material fact. Mecom v. Mobil Oil Corp., 299 So.2d 380 (La.App. 3rd Cir.1974), writ refused 302 So.2d 308 (La.1974).

In Vermilion Corporation v. Vaughn, 397 So.2d 490 (La.1981), the Supreme Court established a strict burden which must be met by parties moving for summary judgments. In that case, it stated:

“To satisfy his burden the mover must meet a strict standard by a showing that is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact. Adickes v. S.H. Kress & Co., supra [398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142]; Sartor v. Arkansas Nat. Gas Corp., 321 U.S. 620, 64 S.Ct. 724, 88 L.Ed. 967 (1944). The papers supporting mover’s position are closely scrutinized, while the opposing papers are indulgently treated, in determining whether the mover has satisfied his burden. Adickes v. S.H. Kress & Co., supra; 6 Moore’s Federal Practice, § 56.15[3].”

With reference to the absence of the E.L.T. from the aircraft involved in this dispute, the defendants allege that they were properly granted a summary judgment because they were not required by law to have such a device on the plane used by the decedents. They cite the Federal Aviation Administration provisions located in 14 Code of Federal Regulations 91.52 as authority for this proposition. That Regulation generally requires U.S. registered civil airplanes to be equipped with emergency locator transmitters, but it allows several exceptions, including:

“(3) Aircraft while engaged in training operations conducted entirely within a 50-mile radius of the airport from which such local flight operations began;”

Allegedly, the decedents were using the airplane in order to perform some “touch and gos” which the defendants maintain constitute “training operations”. Furthermore, since the crash occurred within one mile of the airport, the defendants argue that the FAA regulations requiring planes to be equipped with E.L.T.s did not apply to the aircraft in question.

However, the defendants failed to take note of the fact that negligence does not solely depend on violation of a statute or rule. Southern Natural Gas Company v. Gulf Oil Corporation, 320 So.2d 917 (La. App. 3rd Cir.1975), writ denied 324 So.2d 812 (La.1976). Unreasonable conduct is not an excuse when one merely complies with minimum regulatory requirements. Southern Natural Gas Company, supra.

We feel that the actions of Gene Allen and O.J. Hunt must be evaluated in light of applicable negligence standards in order to determine their liability for allowing the decedents to use a plane that lacked an emergency locator transmitter. The circumstances surrounding the lease of the craft could possibly indicate negligence on the part of the defendants in their leasing of the plane to the decedents with the knowledge that it lacked an emergency locator transmitter or their failure to warn the men that the E.L.T. had been removed from the craft. According to the strict standards established by the Supreme Court in Vermilion Corporation, supra, we feel that summary judgment was erroneously granted on this issue.

With regard to the second issue concerning the possible vicarious liability of the defendants for the negligence of the “pilot in command” of the flight, the appellants argue that the defendants are responsible by application of 49 U.S.C. § 1301(31), which provides:

“ ‘Operation of aircraft’ or ‘operate aircraft’ means the use of aircraft, for the purpose of air navigation and includes the navigation of aircraft. Any person who causes or authorizes the operation of aircraft, whether with or without the right of legal control (in the capacity of owner, lessee, or otherwise) of the aircraft, shall be deemed to be engaged in the operation of aircraft within the meaning of this chapter.”

Appellants argue that Gene Allen Air Service is a “... person who causes or authorizes the operation of aircraft....” and that it is vicariously liable for the negligence of the “pilot in command”. They cite Sosa, v. Young Flying Service, 277 F.Supp. 554 (So.Div.Texas, 1967) as authority for this proposition.

Defendants on the other hand seek to avoid vicarious liability by virtue of the provisions of 14 Code of Federal Regulations 91.3(a), which states:

“(a) The pilot in command of an aircraft is directly responsible for, and is the final authority as to, the operation of that aircraft.”

They argue that regardless of who was in command of the aircraft at the time that it crashed, that they are absolved completely from vicarious liability since the pilot ultimately determined to be in command of the craft had final authority concerning its safe operation.

We are unable to agree with the defendants’ proposition. The theory of vicarious liability propounded by the plaintiffs would actually allow the negligence of the pilot of the airplane to be imputed to the defendants regardless of their own personal negligence. Such indirect legal responsibility on the part of the defendants could exist in spite of the regulation, supra, that the “pilot in command” is directly responsible for the operation of the aircraft.

In order to determine whether or not the defendants could be held vicariously liable for the acts of the pilot of the aircraft, it is first necessary to ascertain the possible negligence of such pilot. In this case, the trial court had no opportunity to make a finding of fact in this regard. In fact, no determination was ever made by the trial court as to which of the two pilots involved was the “pilot in command”. We are in no position whatsoever to determine or inquire into the negligence of the pilot or pilots. There is a genuine issue of material fact as to their negligence which has yet to be resolved. This issue must be referred back to trial on the merits.

Finally, appellants claim that a genuine issue of material fact exists concerning the negligence of Gene Allen in failing to warn the pilots of the inclement weather conditions that existed when the doomed aircraft took off from Runway 33 at DeQuincy Airport on March 10, 1979. They assert that these conditions required observance of instrument flight rules rather than visual flight rules and that the decedent pilots were not competent to fly under these conditions. Gene Allen Air Service responds in its brief that the status of the weather could not affect the outcome of the suit since the FAA regulations make the pilot in command directly responsible for, and the final authority as to the operation of the aircraft.

Once again, we are unable to conclude that the defendants have met their strict burden of excluding any real doubt as to the existence of any genuine issue of material fact. Simply because the pilot in command is the final authority as to the operation of the aircraft according to the statute does not relieve the defendants of liability for their negligent acts. Southern Natural Gas Company, supra.

The facts are in dispute as to exactly what the weather conditions were at 8 a.m. on March 10, 1979, at DeQuincy Airport. Furthermore, it is unclear to us why Allen failed to stop the decedents from flying the airplane under the alleged weather conditions, or why he made no attempt to contact the craft by radio when he saw it on the runway. These questions must be answered before a determination can be made that the defendants were free from liability.

For the above and foregoing reasons, it is Ordered, Adjudged, and Decreed that the summary judgment granted in favor of Gene Allen Air Service, Inc. and O.J. Hunt be and the same is hereby reversed.

It is further Ordered that this case be remanded back to the trial court for proceedings not inconsistent with this opinion.

All costs on appeal are assessed against Gene Allen Air Services, Inc. and O.J. Hunt.

REVERSED AND REMANDED.

PER CURIAM.

Defendant-appellee, O.J. Hunt, by application for rehearing has correctly called our attention to the fact that he had been previously dismissed from this case (No. 82-421) via summary judgment granted in his favor in the district court on November 5, 1981, and that that judgment dismissing him has not been appealed.

Through error or inadvertance the defendant-appellee, O.J. Hunt, was included as having been granted his motion for summary judgment by judgment of the district court dated April 30, 1982. It was that latter judgment which plaintiff appealed, and upon which this Court proceeded. That single judgment gave the appearance that the defendant-appellee, O.J. Hunt was intended to be designated as an appellee in both consolidated suits, namely this one, No. 82-421, and the other one, No. 82-420, 425 So.2d 786.

In view of the above it is hereby ordered that our reversal of the summary judgment which was granted in favor of the defendant-appellee, O.J. Hunt, be and the same is hereby deleted from our opinion and said defendant is properly dismissed from this case. Additionally, all costs on appeal in this case are now assessed solely to defendant-appellee, Gene Allen Air Service, Inc.

Our action on this application for rehearing in no way affects the status of defendant-appellee, O.J. Hunt as an appellee in the consolidated case of Doyen, 425 So.2d 786.

In all other respects the judgments rendered in these two consolidated cases are to remain unchanged, and with this explanation, the application for rehearing filed by O.J. Hunt is hereby denied.

