author: FORET, Judge.

text:
    MONIES LUMBER COMPANY, INC., Plaintiff-Appellant, v. VILLAGE DU LAC, INC., Defendant-Appellee.
    No. 8130.
    Court of Appeal of Louisiana, Third Circuit.
    May 27, 1981.
    Dragon & Kellner, Robert A. Dragon, Jr., Lafayette, for plaintiff-appellant.

      Poteet & Landry, John G. Poteet, Jr., Lafayette, for defendant-appellee.
    Before GUIDRY, FORET and CUTRER, JJ.
   FORET, Judge.

Monies Lumber Company, Inc. (Plaintiff) brought this action to enforce a material-man’s lien and to recover $12,077.87, together with interest and attorney’s fees. Defendants are Village Du Lac, Inc. (Village); Southern Builders, Inc. (Southern); and Highlands Insurance Company (Highlands).

Village filed an exception of no cause of action which was sustained by the trial court. Plaintiff appeals from the trial court’s judgment.

FACTS

Village (as owner) and Southern (as general contractor) entered into a “U.S. Department of Housing and Urban Development Construction Contract — Cost-Plus” on January 3,1979 for construction work to be performed on land owned by Village. The construction work consisted of the erection of buildings and improvements.

Southern subcontracted some of the work to American Real Estate and Development Corporation (American) which is presently involved in bankruptcy proceedings in Federal court. Plaintiff sold various building materials to American for its use in performing under the subcontract with Southern. American owed plaintiff $12,077.87 for these materials at the time it filed for bankruptcy.

Plaintiff instituted this action on May 27, 1980, alleging that defendants are liable, in solido, for the amount owed it by American. Village filed a peremptory exception on June 18, 1980, alleging that plaintiff’s petition failed to state a cause of action against it. The trial court sustained the exception and plaintiff was granted a devolutive appeal.

Plaintiff’s petition alleged in substance:

That Village was the owner of certain land situated in Lafayette Parish, Louisiana; that Village and Southern entered into a contract under which Southern would construct buildings and improvements on that land; that the contract between Village and Southern had been filed in the office of the Clerk of Court for Lafayette Parish; that a performance bond had been executed by Southern in which Highlands appeared as the surety thereto; that the performance bond had been filed in the office of the Clerk of Court for Lafayette Parish; that American was hired by Southern as a subcontractor to perform certain work in connection with the above mentioned construction; that plaintiff had sold and delivered building materials to American for use in performing its subcontract with Southern; that American had failed to pay for all of these materials and had filed for bankruptcy; that Southern, with Highlands as surety, had executed a bond in the sum of $15,097.34 in favor of the Clerk of Court of Lafayette Parish and the plaintiff; that the last performance of labor on the above mentioned construction had not yet occurred, nor had the contract been accepted by Village, nor had there been a notice of default; and, that plaintiff had a lien and privilege on the above mentioned land, buildings and improvements.

Village’s exception of no cause of action was based on plaintiff’s allegations that Southern and Highlands had executed a bond in favor of the Clerk of Court of Lafayette Parish and plaintiff in the sum of $15,097.34, and further that the contract between Southern and Village and the performance bond executed by Southern, with Highlands as surety, had both been filed in the office of the Clerk of Court for Lafayette Parish.

NO CAUSE OF ACTION

Plaintiff argues that the trial court erroneously sustained Village’s peremptory exception of no cause of action. Plaintiff contends that the factual allegations of its petition disclose a cause of action against Village under the provisions of the “Private Works Act” (LSA-R.S. 9:4801 et seq.).

The peremptory exception of no cause of action tests the legal sufficiency of the petition and is triable on the face of the pleadings. For the purpose of determining the validity of the exception, all well-pleaded allegations of fact are accepted as true, and if the allegations set forth a cause of action as to any part of the demand, the exception must be overruled. Haskins v. Clary, 346 So.2d 193 (La.1977); Pence v. Ketchum, 326 So.2d 831 (La.1976); Hero Lands Company v. Texaco, Inc., 310 So.2d 93 (La.1975); Louisiana State Board of Medical Examiners v. England, 252 La. 1000, 215 So.2d 640 (1968). Liberal rules of pleading prevail in Louisiana and each pleading should be so construed as to do substantial justice. Haskins v. Clary, supra; LSA-C.C.P. Article 865; Pence v. Ketchum, supra; Eschete v. City of New Orleans, 258 La. 133, 245 So.2d 383 (1971). When it can reasonably do so, the court should maintain a petition so as to afford the litigant an opportunity to present his evidence. Haskins v. Clary, supra; Pence v. Ketchum, supra; Hero Lands Company v. Texaco, Inc., supra; Eschete v. City of New Orleans, supra; Erath Sugar Company v. Broussard, 240 La. 949, 125 So.2d 776 (1961).