      . Actually, this argument was only advanced in the consolidated Doyen case, 425 So.2d 786.


text:
    Shirley Mae DOYEN, Individually and as the Administratrix of the Estate of Fred Berryman Doyen and the Estate of Kervin Randall Doyen; and Karen Lynn Doyen Thomason, Individually, and Kenneth Leon Doyen, Individually, Plaintiffs-Appellants, v. The CESSNA AIRCRAFT COMPANY, et al., Defendants-Appellees.
    No. 82-420.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 22, 1982.
    Rehearing Denied Feb. 7, 1983.
    Cox, Cox & Townsley, Rex D. Townsley, Lake Charles, for plaintiffs-appellants.
    Raggio, Cappel, Chozen & Berniard, Christopher Trahan, Lake Charles, Oliver Schrumpf, Sulphur, for defendants-appel-lees.
    Camp, Carmouche, Palmer, Barsh & Hunter, David R. Frohn and Geralyn P. Garvey, Lake Charles, for defendant-appel-lee-appellant.
    Woodley, Barnett, Cox, Williams & Fen-et, J.L. Cox, Jr., Lake Charles, Tommy C. Rutledge, DeQuincy, for plaintiffs-appel-lees.
    Before DOMENGEAUX, FORET and LABORDE, JJ.
   DOMENGEAUX, Judge.

For the reasons stated in the companion case of Mrs. Bettye Gray Corley, Individually and as the Administratrix of the Successions of Guy Monroe Corley and Bryan Monroe Corley v. Gene Allen Air Service, Inc., and Oliver James Hunt, et al, 425 So.2d 781 (La.App. 3rd Cir.1982), it is Ordered, Adjudged, and Decreed that the summary judgment granted in favor of Gene Allen Air Services, Inc. and O.J. Hunt be and the same is hereby reversed.

It is further Ordered that this case be remanded back to the trial court for proceedings not inconsistent with this opinion.

All costs on appeal are assessed against Gene Allen Air Services, Inc. and O.J. Hunt.

REVERSED AND REMANDED.


author: GUIDRY, Judge.

text:
    Action for Declaratory Relief By Frank BOWES, Andrew Hersey and the Lake Charles Municipal Fire and Police Civil Service Board, Plaintiffs-Appellants, v. LAKE CHARLES MUNICIPAL FIRE AND POLICE CIVIL SERVICE BOARD, Defendant-Appellee.
    No. 8832.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1982.
    Rehearing Denied July 26, 1982.

      Thomas P. Quirk, Lake Charles, for plaintiff-appellant.
    E.R. Robinson, III, Lake Charles, for defendant-appellee.
    Alcide J. Gray, Lake Charles, for plaintiff-appellee.
    Before GUIDRY, STOKER and LA-BORDE, JJ.
   GUIDRY, Judge.

This is a suit for a declaratory judgment. Frank Bowes and Andrew Hersey, both sergeants in the Lake Charles City Police Department, and the Lake Charles Municipal Fire & Police Civil Service Board (hereafter the Board) instituted this suit seeking the resolution of a dispute among the parties concerning whether or not Bowes continued to accumulate seniority for promotion purposes while on disability retirement from the Lake Charles City Police Department. The matter was initially submitted for resolution to the Board. However, after an evidentiary hearing, the Board concluded that the issue presented by the parties was one of statutory interpretation. The Board refused to decide the controversy, and instead, suggested that the matter be referred to the district court. Thereafter, the parties petitioned the district court to declare the respective rights of the parties.

After reviewing the minutes of the hearing conducted by the Board and evaluating the facts as stipulated by the parties, the trial court concluded that Bowes was not entitled to credit for seniority for promotion purposes for the period during which he was on disability retirement. Accordingly, the trial court ordered that the Board certify to the City of Lake Charles that Sgt. Andrew Hersey is next eligible for promotion to the position of lieutenant in the Lake Charles Police Department. Plaintiff Bowes appeals from that judgment.

The facts are undisputed. Frank Bowes was hired by the Lake Charles City Police Department on July 19, 1965. On May 15, 1974, Bowes was placed on disability retirement after having been on sick leave for 52 weeks as a result of a job-related injury. On April 15, 1979, Bowes was reactivated into service by the Lake Charles City Police Department subsequent to a finding by the department physician that he was physically able to resume his duties as a police officer.

Andrew Hersey was hired by the Lake Charles City Police Department on October 1,1965. Presumably, he has been in continuous service as a police officer since that time. Prior to Sgt. Bowes reactivation, Sgt. Hersey was at the top of the department promotion list. Subsequent to his reactivation, Bowes was placed next eligible for promotion and Hersey was moved back to second on the promotion list. The record reflects that Bowes was placed ahead of Hersey on the promotion list because Bowes received credit for seniority purposes for the time during which he was on disability retirement. Subsequent to his demotion to second on the aforesaid list, Hersey filed a petition with the Board contending that Sgt. Bowes was not entitled to such credit.

The record reflects that Bowes and Hersey had both attained the rank of sergeant with the Lake Charles City Police Department and both had taken and passed the required test for promotion to lieutenant by the time this action was filed.

The sole issue on appeal is whether Sgt. Frank Bowes continued to accumulate seniority for promotion purposes while on disability retirement.

Under the present facts, a determination of what constitutes seniority for the purpose of advancement in grade is essential. Louisiana Constitution 1921, Art. 14, Sec. 15.1, subd. 3, carried forth as a statute (Louisiana Constitution 1974, Art. X, Sec. 18), contains the definition of seniority applicable within the context of the civil service statute. The aforesaid article provides:

“1. Applicability. This Section applies to any municipality which operates a regularly paid fire and police department and which has a population of not less than thirteen thousand nor more than two hundred fifty thousand according to the latest regular federal census for which the official figures have been made public.
3. Definitions. The following words and phrases when used in this Section shall have the following meaning, unless the context clearly requires otherwise:
t. “Seniority” means the total employment computed for an employee beginning with the last date on which he was regularly and permanently appointed and has worked continuously to and including the date of computation. Time during which an employee has served in the armed forces of the United States subsequent to May 1,1940 shall be construed to mean continuous service and shall be included in the computation of his seniority. Total seniority in the departmental service, including positions of any and all classes, or seniority in any one or more given classes, may be computed for an employee; but in either case employment shall be continuous and unbroken by a resignation or discharge of the respective employee. An employee who is finally discharged or resigns from his position shall forfeit all accumulated seniority. An employee who is suspended and returns to his position immediately following the expiration of his suspension shall not forfeit his seniority accumulated to the date of his suspension, but he shall not be given credit for the lost time at any future compensation.”

Sgt. Bowes contends that the aforesaid statute provides that in order for one to accumulate seniority, an employee’s employment must be continuous and unbroken by either a resignation or discharge of the respective employee. Bowes argues that there is no mention in the statute of the consequences of retirement. Rather, the statute is specific in stating that in the case of resignation or discharge an employee’s ability to accumulate seniority is interrupted. Sgt. Bowes contends that since he neither resigned nor was discharged, his time on disability retirement must be counted towards seniority for promotion purposes. Bowes additionally argues that disability retirement status is analogous to an extended leave of absence. In support of his contention, Bowes avers that while he was on disability retirement he was required by the Department to submit to semi-annual physical examinations to determine if he was able to return to active service. Bowes avers that while on disability retirement status, he was allowed to keep his badge as well as his identification as a police officer. In addition, Bowes argues that in the case of City of Lake Charles v. 74543 Terry T. Boutte (14th J.D.C., Parish of Calcasieu, Nov. 15, 1967), the trial court determined that a person on disability retirement status must be guided by the same rules and regulations regarding conduct as that of a police officer who is on duty. In effect, Bowes contends that since the Department retained control to a significant degree over his conduct and behavior while on disability retirement, he should receive credit for service for the purpose of promotional seniority for that period of time.