Plaintiff argues that it alleged in its petition that on November 20, 1979, it timely filed a sworn statement showing the total amount of its claim in, the office of the Clerk of Court for Lafayette Parish and served upon Village a sworn detailed statement of its claim by certified mail, all in accordance with LSA-R.S. 9:4802 . Therefore, plaintiff argues that it properly recorded its privilege on the land owned by Village, together with the buildings and improvements located thereon. LSA-R.S. 9:4801.

However, we note that LSA-R.S. 9:4802(C) provides

“C. The foregoing provisions shall not in any way interfere with or abrogate the right given a contractor under R.S. 9:4841 or an owner under R.S. 9:4842 to bond out any claim or claims recorded, nor shall said provisions apply to any claims recorded or lawsuits existing on July 27, 1966.”

Plaintiff alleges in paragraph 17 of its petition that:

17

“On November 27, 1979, under Act No. 79-30117, of the Office of the Clerk of Court for Lafayette Parish, SOUTHERN BUILDERS, INC., and HIGHLANDS INSURANCE COMPANY as surety filed a bond dated November 26, 1979, in favor of the said Clerk of Court and MONIES LUMBER COMPANY, INC., in the sum of Fifteen Thousand Ninety-seven and M/m Dollars ($15,097.34).”

Therefore, accepting the allegations of paragraph 17 of plaintiff’s petition as true, Southern (the general contractor) had bonded plaintiff’s claims which were recorded against the property owned by Village, pri- or to May 27, 1980, the date on which plaintiff filed this suit.

The Supreme Court, in State ex rel. Pittman Brothers Construction Co. v. Watson, 199 La. 623, 6 So.2d 709 (1942), had occasion to interpret Act 246 of 1926, which is the source provision of LSA-R.S. 9:4841, supra. That Court stated, 6 So.2d, on page 712, that:

“The purpose of the companion legislative Acts Nos. 246 and 248 of 1926 was to provide a method by which contractors on private and public works, by substituting surety bonds in lieu of liens recorded against their work, might obtain the release of funds held by the owners to meet the claims secured by the liens. Certainly it was not the intention of the members of the legislature in enacting those statutes for the relief of contractors that a claim against them should be secured by both a bond and a lien. If such a construction were placed upon the statutes, it would utterly destroy the purpose for which they were enacted, since it is plain that no contractor would avail himself of the right given him by law to bond a claim secured by a lien unless the giving of the bond would have the effect of removing the lien and thereby enable him to obtain payment of the amount due by the owner of the work.
To effectuate the objects for which they were enacted, the statutes, one covering contracts for private work and the other contracts for public work, authorize contractors to convert claims secured by liens recorded in the clerk’s office into claims secured by bonds filed in the clerk’s office. The bonds take the place of the liens and since the lienors are protected by the bonds, no useful purpose could be served by permitting the claims recorded against the contractor to remain uncancelled on the public records.”

See also Cormier v. Pitre, 182 So.2d 340 (La.App. 3 Cir. 1966), writ denied, 184 So.2d 24 (La.1966); Brunet v. Justice, 264 So.2d 743 (La.App. 4 Cir. 1972), writ denied, 266 So.2d 451 (La.1972).

We hold that plaintiff’s petition fails to state a cause of action against the property (in rem) owned by Village as the bond provided by Southern, with Highlands as surety, was substituted for the liens which plaintiff had properly recorded against the property.

Plaintiff then cites LSA-R.S. 9:4806 and argues that under that statute it has a cause of action (in personam) against Village (owner) who is personally liable for its claims. LSA-R.S. 9:4806 provides, in pertinent part:

“§ 4806. Owner’s personal liability
If the bond is found to be insufficient in amount or not to have a proper and solvent surety, or if no bond has been furnished or recorded within the time hereinbefore provided, but the contract has been fully recorded, the owner shall be personally liable to sub-contractors, journeymen, cartmen, workmen, laborers, mechanics, furnishers of material, or any other persons furnishing labor, skill, or material on the said work who recorded and served their claims as provided in R.S. 9:4802, to the same extent as is the contractor, and the said personal liability as well as the privilege hereinabove provided for, shall remain in full force and effect for one year from the date of filing of such claim, and said privilege shall preempt after said time, unless notice of filing of suit is recorded in accordance with R.S. 9:4802.” (Emphasis ours.)