Statutory interpretation by the courts is governed by well established principles. In Hanks v. Gulf States Utilities Co., 210 So.2d 345 (La.App. 3rd Cir.1968), reversed on other grounds, 221 So.2d 249 (La.1969), our court noted that in construing a statute, the most important consideration is to determine the intent of the legislature. Appellate courts are required to determine legislative intent from the entirety of the statute and to apply it to the circumstances of the case. See McNamara v. U.P.O., Inc., 389 So.2d 741 (La.App. 2nd Cir.1980), writ denied, 396 So.2d 898 (La.1981). In Breaux v. City of Lake Charles, 338 So.2d 1205 (La.App. 3rd Cir.1976), our court stated:

“It is a well established principle of statutory construction that the meaning of a particular word, clause, or sentence must be determined in light of the statute as a whole, each being construed with respect to and in light of all other provisions to the end that the whole be construed in harmony with the purposes and object therein announced. B.W.S. Corporation v. Evangeline Parish Police Jury, 29S So2d 283 (La.App. 3rd Cir.1974); Danna v. Commissioner of Insurance, 228 So2d 708 (La.App. 1st Cir.1969), writs refused, 255 La. 283, 230 So2d 588. Additionally, words used in the statute should be given their ordinary and usual signification. B.W.S. Corporation v. Evangeline Parish Police Jury, supra.”

Applying the aforesaid principles of statutory interpretation, we conclude that Sgt. Bowes is not entitled to credit for service for seniority purposes for that period of time during which he was on disability retirement. In the first instance, the pertinent statute by its language provides that seniority means the total employment computed for an employee beginning with the last day on which he was regularly and permanently appointed and has worked continuously to and including the date of computation. By giving the ordinary and usual meaning to the aforestated phrase, we conclude that the clear language of the statute provides that seniority is accumulated during that time in which a regular employee of the police department is working continuously by performing those duties and services associated with his position. In other words, for purposes of computing seniority under the statute, there are two requisites: (1) regular and permanent appointment; and (2) continuous service.

During that period in which Sgt. Bowes was on disability retirement, he was not required to nor did he perform those duties and services required of members of the Lake Charles Police Department. Although Bowes did not lose the seniority he accumulated prior to being placed on disability retirement, because he was still regularly and permanently appointed, he is not entitled to. receive credit for service for seniority purposes for time in which he was not working continuously for the police department.

The language of the statute referring particularly to the consequences of a resignation or discharge does not alter or modify the requirements that an employee, to accumulate seniority, must be regularly appointed and work continuously to and including the date of computation. This language in the statute is included to set forth clearly that in computing seniority the time accumulated by an employee prior to resignation or discharge can never be considered. This is also made clear by the very first sentence of the paragraph which indicates that total employment is computed for an employee beginning with the last date on which he was regularly and permanently appointed.

In further support of such interpretation, we observe that the legislature specifically provided that time during which an employee has served in the U.S. Armed Forces subsequent to May 1, 1940 shall be construed to mean continuous service within the meaning of the statute and be included in the computation of employee seniority.

LSA-R.S. 33:2235 provides that when a member of the police department has been placed on disability retirement, he may be reactivated upon a finding by the department physician that he is able to resume his duties. At such time, the department head is directed by statute to restore such employee to employment in the department with only the rank and grade he enjoyed at the time of his removal from service. The aforesaid statute is significantly silent in regard to accumulation of seniority for promotion purposes. Also noteworthy is that the aforesaid statute provides for the restoration to employment of persons on disability retirement once such persons are declared physically able to resume their duties as police officers. Obviously, although one on disability retirement may still be considered a regularly appointed employee, he cannot be considered as continuously working if he must be reactivated in his employment. In addition, we observe that LSA-R.S. 33:2374(B), which pertains to the municipal police employees retirement system, explicitly provides that an employee receives credit for the purposes of the retirement system during that time in which he draws disability benefits. Since the legislature has been so explicit in setting forth the rights of one on disability retirement within the context of the pension and relief fund, we conclude that had the legislature intended for an employee on disability retirement to accumulate seniority for promotion purposes, it would have expressly provided the same within the civil service statute.

Clearly the legislative purpose and intent of the civil service statute, as it pertains to seniority and the promotion of civil service employees, is to reward employees for their longevity within the system by promoting those employees who not only pass the requisite examinations, but also, have the longest periods of continuous service within the system. Surely, this goal would be frustrated if an employee on disability retirement, and thus, not working within the system, is permitted to accumulate seniority for promotion purposes.

For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed to plaintiff-appellant, Sgt. Frank Bowes.

AFFIRMED.


author: STOKER, Judge.

text:
    Roger MUSEMECHE, Plaintiff-Appellee, v. G & J MOBILE HOME SERVICE & SUPPLIES and Winston Industries, Inc., Defendants-Appellants.
    No. 8833.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1982.
    Rehearing Denied July 26, 1982.

      William H. Lambert, Lafayette, for defendants-appellants.
    James E. Fontenot, Abbeville, for plaintiff-appellee.
    Before GUIDRY, STOKER and LA-BORDE, JJ.
   STOKER, Judge.

Plaintiff, Roger Musemeche, instituted this suit in redhibition to recover the price of a mobile home sold to him by defendant G & J Mobile Home Service and Supplies (G & J Mobile Homes) and manufactured by defendant Winston Industries, Inc. (Winston). Plaintiffs suit was against both G & J Mobile Homes and Winston. G & J Mobil Homes filed a third party demand against Winston. Judgment was granted in favor of plaintiff against G & J Mobile Homes for the purchase price of the mobile home, $21,-840.00, and for plaintiff’s attorney’s fees of $1,000.00. Judgment was also rendered in favor of G & J Mobile Homes on its third party demand against Winston for any and all sums which G & J is liable for to the plaintiff.

The trial court’s reasons for judgment indicated judgment should be granted in favor of plaintiff solely against G & J Mobile Homes. The only judgment against Winston was rendered in favor of G & J Mobile Homes on the third party demand. The formal judgment signed by the trial judge was in conformity with the reasons for judgment. Thus, there is no judgment in favor of plaintiff against Winston. Winston appealed suspensively from the judgment in favor of G & J Mobile Homes. G & J Mobile Homes appealed suspensively from the judgment in favor of plaintiff. The plaintiff did not appeal the trial court judgment for failure of the court to grant judgment in his favor against Winston. G & J Mobile Homes has never filed a brief in this court and no appearance was made on its behalf prior to the time the case was called for oral argument on the day the case was docketed, April 15, 1982. Under the circumstances, we consider that G & J Mobile Homes has abandoned its appeal. Under the provisions of Section 5(b) of Rule VII of the Uniform Rules of the Courts of Appeal we ex proprio motu dismiss the appeal of G & J Mobile Homes. In view of this dismissal the only appeal we have before us is that of Winston, the appeal of the judgment in favor of G & J Mobile Homes on the third party demand against Winston.

It is settled that a dealer-seller may have judgment over-against the manufacturer of an item which the dealer sells when the sale is rescinded for redhibition. The right was specifically confirmed by the addition of the second paragraph of LSA-C.C. art. 2531 in 1974. As amended this article reads:

“The seller who knew not the vices of the thing is only bound to repair, remedy or correct the vices as provided in Article 2521, or if he be unable or fails to repair, remedy or correct the vice, then he must restore the purchase price, and reimburse the reasonable expenses occasioned by the sale, as well as those incurred for the preservation of the thing, subject to credit for the value of any fruits or use which the purchaser has drawn from it.
In any case in which the seller is held liable because of redhibitory defects in the thing sold, the seller shall have a corresponding and similar right of action against the manufacturer of the thing for any losses sustained by the seller, and further provided that any provision of any franchise or manufacturer-seller contract or agreement attempting to limit, diminish or prevent such recoupment by the seller shall not be given any force or effect.”