There are no allegations in plaintiff’s petition that the performance bond executed by Southern, with Highlands as surety, was insufficient in amount or without a proper and solvent surety, or that the bond had been untimely recorded. On the contrary, plaintiff alleges in paragraphs 6 and 12 of its petition that:

6

“On January 3, 1979, VILLAGE DU LAC, INC., and SOUTHERN BUILDERS, INC., entered into a “U. S. Department of Housing and Urban Development Construction Contract — Cost-Plus” for construction work to be carried out on the property described in the paragraph above, all as more fully set forth in said ‘Construction Contract’ which is recorded in the office of the Clerk of Court for the Parish of Lafayette, Louisiana, under File No. 79-000169.” (Emphasis ours.)

12

“A ‘U. S. Department of Housing And Urban Development Performance-Payment Bond (Dual Obligee)’ in which HIGHLANDS INSURANCE COMPANY appeared as surety on behalf of SOUTHERN BUILDERS, INC., for the full amount of the ‘Construction Contract’ was included in the document recorded in the Office of the Clerk of Court for the Parish of Lafayette, Louisiana, under File No. 79-000169." (Emphasis ours.)

We find that, accepting the above mentioned allegations of plaintiff’s petition as true, plaintiff has failed to state a cause of action (in personam) against Village.

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

All costs of this appeal are assessed against plaintiff-appellant.

AFFIRMED.

      . LSA-R.S. 9:4802 provides, in pertinent part:
      “.. .. Every person having a claim against the undertaker, general contractor, subcontractor, master mechanic, engineer, or other person undertaking the work, shall serve upon the owner a sworn detailed statement of his claim, which service shall be effected by personal service, registered mail, or certified mail and shall record a sworn statement showing the total amount of his claim in the office of the clerk of court or recorder of mortgages for the parish in which the sad work has been done, which service and recordation shall be made not later than thirty days after recordation in the office of the clerk of court or recorder of mortgages of said parish of notice of acceptance by the owner of the said work, or notice by the owner of the default of the said undertaker, contractor, master mechanic, or engineer, or other person undertaking such work. ...”

      . LSA-R.S. 9:4801(A) provides:
      “§ 4801. Privilege on immovables for labor and materials; rank
      A. Every contractor, subcontractor, architect, engineer, registered land surveyor, master-mechanic, mechanic, cartman, truckman, workman, laborer, or furnisher of material, machinery, or fixtures, exclusive of anyone who rents or leases movable property whose rights shall be governed by the provisions of R.S. 9:4801.1, who performs work or furnishes material for the erection, construction, repair, or improvement of immovable property, or who furnishes oil, gas, electricity, or other materials or supplies for use in machines used in or in connection with the erection, construction, repair, or improvement of any building, structure, or other immovable property, with the consent or at the request of the owner thereof, or his authorized agent or representative or of any person with whom the owner has contracted for such work, has a privilege for the payment in principal and interest of such work or labor performed, or the materials, machinery or fixtures furnished, and for the cost of recording such privilege, upon the land and improvements on which the work or labor has been done, or the materials, machinery, or fixtures furnished.”

      . LSA-R.S. 9:4841 provides:
      “§ 4841. Contractor may bond claims
      When any contractor shall have entered into a contract to perform private works under the laws of this state governing the letting and awarding of such contracts and in conformity with the requirements thereof, the contractor shall have the right to bond any claim or claims which may be filed or recorded against the said work by depositing with the clerk of court of the parish in which such claims are filed or recorded a bond with surety signed by any surety company authorized to do business in the state for an amount equal to the claim plus one-fourth. The bond shall be approved by the clerk of court conditioned that in the event the legality of such claim or claims is established by suit or otherwise, the bond shall remain in full force and effect to protect the interest of the claimant in the premises.”


source: Caselaw Access Project

author: DOUCET, Judge.

license: Public Domain

text:
    Clyde L. NICHOLS, Plaintiff-Appellant, v. UNIROYAL, INC. Defendant-Appellee.
    No. 8148.
    Court of Appeal of Louisiana, Third Circuit.
    May 27, 1981.