The right has been discussed and construed in a number of recent cases and applies both to a rescission of a sale and to the lesser remedy of reduction in price. Lehn v. Clearview Dodge Sales, Inc., 400 So.2d 317 (La.App. 4th Cir.1981), writ denied, 406 So.2d 608 (La.1981); Dixon Enterprises, Inc. v. Restaurant Products, Inc., 389 So.2d 859 (La.App. 4th Cir.1980); Millin v. Dawson, 387 So.2d 1213 (La.App. 1st Cir.1980); Cernigliaro v. Marquis Marine, Inc., 381 So.2d 886 (La.App. 2nd Cir.1980); Riche v. Krestview Mobile Homes, Inc., 375 So.2d 133 (La.App. 3rd Cir.1979); Reeves v. Great Atlantic & Pacific Tea Co., 370 So.2d 202 (La.App. 3rd Cir.1979), writs denied 371 So.2d 835 (La.1979), 372 So.2d 568 (La.1979); Robertson v. Jimmy Walker Chrysler-Plymouth, Inc., 368 So.2d 747 (La.App. 3rd Cir.1979), writs denied, 371 So.2d 833, 834 (La.1979); Laughlin v. Fiat Distributors, Inc., 368 So.2d 742 (La.App. 3rd Cir.1979) and Daigle v. Robinson Bros., Inc., 368 So.2d 186 (La.App. 1st Cir.1979).

The posture of this case is somewhat unique in that plaintiff’s judgment against G & J Mobile Homes is no longer at issue, but Winston is attacking the validity of that judgment because of G & J Mobile Homes’ judgment over against Winston in its third party demand. In large measure therefore, the arguments on the issues are the same as those which would be made by G & J Mobile Homes if G & J Mobile Homes had pursued its appeal and was resisting the claims of the plaintiff.

In its appeal Winston sets forth four specifications of error in the trial court’s judgment.

Winston alleges that the trial court erred in:

1. Failing to sustain Winston’s motion to dismiss plaintiff’s action to rescind the sale at the conclusion of plaintiff’s case, as provided by LSA-C.C.P. article 1810, based on his failure to prove a redhibitory action under LSA-C.C. article 2520.

2. Failing to find the defects complained of were so minor in nature as to require a diminution in the sale price, rather than rescission of sale.

3. Failing to find the acceptance of $1,000.00 and execution of settlement agreement was final and defendants were released from further obligation of warranty-

4. Alternatively,

a. Failing to give Winston credit for the $1,000.00 payment against any judgment rendered against them.

b. Failing to grant Winston a credit for plaintiff’s continued use of the mobile home.

Although Winston’s answer alleged that the defects complained of did not result from the manufacturing process, the evidence does not sustain the defense, and Winston has not raised this issue on appeal.

FACTS

Plaintiff’s evidence adduced at trial consists of brief testimonies by him and his wife of some of the problems they experienced with the home, photographs of water damage in the home, and an extensive handwritten chronological record or log kept by plaintiff’s wife of the various defects as they occurred or were discovered in the home by the couple. This log was introduced into evidence and consists of the following complaints: extensive leaks in the roof in various parts of the home, including water leaks around the heater vent and the stove vent pipe; a defective fan in the stove vent which diverts cooking smoke into the home; toilets which are not bolted properly to the floor and are loose; a hole in the bathroom floor which admits air into the home; a shower door which will not close properly; a loose shower head in the shower stall; doors and storm doors which leak because they are not properly fitted; knobs on all fixtures which constantly come loose; and loose carpeting in some of the rooms which buckles and causes persons to trip.

Three witnesses testified for the defendants. The consensus of their testimony is that many of the problems plaintiff complained of have been corrected, although some problems still remain, such as the leaking around the vents and doors and the loose carpeting. Dennis Jones, the service manager for Sherwood Homes, testified that the remaining problems in the home except for the roof leaking could be corrected for the sum of $388.00. The two partners of G & J Mobile Homes who testified agreed with that figure, and one of them, Clement Gautreaux, estimated that the roof leaks could be fixed for an additional $200.00.

MOTION TO DISMISS UNDER LSA-C.C.P. ART. 1810 B

Defendant alleges that the first error committed by the trial court is its refusal to grant the motion for dismissal under LSA-C.C.P. art. 1810 made at the close of plaintiffs evidence. In two recent opinions of this Court, Semien v. P.P.G. Industries, Inc., 413 So.2d 956 (La.App. 3rd Cir.1982), and Burrell v. Kirkpatrick, 410 So.2d 1255 (La.App. 3rd Cir.1982), we held that in considering a motion to dismiss in a judge-tried case, the trial judge has a responsibility to weigh and evaluate all the evidence and render a decision based upon a preponderance of the evidence. We find that plaintiff established a cause of action in redhibition by a preponderance of the evidence showing substantial defects in the mobile home. Therefore, there is no merit in defendant’s first specification of error.

REDUCTION IN PRICE IN LIEU OF RESCISSION OF SALE

Defendant Winston alleges as its second assignment of error that the trial court should have confined itself to granting plaintiff a reduction in the sale price of the mobile home rather than granting him a complete rescission of the sale and a return of the full sale price.

The Louisiana Civil Code articles relevant to our inquiry into this issue are as follows:

“Art. 2520. Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice.
******
“Art. 2541. Whether the defect in the thing sold be such as to render it useless and altogether unsuited to its purpose, or whether it be such as merely to diminish the value, the buyer may limit his demand to the reduction of the price.
sfs * sfc s{: s}« ifc
“Art. 2543. The purchaser who has contented himself with demanding a reduction of the price, can not afterwards maintain the redhibitory action.
“But in a redhibitory suit, the judge may decree merely a reduction of the price.”

Plaintiff in this case instituted an action in redhibition only and did not plead in the alternative for a reduction of the price. However, under LSA-C.C. art. 2543, the trial judge was legally empowered to grant the plaintiff a reduction in price (despite the limitation of his claim for relief to redhibition) if the evidence had warranted the granting of the lesser remedy. Defendant Winston argues that the defects in the mobile home of which plaintiff complains are not serious enough to render the mobile home “either absolutely so useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice.” LSA-C.C. art. 2520. Defendant cites two cases, Cassey v. Arnaudville Industries, Inc., 393 So.2d 215 (La.App. 1st Cir.1980), and Wolfe v. Henderson Ford, Inc., 277 So.2d 215 (La.App. 3rd Cir.1973) for the proposition that in every redhibition action, the judge has the power and the duty to decree a quanti minoris (reduction in price) if he believes that the evidence establishes only a partial failure of consideration.

In the Cassey ease, the trial court found that one major defect which could be corrected and five other minor defects in a mobile home were not sufficient to justify a rescission of the sale of the home and ordered a reduction in the price instead. However, we feel that the case of Gonzales v. Southwest Mobile Homes, Inc., 309 So.2d 780 (La.App. 3rd Cir.1975), writ denied, 313 So.2d 239 (La.1975), is more analogous to the case before us. In both the Gonzales case and the case before us, the purchaser of a mobile home discovered several serious defects in the home shortly after moving in, including severe water leakage. Some of these defects were corrected, but in both cases the water leakage could not be stopped after several attempts to correct the problem. This court noted in Gonzales at page 784:

“The testimony of the other witnesses called by the plaintiff and the inspection of the mobile home by the judge revealed that there were leaks around certain windows in the mobile home. Careful evaluation of all the testimony and his personal inspection of the mobile home resulted in the trial judge finding that there was sufficient leakage to render the mobile home so inconvenient that it must be presumed that the plaintiff would not have purchased it had he known of these defects. There was evidence before the trial judge which, upon its reasonable evaluation of credibility, furnished a reasonable factual basis for his findings and conclusions. There has been no showing of manifest error; therefore, we will not disturb his findings. See Canter v. Koehring, 283 So.2d 716 (La.1973).”

See also Dougherty v. Petrere, 240 La. 287, 123 So.2d 60 (La.1960).

In the case before us, in addition to hearing the evidence, the trial judge made a personal inspection of the mobile home. We do not have the benefit of a written itemization of the specific defects which the trial judge found, but we can assume from his comments in open court that he found the defects to be neither minor nor easily reparable as defendant contends they are. The trial judge had evidence before him to justify these conclusions, and there is no indication that these conclusions are clearly wrong. Therefore, we will not disturb the trial court’s judgment on appeal. Canter v. Koehring, supra; and Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

EFFECT OF SETTLEMENT AGREEMENT

Winston specifies as error the trial court’s failure to find that a compromise agreement between Sherwood Homes, a division of Winston Industries, Inc., and plaintiff was a final settlement of plaintiff’s claims and released defendant from all further obligations of warranty. Plaintiff contends that the agreement applied only to certain cosmetic defects and contained a clause continuing the warranties as to the plumbing, electrical system, roof, and floor of the mobile home.