      Charles F. Wagner, Pineville, for plaintiff-appellant.
    Gold, Little, Simon, Weems & Bruser, Herbert J. Mang, Jr., Alexandria, for defendant-appellee.
    Before SWIFT, STOKER and DOUCET, JJ.
   DOUCET, Judge.

This is a tort suit. Plaintiff, Clyde L. Nichols, seeks to recover damages for personal injuries received in a work-related accident from defendant, Uniroyal, Inc. At the time of the accident, plaintiff worked for Uniroyal Merchandising Company, Inc., a wholly owned subsidiary of Uniroyal, Inc. The trial judge granted summary judgment in favor of defendant, dismissing plaintiff’s claim upon finding that plaintiff’s exclusive remedy lies in workmen’s compensation since defendant is both a principal and stockholder under LSA-R.S. 23:1032. Plaintiff appeals. We affirm.

Plaintiff assigns as errors the trial judge’s findings that: (1) defendant is a principal under LSA-R.S. 23:1032; and (2) defendant is a stockholder under LSA-R.S. 23:1032.

The facts are undisputed. Plaintiff suffered severe injuries when he fell while attempting to remove a tire from a tire rack. He sued Uniroyal, Inc. to recover damages for his personal injuries alleging that a defect in the design and/or installation of the tire rack caused his injuries.

At the time of the accident, plaintiff was employed by Uniroyal Merchandising Company, Inc. Uniroyal, Inc. owns all of the stock in Uniroyal Merchandising Company, Inc., sets the policies for the management of Uniroyal Merchandising Company, Inc., provides advertising for stores operated by Uniroyal Merchandising Company, Inc. and holds the officers and employees of Uniroyal Merchandising Company, Inc. accountable for the successes and failures of the company’s operations. The principal function of Uniroyal Merchandising Company, Inc. is to provide management and accounting services for stores owned by Uniroyal, Inc. or its subsidiaries. Uniroyal Merchandising Company, Inc. provides no management or accounting services for any other manufacturer or distributor outside of the corporate umbrella of Uniroyal, Inc.

The exclusive remedy provision of LSA-R.S. 23:1032 provides immunity from civil liability to a principal. LSA-R.S. 23:1032 states in pertinent part:

“The rights and remedies herein granted to an employee * * * shall be exclusive of all other rights and remedies of such employee * * * against his employer or any principal * * *. For purposes of this Section, the work “principal” shall be defined as any person who undertakes to execute any work which is a part of his trade, business or occupation in which he was engaged at the time of the injury, or which he had contracted to perform and contracts with any person for the execution thereof.”

Uniroyal, Inc. operates stores throughout the country through which it sells tires and other products. The management and accounting services provided by Uniroyal Merchandising Company, Inc. are a part of Uniroyal, Inc.’s business. Uniroyal Merchandising Company, Inc. exists only to provide such services for Uniroyal, Inc. It is clear Uniroyal, Inc. is a principal within the intendment of LSA-R.S. 23:1032.

Having found that Uniroyal is a principal, we need not consider the issue of whether it is also a stockholder within the meaning of the statute. The judgment of the trial court is affirmed. Plaintiff is to pay the costs of this appeal.

AFFIRMED.

      . In a separate suit, plaintiff asserted his workmen’s compensation claim against Uniroyal Merchandising Company, Inc. for injuries arising out of the accident, receiving workmen’s compensation benefits in the amount of $4,275.00 and medical expenses in the amount of $4,666.04, plus a lump sum settlement of an additional $14,000.00. Suit # 104,146, Ninth Judicial District Court, Rapides Parish, Louisiana.


author: DOMENGEAUX, Judge.

text:
    Brenda LEBLANC and Wilbert Leblanc, Plaintiffs-Appellants, v. K-MART APPAREL FASHIONS CORPORATION, Defendant-Appellee.
    No. 8183.
    Court of Appeal of Louisiana, Third Circuit.
    May 27, 1981.

      Simmons & Nelson, Otha Curtis Nelson, Baton Rouge, for plaintiffs-appellants.
    Stockwell, Sievert, Viccellio, Clements & Shaddock, Bernard H. McLaughlin, Lake Charles, for defendant-appellee.
    Before CULPEPPER, DOMENGEAUX, and LABORDE, JJ.
   DOMENGEAUX, Judge.

Brenda Leblanc sued K-Mart for personal injuries incurred when an allegedly defective door closed onto her left great toe. A twelve member jury returned a verdict in K-Mart’s favor. From the trial court judgment adopting the jury’s verdict plaintiff has appealed.

Plaintiff contends (A) that the jury manifestly erred in concluding that plaintiff failed to prove her case by a preponderance of the evidence, and (B) that the trial court committed manifest error when the judge: (1) asked questions of a witness in the jury’s presence; (2) denied plaintiff’s motion for a new trial after plaintiff discovered one of the jurors worked for the Louisiana Department of Employment Security; and (3) refused to allow plaintiff to subpoena the former jurors to appear and testify at the hearing of plaintiff’s motion for a new trial. For the following reasons we affirm.

THE FACTS

On Friday, June 23, 1978, at 8:15 P.M., plaintiff, plaintiff’s two daughters, ages 2 and 3, plaintiff’s neighbor Theresa Mitchell, and Mrs. Mitchell’s two children, Larry, age 1, and Tessie Pitre, age 7, traveled to the K-Mart shopping store in Lake Charles. At approximately 8:50 P.M., ten minutes before closing time, the group prepared to leave the store with plaintiff leading the way. One of her daughters was walking by her right side and one was riding in the shopping cart plaintiff was pushing. ' A very short distance behind plaintiff, Tessie was pushing a cart in which her little brother was sitting. Tessie’s mother was still at the checkout counter and did not observe the incident which was about to occur.

Plaintiff pushed the cart ahead of her through an open set of double doors. After plaintiff crossed the threshold, she heard Tessie shout that her cart was tipping over. Plaintiff released her own basket, quickly turned around, and caught Tessie’s basket before it could fall over. Tessie’s basket was near the left door and was falling towards the left door when plaintiff stopped its fall.

Immediately after her heroic effort, plaintiff noticed that the left door was closed and that her left great toe was bleeding. It was her belief that the left door had somehow become disengaged from its open position and had slammed upon her toe, injuring the toenail. Plaintiff sued on the basis that the door was defective. K-Mart has denied that the door or any of its parts was defective in any way.

THE EVIDENCE

At the trial, there was no eyewitness who could resolve the issue in favor of either party. Theresa Mitchell testified that she did not witness the incident. All she knew was what plaintiff told her. Plaintiff testified that she did not think that she touched the door, b.ut no other witness could corroborate her version of the incident. Thus, the only evidence supporting plaintiff’s claim that the door closed of its own volition onto her big toe was her own testimony to that effect.

In its defense of plaintiff’s claim, K-Mart called as witnesses Gerald Dunbar, the assistant manager of this K-Mart store at the time of the accident, Vince LeJeune, the store’s director of security and safety, and Raoul Fernandez, who qualified as an expert in the repair, construction, maintenance, and operation of glass safety doors similar to those at the K-Mart store.

Mr. Dunbar testified that periodic safety inspections are performed at the store. Operational efficiency reports, which include specific inspections of the doors and en-tranceway, are filed on a weekly basis. He further testified that there had never been an injury involving the doors and that there were no repairs done on the doors during the month of June, 1978, nor for several months before or after June of 1978.

Mr. LeJeune testified that he performed the weekly safety inspection of the doors and filled out the operational efficiency reports. In fact, the doors were specifically checked on Friday, June 28,1978, the day of the accident, because that was the day that the operational efficiency report was filled out for that week. Additionally, he testified that whenever any problems are discovered with the doors, repairs are immediately performed. However, K-Mart experienced no problems with the doors during the entire month of June. In addition to the weekly reports, Mr. LeJeune testified that he would check the doors on a daily basis whenever he was nearby.

Mr. LeJeune also testified that the doors at K-Mart open and shut very slowly because they have a governing mechanism which controls the speed at which the doors open and shut for the safety of the customers. It takes a substantial shove to close a door if it has been locked open, and a door which has been locked open will not shut unless it is disturbed. Finally, Mr. LeJeune personally inspected the K-Mart store records from 1965 (when the store was constructed) through 1980, and could not find a single incident where the doors had injured anyone.