The relevant portions of the agreement are as follows:

“Therefore, in consideration of the payment of the sum of money hereinafter referred to, the parties hereby and herein mutually RELEASE, ACQUIT, and FOREVER DISCHARGE the other from any kind and all claims, damages, causes or action, warranties, guarantees, or other rights, or obligations resulting from any and all manufacturing defects in the above referenced mobile home, with the exceptions of the items listed below*
* * * * * *
“* Warranty on Plumbing, Electrical, roof and ñoor to be in full force until July 16, 1980. Sherwood to complete work on wall of fiberglass tub enclosure and correct defective air-conditioner ducts.” (Emphasis supplied.)

The italicized parts of the above excerpt were added to the agreement at a later date and were initialled by all three signers of the document, Roger Musemeche, his wife, Linda Atchetee Musemeche, and Dennis Jones, signing for Sherwood Homes, a division of Winston Industries, Inc.

From the quoted portion of the agreement it can be clearly seen that the warranties as to the plumbing, electrical system, roof, and floor of the mobile home continued until July 16, 1980, one year after the purchase of the home. Therefore, we fail to see how this agreement can be construed as a complete settlement of all of plaintiff’s claims, particularly since plaintiff’s greatest complaint concerned the leaking in the home, primarily through the roof. Defendant’s third allegation of error has no merit.

CLAIM OF CREDIT FOR $1000 PAID IN “SETTLEMENT”

Winston’s fourth specification of error deserves closer scrutiny. Winston claims that it is entitled to a credit of $1,000 on the sale price of the home if the rescission of the sale is upheld. Winston through its Sherwood Homes division paid $1,000 as consideration for the agreement discussed above, and contends that it should be reimbursed that amount since the purpose of an action in redhibition is to place the parties in the same position they were in before the sale. See Associates Financial Services Company v. Ryan, 382 So.2d 215 (La.App. 3rd Cir.1980) and Gour v. Daray Motor Company, Inc., 373 So.2d 571 (La.App. 3rd Cir.1979), writ granted, 376 So.2d 1270 (La.1979), writs dismissed, 377 So.2d 1033 (La.1979).

Winston made this same argument at the hearing for a new trial. The trial judge in his minute entry explaining his reasons for denying defendant’s application for a new trial stated:

“In the original Judgment rendered against the defendant, the Court took into consideration damages as well as interest in the amount awarded to plaintiff. Thus, the Judgment rendered on June 17, 1981, will not be set aside and annulled as it is proper according to the laws and jurisprudence of the State of Louisiana.” (Emphasis supplied.)

Plaintiff contends that the trial judge did not reimburse defendant for the thousand dollars because he considered this amount to be a partial compensation to plaintiff for the loss of the interest on the purchase money used to buy the mobile home. Plaintiff paid the $21,840.00 purchase price in cash on July 16,1979, and this suit was filed on July 11, 1980. Thus, defendant G & J Mobile Homes had the use of plaintiff’s money for almost a year, and continues to have the use of the money pending this suspensive appeal, although any interest earned on the purchase price since July 11, 1980, is offset by the running of legal interest in favor of the plaintiff from the date of judicial demand.

Possibly the court’s decision to deny a credit for the $1,000 paid to plaintiff may be justified on equitable grounds. However, we will pretermit any consideration of the merit of the trial court’s denial of credit for the $1,000 made on the basis of offsetting credits. In considering the compromise settlement agreement and the evidence, we have already stated that the agreement cannot be construed as a complete settlement of all plaintiff’s claims. As originally written the agreement purported to be a full settlement of all claims. As amended so many items were excepted from the scope of the settlement that we are at a loss to determine what items or deficiencies the $1,000 was supposed to cover. In oral argument we were advised that the $1,000 merely covered “cosmetic” items, whatever that might mean.

Conceivably the $1,000 might cover the correction of certain items which would still fall short of repairing the mobile home so as to remove it from a condition in which it is so absolutely useless, or so inconvenient to use and so imperfect that it must be supposed that the buyer would not have bought it if he had known of the vices or condition. This possibility becomes plausible when we consider that the parties exempted from this agreement any settlement of disputes as to plumbing and problems relating to the electrical system, roof and floors, all major items.

Under the circumstances we will affirm the trial court’s refusal to give Winston Credit for the $1,000 paid in the purported “compromise settlement”.

CLAIM FOR CREDIT FOR PLAINTIFF’S USE OF MOBILE HOME

Defendant further contends that if the rescission of the sale is upheld, the return of the purchase price should be offset by a credit for plaintiff’s use of the mobile home. This contention is based upon the provisions of LSA-C.C. art. 2531 which we have quoted above. It is plaintiff’s position that it is only the non-manufacturing seller who can claim a credit for the value of the use which the purchaser has drawn from the thing purchased. In other words, it is contended that the manufacturer does not have this right.

This issue has been discussed in two recent cases and was resolved against the contentions of plaintiff. In Smith v. Max Thieme Chevrolet Company, Inc., 315 So.2d 82 (La.App. 2nd Cir.1975), the Court of Appeal for the Second Circuit relied upon some very early Louisiana Supreme Court cases, which held “in cases involving cash sales, that the buyer does not have to pay for his use of the thing from the time of the purchase until rescission of the sale where it is offset by the seller’s use of the cash price during the same period.” It was said that the object of Article 2531 is to place the parties in the same position that they were in before the sale as nearly as possible under the circumstances. However, it was concluded that the jurisprudence did not hold, in the rescission of cash sales, that the use of the thing by the purchaser and the use of the purchase money by the seller must in all cases be considered as exact equivalents.

In the Louisiana Supreme Court case of Alexander v. Burroughs Corp., 359 So.2d 607 (La.1978) the Supreme Court took up argument that á bad faith seller should not be entitled to compensation from the purchaser for the use of the thing because LSA-C.C. art. 2545, setting out the obligation of the bad faith seller, omits any reference such as that found in LSA-C.C. art. 2531. The Supreme Court observed that the Courts of Appeal have not generally treated good faith and bad faith vendors differently in compensating the vendors for the buyer’s use of the defective thing. The Supreme Court said also that “credit for a purchaser’s use of a product may be proper in certain instances, even in favor of a bad faith seller.”

However, it also stated that “[cjompensation for the buyer’s use, however, ought not be granted automatically by the court; even the value of an extensive use may be overridden by great inconveniences incurred because of the defective nature of the thing and constant interruptions in service caused by the seller’s attempts to repair.”

In Alexander v. Burroughs Corp., supra, the Supreme Court referred to the “rule of equivalences” and stated that it was based on the earlier Louisiana cases which were referred to in Smith v. Max Thieme Chevrolet Co., supra. Nevertheless, the Supreme Court did note that the use of the thing and the interest on the price should not automatically be deemed equivalents. In this regard the Supreme Court cited Smith v. Max Thieme Chevrolet Co., supra, which held that the court is required to independently assess the respective values received by the buyer and the seller and determine the extent to which one has been compensated by the other.

Alexander involved an accounting computer. The Supreme Court resolved the case stating:

“The facts of the instant case present a situation in which the buyer, rather than the seller, is penalized by the application of the rule of equivalencies. The record is convincing that the defects in the Burroughs computer were so significant and consistent as to render the machine absolutely useless to Peerless. We recognize that for approximately two to three months after the computer’s memory bank was replaced and some wiring was done in the building, the computer functioned with much less difficulty. Nevertheless, we find that the benefit of that use was overridden by the serious malfunction before and after that time which required company employees to monitor the machine’s figures for accuracy, watch payroll checks to make sure that the correct name was recorded, and eventually abandon use of the computer for another accounting machine ten years older, which the company had used prior to the computer purchase.”