Mr. Fernandez, in addition to qualifying as an expert, testified that he had been with Allied Glass of Lake Charles for thirty years. Allied Glass, according to Mr. Dunbar, K-Mart’s assistant manager, was the company which periodically inspects the doors of K-Mart and performs maintenance upon them. Mr. Fernandez corroborated Mr. LeJeune’s testimony that the door mechanism has a governor which allows the door to close slowly. If the door is locked open it will shut only if it is pushed or otherwise disturbed. The doors at K-Mart will close if they are struck with a buggy; however, they will close slowly. Also, a small child can push a door and unlock it so that it will close slowly. Mr. Fernandez opined that the doors at the K-Mart store are not unsafe and that they were safe for the general public. He also commented that this type of door does not present ah unreasonable risk of harm to the general public and that, in fact, this type of door may be found “all over town”.

ARTICLE 2317 LIABILITY

The law applicable to the facts in this case is contained in La.C.C. Art. 2317, which provides, in pertinent part:

“Art. 2317. We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody . .. . ”

Beginning with Loescher v. Parr, 324 So.2d 441 (La.1975), our courts have held that a plaintiff who seeks to recover under Article 2317 must prove: (1) that the thing which caused the damage was in the care or custody of the defendant; (2) that the thing had a vice or defect (i. e., it occasioned an unreasonable risk of injury to another); and (3) that his injury was caused by the defect. Jones v. City of Baton Rouge—Parish of East Baton Rouge, 388 So.2d 737 (La.1980); Broussard v. Pennsyl vania Millers Mutual Insurance Company, 398 So.2d 205 (La.App. 3rd Cir. 1981).

The trial court explained these legal principles during the course of instructing the jury. Neither party objected to any of the charges.

THE JURY’S VERDICT

We find no merit in plaintiff’s contention that the jury committed manifest error by finding in K-Mart’s favor. The evidence in plaintiff’s favor was certainly not overwhelming and the jury could easily have found in favor of K-Mart, which it did.

Much evidence was adduced by K-Mart tending to establish that the door was not defective. None of this evidence was impeached by plaintiff or contradicted by any of plaintiff’s evidence, except plaintiff’s own testimony. Based on K-Mart’s evidence, the jury could have concluded, and probably did conclude, that the door was not defective; that instead, either the plaintiff, one of her daughters, or the basket which Tessie was pushing disturbed the door, causing it to close on plaintiff’s toe. Such a conclusion would not be erroneous, especially since no one corroborated plaintiff’s story, and plaintiff herself was not certain that she did not disturb the door. Indeed, since no one, including the plaintiff, witnessed the incident, it is entirely conceivable that plaintiff’s toe was injured by something other than the K-Mart door.

Since plaintiff failed to establish by a preponderance of the evidence that the door was defective, or that her injury was caused by the door, she is not entitled to recover under Art. 2317.

DID THE TRIAL COURT ERR?

1. Asking questions of the witness in the jury’s presence.

During the course of the trial, plaintiff testified that she drew unemployment prior to the June 23, 1978 accident. Regarding her receipt of unemployment compensation, plaintiff and her attorney engaged in the following dialogue near the end of plaintiff’s presentation of evidence:

“BY MR. NELSON:
Q. Mrs. LeBlanc, after Dr. Kopp performed surgery on August 2, 1978, were you able to return to work? A. No, not right then.
Q. Were you still drawing unemployment benefits on August 2, 1978? A. Yes, I was.
Q. Did you have to fill out the report as to whether or not you were able to return to work?
A. You mean at the employment office? Q. Do you have to fill out a form every week and mail it in to the unemployment office?
A. Oh, yeah, you do.
Q. When did your unemployment benefits run out?
A. I believe in October, the latter part.”
* * * * * *

After counsel for both parties had finished questioning the plaintiff, the court questioned her as follows:

“BY THE COURT: Do I understand correctly that you were drawing unemployment compensation at the time you were injured?
BY THE WITNESS: Yes, I was.
BY THE COURT: And you continued to draw it until it ran out in October?
BY THE WITNESS: Yes.
BY THE COURT: And did you certify each week while you were disabled — did you sign a certificate and send it to the Department of Employment Security that you were able and available for work?
BY THE WITNESS: Yes, I did.
BY THE COURT: Thank you. You may step down. (Witness excused)”

Plaintiff claims the court committed manifest error by asking plaintiff questions in the presence of the jury. Plaintiff cites no authority for this position.