We are also impressed by the handling of this issue in two recent cases. In Bison v. LaHood, 390 So.2d 920 (La.App. 2nd Cir.1980) a mobile home was involved. The report of the case lists an itemization of defects somewhat similar to the defects in this case. In that case the court stated:

“Lastly, Sherwood contends that the trial judge erred in refusing to grant it an offset of $200 per month based on the use value of the mobile home to plaintiff. Sherwood presented evidence in the form of testimony showing the rental value of comparable mobile homes in the area. The trial judge considered this testimony but found a rental credit of $50 per month was appropriate in this instance because of the many defects present in the home. The fair rental value was definitely affected by the defective conditions, and the reduction allowed by the trial judge was well within his discretion. See Weaver v. Fleetwood Homes of Mississippi, Inc., supra.”

The Weaver case referred to in the quotation given above is to Weaver v. Fleetwood Homes of Mississippi, Inc., 327 So.2d 172 (La.App. 3rd Cir.1976). The same issue under discussion here was involved there. The resolution made in the Weaver case can best be given by simply quoting the following paragraph from the case:

“Defendants allege as error the trial judge’s refusal to grant them a credit of $200.00 per month for the rental value of the unit. The amount granted by the trial judge was $60.00 per month. Defendants base their contention of error on the testimony of Bacon’s witness, Mrs. Cele Cook, a Natchitoches real estate woman, who was accepted by the court as an expert in rental appraisals. She stated that a fair rental value for the mobile home in the Natchitoches area was $200.00. Defendants argue that this testimony was not contradicted and therefore must be accepted as the figure for the court to use in setting the credit due defendants. We do not agree with this argument. The record reflects the unpleasant conditions in which plaintiff and his family lived as a result of the defects in the mobile home. A reduction in the fair rental value established by the evidence was appropriate in view of the many defects with which the plaintiff and his family were confronted daily while living in the mobile home. We find no abuse of discretion in the trial court’s award in this connection; therefore, it will remain undisturbed.”

A further recent application of the credit rule from this court was involved in DeBlieux v. Arida Industries, Inc., 390 So.2d 233 (La.App. 3rd Cir.1980), writ denied, 396 So.2d 901 (La.1981). The DeBIieux case relied on Alexander Burroughs Corp., supra, and stated that it is clear from the case that the granting of credit for the buyer’s use is discretionary with the trial court. It was urged in DeBIieux that the trial judge had abused its discretion by not allowing a credit for use of a central air conditioning system which was subject to an action in redhi-bition. This court upheld the trial court denial of the credit because plaintiff’s family had been greatly inconvenienced by the poor performance of the air conditioning system. Although it had provided cooling some of the time, breakdowns were very frequent. The unreliable nature of the system made entertaining in the home difficult. This court said:

“Under these circumstances, we cannot say that the trial judge erred in concluding that the value of the plaintiffs’ use of the system was overridden by the inconvenience that they suffered.”

In this particular case whether or not we were to hold that the plaintiffs’ use of the mobile home was overridden by the inconvenience caused by the defects or whether we applied offsetting credits, we feel that we would arrive at the same result. Witnesses for Winston testified that a mobile home of the kind involved in this case would rent for $350 per month. In view of the inconveniences an occupant would have to suffer in using the home, it is our opinion that the value of the rental would have to be reduced in like manner as the cases indicated above. We feel that the rental would have to be reduced to a figure between $100.00 and $150.00. The amount would certainly be offset by any reasonable amount of interest to which the plaintiff would be entitled.

Although the plaintiff takes the position that Winston should not be allowed any credit at all, it urges in the alternative that “should this court allow any credit to the manufacturer for use of the mobile home by the buyer, then Respondent, buyer, is entitled to full interest on the purchase price of from the date of sale.” Interest on the purchase price of $21,840 at 7% per annum amounts to approximately $127.40 per month, a figure within the range of the reduced rental value of the mobile home. We therefore conclude that the value of the use of the mobile home and the value of the interest on the purchase money are equivalent, relatively speaking.

On the basis of the above discussion, we think that the trial court did not commit error in failing to grant any credit to defendant Winston for the use which plaintiff has had of the mobile home.

For the foregoing reasons, the judgment of the trial court is affirmed. The costs of this appeal are assessed to defendant Winston Industries, Inc.

AFFIRMED.

      . The pertinent portion of Section 5 of Rule VII of the Uniform Rules of the Courts of Appeal reads:
      “Section 5. The court may, ex proprio motu:

      (b) Consider abandoned and dismiss the appeal in any case in which the appellant has neither appeared nor filed a brief prior to the time the case is called for oral argument, or the time the case is submitted without oral argument on the docket of the court.
      By ‘appearance’ is meant personal appearance in open court, or the filing of a written instrument negating any intent to abandon the appeal, or the filing of a written pleading;

      . The relevant portion of LSA-C.C.P. art. 1810 is as follows:
      “B. In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.”

      . In denying defendants’ motion for a new trial, the trial judge made this comment: “... as a factual basis, I found that the defects were not minor as you [defendant’s counsel] had argued.”


author: AUGUSTINE, Judge. REDMANN, Chief Judge,

text:
    ASSOCIATED EXECUTIVE CONTROL, INC. v. BANKERS UNION LIFE INSURANCE COMPANY.
    No. 12912.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 30, 1982.
    Rehearing Denied Jan. 14, 1983.
    Writ Granted March 18,1983.

      Harry McCall, Jr., L. Havard Scott, III, Chaffe, McCall, Phillips, Toler & Sarpy, New Orleans, for plaintiff and appellee.
    J. Broocks Greer III of Stone, Pigman, Walther, Wittmann & Hutchinson, New Orleans, for defendant and appellant.
    Before REDMANN, AUGUSTINE and LOBRANO, JJ.

      . Deposition of deLaBarre, Vol. 11, p. 71.

   AUGUSTINE, Judge.

Associated Executive Control, Inc. (A.E.C.) brought this action in contract, and, alternatively, in quasi contract and under the civilian theory of culpa in contra-hendo, to recover the sum of $50,000 allegedly due pursuant to an agreement with Bankers Union Life Insurance Company (BANKERS). By the terms of that agreement, signed by both parties on January 30, 1974, BANKERS promised to pay to A.E.C.

“a consulting, finding and servicing fee totalling $50,000 in the event that a sale is consummated for all of the stock of Security Guaranty Life Insurance Company which is owned by Bankers Union Life Insurance Company ... in the event that you (A.E.C.) are a moving force in the consummation of a transaction which is acceptable in the full and absolute discretion and approval of Bankers Union Life Insurance Company.
It is understood that included in the fee shall be all monies claimable by the law offices of F.D.V. de LaBarre to this Company ... including all services relating to a piece of property generally described as the Monroe Golf Course, Monroe, Louisiana, ...”

The essence of A.E.C.’s claim is that, having found a party ready, willing and able to purchase the stock of Security Guaranty Life Insurance Company (SECURITY), the fee is now due; that although the sale of SECURITY stock was never consummated, this fact is of no consequence, for A.E.C. did find a buyer and negotiate a sale, and the sole reason for the transaction’s failure was BANKER’S last-minute insertion of a provision, contained in the proposed contract between BANKERS and the prospective stock purchaser, Ronald E. Smith, that A.E.C. did not influence buyer Smith in his decision to purchase SECURITY’S stock; that the buyer, Smith, would have purchased the stock, but for the above provision which was a falsity and which Smith could not, in good faith, acknowledge; that A.E.C. explained its position to BANKERS, but BANKERS refused to delete the provision, with the result that the sale of stock was not perfected.

BANKERS resisted these allegations, asserting, among other things, that at no time was there any final agreement between itself and Ronald E. Smith for the purchase of SECURITY stock; that the failure of the transaction was due to causes other than the mentioned provision and that, in any event, A.E.C. is barred from recovery by operation of law, specifically, La.R.S. 37:1431 (before amendment by Act 518 of 1978) and La.R.S. 37:1450, which respectively define “business chance broker” and provide that no person shall receive a brokerage fee unless licensed as a broker under Louisiana law.

The trial court rendered judgment for the plaintiff, A.E.C., finding that A.E.C. fully performed its part of the agreement in good faith, but that BANKERS did not. The lower court also determined that the sole reason for the failure of the sale was BANKERS’ insistence that the buyer, Ronald E. Smith, accede to the questioned provision. In his reasons for judgment, the trial judge did not address the effect of La.R.S. 37:1431 and 37:1450 upon the outcome of this case. We think the application of those statutes is dispositive of this matter.

La.R.S. 37:1431 provides, in part:

“ ‘Business chance broker’ means any person who, for a compensation or valuable consideration, sells or offers for sale, buys or offers to buy, or negotiates the purchase or sale or exchange of a business, business opportunity, or the good will of an existing business for others as a vocation.” Emphasis added.

La.R.S. 37:145o announces the penalty for failure of a real estate or “business chance” broker to obtain a license:

“No person, not licensed in accordance with the provisions of this Chapter, shall recover any fee, claim or charge for brokerage in the courts of this state.”

The first question for our consideration is whether A.E.C.’s activities in connection with the proposed sale of SECURITY’S stock to Roland E. Smith were those of a “broker”, as defined by the above statute.

At the outset, we note that A.E.C. has itself denominated its activities as “negotiation” — its own petition alleges:

“Petitioner sought and negotiated a sale agreement on behalf of defendant, with Ronald E. Smith ... Petitioner retained J. Darrel Jordan, of Olagues, Jordan and Company, to assist in consummating the transaction.”

The petition further avers that A.E.C., through its agent Jordan, acting on behalf of Ronald Smith, delivered a $10,000 deposit to BANKERS and thereby sought to obtain BANKERS’ signature on the final purchase agreement.

We cannot regard A.E.C.’s petition as mere “puffing”, the kind that might arise when a plaintiff tries to plead his case in the strongest possible terms. Later depositions reveal that A.E.C. was indeed thoroughly involved in the transaction as a negotiator. Francois deLaBarre, the secretary-treasurer of A.E.C. (and the party with whom BANKERS originally dealt) testified that his role with regard to purchaser Smith was that, of an attorney as well as a financial advisor, and that these functions were so intermingled as to be inseparable. deLaBarre further stated that the agreement of January 30,1974, by which BANKERS was to honor a consulting, finding and servicing fee, called “for something more than just introducing two people (buyer and seller) to each other . .. ”, and that A.E. C.’s expertise in this kind of transaction was in “problem-solving.” Thus, according to deLaBarre, A.E.C.’s objective was to “accommodate” the needs of buyer and seller by analyzing the financial structures of their respective corporations and by advising them how to reposture their assets so as to comply with state insurance regulations and to reach an optimal financial arrangement.

In truth, A.E.C. (through deLaBarre as well as A.E.C.’s representative, Darrell Jordan) became intimately familiar with the workings of the buying and selling corporations, interpreted the financial situation of each party — buyer and seller — to the other, and operated as an intermediary with the object to facilitate a transaction between them. The record clearly shows that A.E.C., through deLaBarre and Jordan, was the principal conduit for the flow of communication between BANKERS and purchaser Smith. In a word, A.E.C. “negotiated” the sale of SECURITY by BANKERS to Smith, and therefore conducted activities which La.R.S. 37:1431 defines as “brokerage”.

That does not end the matter, however, for to prevail under R.S. 37:1431, appellant BANKERS must demonstrate that A.E.C. is a “broker”, i.e. conducts such activities “as a vocation.”

In its interrogatories to A.E.C., BANKERS inquired whether A.E.C. had ever received payment for, or asserted a claim to recover, a finder’s fee or a broker’s fee with respect to the sale of a business or real estate. A.E.C. responded that it had been previously involved in approximately thirty-four transactions, without specifying whether these involved brokerage fees or merely finder’s fees. But throughout the course of Mr. deLaBarre’s depositions, it was emphasized that A.E.C.’s expertise was that of a “business management advisory service”, and that A.E.C. had applied its expertise in several acquisitions and mergers involving a prominent local entrepreneur. As Mr. deLaBarre explained it, the primary function of A.E.C. in these various transactions was as “specialists in mergers and acquisitions and how to arrange for a buyer what he wants and for a seller what he wants and get his price, plus we have to satisfy the insurance commissioner of the particular state involved that the new buyer is equal to or an improvement over the seller.”

We are convinced that A.E.C.’s activity with regard to BANKERS and Smith was typical of its business in general, and that its dealings with these parties did not constitute an isolated instance of “negotiation.” Where such is the case, we must hold that A.E.C. pursued brokerage activities “as a vocation.” Parr v. Asaff, 322 So.2d 313 (La.App.2d Cir.1975); Sellers v. Evans, 207 So.2d 841 (La.App.2d Cir.1968); Maniscalco v. Glass, 163 So.2d 438 (La.App.2d Cir.1964).

Finding, as we do, that A.E.C. was a “broker” within the meaning of La.R.S. 37:1431, we now consider the application of La.R.S. 37:1450, supra, and the fact that A.E.C. is not licensed as a broker under Louisiana law.

La.R.S. 37:1450 is clear: a “business chance broker”, such as A.E.C., cannot avail itself of the courts of this state to recover any fee for brokerage unless licensed in accordance with Louisiana law. In effect, R.S. 37:1450 deprives an unlicensed broker of a right of action to recover brokerage fees. Parr v. Asaff, supra. The statute is thus penal in nature and expresses the strong policy of this State that unlicensed brokers shall not conduct such business in Louisiana. Moore v. Burdine, 174 So. 279 (Ct.App. Orleans 1937).

It follows that the trial court erred in allowing A.E.C. to recover any sums for its performance of the contract with BANKERS. The judgment awarding A.E.C. $50,-000.00 (with credit due BANKERS in a sum of $12,338.89) is therefore

REVERSED.

REDMANN, C.J., concurs.

REDMANN, Chief Judge,

concurring.

Otherwise subscribing to the court’s opinion, I deem it essential to add that the contingent nature of the fee makes it a fee for brokerage within the statute, rather than payment for financial analysis or counsel or the like. Just as in the ordinary real estate listing agreement, no fee is due under this contract unless a suitable buyer is produced.

      . Prior to amendment by Act 514 of 1978.

      .Apparently it did not immediately occur to either A.E.C. or BANKERS that acting as a “negotiator” might bar recovery for A.E.C. — it was not until several years after the suit was filed that BANKERS raised the defense.

      . Deposition of deLaBarre, Vol. 11, p. 74.

      . Deposition of deLaBarre, Vol. 11, p. 75.

      . Deposition of deLaBarre, Vol. 11, p. 9.

      . Deposition of deLaBarre, Vol. 1, pp. 65-66.


author: YELVERTON, Judge.

text:
    Joe E. FRYAR v. WESTSIDE HABILITATION CENTER, INC.
    No. 82-586.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 11, 1982.
    Gold, Little, Simon, Weems & Bruser, Charles S. Weems, III, Alexandria, for defendant-relator.
    William E. Skye, Provosty, Sadler & de-Launay, H. Brenner Sadler, Harry Ham-mill, of Kramer & Hammill, Gus Voltz, Jr., Alexandria, for defendant-respondent.
    Guy E. Humphries, Jr., Alexandria, for plaintiff-respondent.
    Before DOMENGEAUX, GUIDRY and YELVERTON, JJ.
   YELVERTON, Judge.

WRIT GRANTED AND MADE PEREMPTORY: While injunctive relief is available to a beneficiary against a trustee under La.R.S. 9:2232, the relief authorized is the same as that provided by Articles 3601 through 3613 of the Code of Civil Procedure. Under these articles and the jurisprudence, an injunction in its mandatory form, when it commands the doing of something, cannot be issued until after a hearing on the merits. Red River, Atchafalaya and Bayou Boeuf Levee District v. Noles, 406 So.2d 294 (La.App. 3rd Cir.1981). The hearing below was not a trial on the merits.

Summary proceedings are available for actions brought under the trust code. La. R.S. 9:2331. These proceedings are governed by Code of Civil Procedure articles 2591 through 2596. The plaintiffs and third-party plaintiffs may utilize the summary proceedings provided by these articles.

The judgments of the trial court granting the mandatory injunctions above referred to are reversed and set aside and the said injunctions are ordered dissolved.


author: CUTRER, Judge.

text:
    Donald VALLOT, Sr., Plaintiff-Appellant, v. ANDRUS HOMES, INC., et al., Defendants-Appellees.
    No. 82-137.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1982.

      Edward J. Milligan, Jr., Lafayette, for plaintiff-appellant.
    Jeansonne, Gibbens, Blackwell & Briney, Patrick J. Briney, Lafayette, for defendant-appellee.
    Before FORET, CUTRER and STOKER, JJ.
   CUTRER, Judge.

Donald Vallot, Sr., brought suit for workmen’s compensation benefits against his employer, Andrus Homes, Inc. (82-137). Aetna Insurance Company filed a declaratory judgment suit against Donald Vallot, Sr., seeking to have the court ascertain whether Vallot was entitled to any further compensation payments (82-138). These two suits were consolidated for trial. The trial court ruled against Vallot in both suits. Vallot has appealed in both suits and such appeals are consolidated. Since the law and facts are common to both suits, our opinion in this suit is equally applicable to the companion case of Aetna Insurance Company v. Donald L. Vallot, Sr., 425 So.2d 807 (La.App. 3rd Cir.1982). However, we will render separate judgments in each case.

The sole issue on appeal is whether the trial court erred in ruling that Vallot had failed to prove that any disability was caused by a work-related accident.

The legal principles governing the burden of proof necessary to establish a work-related injury were set forth in the case of West v. Bayou Vista Manor, Inc., 371 So.2d 1146, 1147 (La.1979), as follows:

“In a workmen’s compensation suit, the employee must establish the work-accident causing the injury by a preponderance of the evidence, i.e., ‘the testimony, as a whole, must show that more probably than [not] the employment accident caused the disability.’ Gradney v. Vancouver Plywood Co., Inc., 299 So.2d 347, 349 (La.1974). The causal relationship may be inferred when there is proof of an accident and an ensuing disability without an intervening cause. Johnson v. Travelers Insurance Co., 284 So.2d 888 (La.1973).
“In evaluating the evidence, the trier of fact should accept as true the uncon-tradicted testimony of a witness, even though the witness is a party, at least in the absence of circumstances in the record casting suspicion on the reliability of this testimony. Olds v. Ashley, 250 La. 935, 200 So.2d 1 (1967); Farley v. Ryan Stevedoring Co., 238 La. 1048, 117 So.2d 587 (1960); Bonanno v. Decedue, 186 La. 1041, 173 So. 756 (1937)....”

Vallot contends that his testimony of the occurrence of the accident, along with other evidence presented, establishes that Vallot sustained a work-related accident on April 2, 1979, which resulted in disability. We disagree.

As a general rule, the uncontradict-ed testimony of a workmen’s compensation claimant as to the occurrence of an accident will be accepted as true. However, such a principle is true only if there is an “[a]bsence of circumstances in the record casting suspicion on the reliability of this testimony.” West v. Bayou Vista Manor, Inc., supra; Charleston v. Nabors Trailers, Inc., 381 So.2d 894 (La.App. 2nd Cir.1980).

The trial judge, in his thorough reasons for judgment, and after reviewing the evidence and the discrepancies in Vallot’s testimony, concluded that: “[pjlaintiff’s credibility was very much in question.”

Other than Vallot, no other witnesses were presented who could testify they witnessed the alleged accident which was to have occurred when Vallot was attempting to move a large door in the employer’s premises.

Vallot testified that about 7:00 A.M., April 2, 1979, he was attempting to open a large door which would slide on rollers. In doing so, Vallot stated that he injured his neck and back. He stated that Sullivan Broussard was his assistant at the time and was on duty. He said that he immediately told Broussard to finish opening the door as he had injured his back in his attempt to do so. Vallot testified as follows:

“Q. If this accident happened on the morning of April 2nd as you say, did you tell anybody what happened to you immediately after it happened?
“A. At the time, I had my assistant was Sullivan Broussard; I had told him that, you know, I had caught a strike in my back and that get the rest to finish opening the door.
“Q. So immediately after this happened, on the morning of April 2nd, you told Sullivan?
“A. Oh, yes, sir. Because I mean I could not complete opening the door myself.
“Q. To go open the door and get set up?
“A. Right.
“Q. Mr. Broussard should be able to tell us that same thing?”

Sullivan Broussard was subpoened for trial but no service of the subpoena was made. Vallot’s counsel announced ready for trial and did not request any further subpoena or continuance. The trial court, in its reasons for judgment, stated that the court had located Broussard and issued a subpoena for him. Broussard appeared as the court’s witness, without objection. Brous-sard testified that the first time he learned of any alleged injury was while Vallot was absent from work in order to get medical attention. He stated that he had no recollection of Vallot asking him to open the door for him. He stated that he would have remembered if he had done so.

Vallot also testified that the accident caused injury to both his neck and back. He stated that his neck along with his back had given him trouble following the alleged accident. Vallot saw several physicians and a chiropractor about his condition. An examination of the physician’s testimony reveals that Vallot did not complain of neck injury until December 1980, more than eighteen months after the alleged incident. He had been seeing an orthopedic surgeon, Dr. James R. Lafleur, for his back complaints. Dr. Lafleur stated that Vallot did not complain of neck injury until December 1980, after Vallot had several “adjustments” by a chiropractor.

Vallot called several fellow employees to testify on his behalf. Each testified that Vallot complained about back problems but none of them had any knowledge of an accident having occurred.

We also wish to point out that Vallot saw Dr. Roy Boyd on April 5, 1979, three days after the alleged accident. He told Dr. Boyd that he had experienced back pain on five occasions within the prior three to four years. Vallot had seen physicians for those prior back experiences. Vallot told other doctors that he subsequently consulted that he had never had any prior back problems.

Vallot’s credibility was further brought into question by testimony concerning his social activities following the accident. The trial judge, in his reasons for judgment, pointed out as follows:

“Plaintiffs credibility is further damaged by his testimony that since his injury he has been greatly disabled and that specifically he had never danced since his injury. A co-worker, however, testified seeing Mr. Vallot dancing a disco dance at a club. Mr. Vallot and his wife were doing this rather vigorous style of dancing. Mr. Vallot did not rebut this testimony. In fact, Mrs. Vallot testified they had indeed danced (contrary to her husband’s sworn testimony), but that it was a very slow dance.”

The trial court pointed out other discrepancies in Vallot’s testimony concerning the time of the alleged accident and how the accident happened.

After examining the record as a whole and the contradictions and discrepancies pertaining to the alleged occurrence of an accident and injury, we find that there exists circumstances which “[cjast suspicion on the reliability of claimant’s testimony.” West v. Bayou Vista Manor, Inc., supra. The record supports the trial judge’s conclusion that Vallot has failed to prove that any disability he may have had was caused by a work-related accident. We cannot say that the trial judge’s decision was clearly wrong.

For these reasons, the judgment of the trial court is affirmed. The costs of this appeal shall be paid by plaintiff-appellant, Donald Vallot, Sr.

AFFIRMED.


text:
    AETNA INSURANCE COMPANY, Plaintiff-Appellee, v. Donald L. VALLOT, Sr., Defendant-Appellant.
    No. 82-138.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1982.
    Edward J. Milligan, Jr., Lafayette, for defendant-appellant.
    Jeansonne, Gibbens, Blackwell & Briney, Patrick J. Briney, Lafayette, for plaintiff-appellee.
    Before FORET, CUTRER and STOKER, JJ.
   CUTRER, Judge.

For the reasons assigned in Donald Vallot, Sr. v. Andrus Homes, Inc., 425 So.2d 804 (La.App. 3rd Cir.1982), the judgment of the trial court is affirmed. The costs of this appeal are to be paid by defendant-appellant, Donald L. Vallot, Sr.

AFFIRMED.