A trial judge should avoid commenting on the evidence. Kolmaister v. Connecticut General Life Insurance Company, 370 So.2d 630 (La.App. 4th Cir. 1979), writ denied 373 So.2d 531 (La.1979); Lauro v. Travelers Insurance Company, 261 So.2d 261 (La.App. 4th Cir. 1972), writ denied 262 La. 188, 262 So.2d 787 (1972). However, comments by the trial judge which do not prejudice the jury are not improper and do not constitute a ground for reversal. Britt v. Travelers Indemnity Company, 205 So.2d 880 (La.App. 4th Cir. 1968); Gryder v. Travelers Insurance Company, 193 So.2d 532 (La.App. 1st Cir. 1966).

In the instant case the trial judge’s questioning of the plaintiff was neither improper nor prejudicial. Considering the evidence as a whole, we believe the judge’s questioning of plaintiff had a negligible impact upon the jury’s verdict. Even if we disregard totally all testimony of plaintiff’s receipt of unemployment benefits, the remaining evidence preponderates heavily in K-Mart’s favor. In fact, only plaintiff’s own testimony supports her version of the accident, and even she could not unequivocally state that she did not disturb the open door.

Nevertheless, if we assume, arguendo, that the court did err by questioning the plaintiff, the error was harmless since the responses elicited by the judge’s questions had only moments earlier been elicited by questions from plaintiff’s own counsel. Thus, any effect plaintiff’s answers had upon the jury had already been created by the time the judge questioned her. Therefore, plaintiff is not entitled to reversal on this basis.

2. Denial of plaintiff’s motion for a new trial.

Two days after the jury rendered its verdict, one of the jurors called the district judge to inform him that he (the juror) had notified his superior at the Louisiana Department of Employment Security (LDES), of a possible fraud perpetrated upon the Department by the plaintiff. The judge notified plaintiff’s counsel who then moved for a new trial on the basis that this juror was biased against plaintiff and unfairly influenced the other eleven jurors when they were considering a verdict.

La.C.C.P. Art. 1814 provides:

“A new trial shall be granted if it be proved that the jury was bribed or has behaved improperly so that impartial justice has not been done.”

The fact that one of the jurors worked for the Louisiana Department of Employment Security and felt, after hearing plaintiff testify, that plaintiff may have perpetrated a fraud upon the Department, by certifying that she was able and ready to work when, in fact, she was disabled by the injury to her toe, does not indicate that the jury behaved improperly or that impartial justice has not been done. The juror’s employment with LDES in no way suggests that he was prejudiced against plaintiff just because she collected unemployment, and plaintiff has offered no evidence, apart from the juror’s post-trial actions (which have not been shown to be illegal or otherwise improper), that the jury was guilty of misconduct. Therefore, the trial court correctly decided that plaintiff was not for this reason entitled to a new trial.

3. Refusal to allow plaintiff to subpoena jurors.

Following the disclosure that one of the jurors notified his superior at LDES of a possible fraud perpetrated by the plaintiff, plaintiff’s counsel moved for a new trial and attempted to subpoena the jurors to appear and testify at the hearing on plaintiff’s motion for a new trial. The court prohibited this maneuver on the ground that jurors may not be used to impeach their own verdict and may not be questioned at all as to what transpired during the process of their deliberations. This ruling was correct. Lachney v. Jones, 373 So.2d 595 (La.App. 3rd Cir. 1979), writ denied 376 So.2d 959 (La.1979); Washington v. Lake City Beverage, Inc., 352 So.2d 717 (La.App. 3rd Cir. 1977), writ denied 354 So.2d 1050 (La.1978); Dieudonne v. Guidry, 336 So.2d 990 (La.App. 3rd Cir. 1976), writ denied 339 So.2d 853 (La.1976).

DECREE

Since we find that no error was committed by either the jury or the trial court, the judgment of the district court is affirmed at plaintiff’s cost.

AFFIRMED.

      . There were three sets of double doors — six doors in all — and all were open to allow the free passage of customers leaving the store and to allow store employees to push shopping carts into the store from the parking lot. The doors plaintiff was walking through were opened to the outside.

      . We do not decide here whether a trial judge’s questioning of a witness in a jury case amounts to commenting upon the evidence. Depending on the circumstances, a question might constitute a prejudicial comment, but those circumstances do not exist here.


author: CULPEPPER, Judge.

text:
    Betty Jean FREANO, Plaintiff and Appellee, v. Joseph Delbert ROSENBAUM, Defendant and Appellant.
    No. 8189.
    Court of Appeal of Louisiana, Third Circuit.
    May 27, 1981.
    A. J. Fazzio, Lake Charles, for defendant and appellant.
    George V. Perez, Lake Charles, for plaintiff and appellee.
    Before CULPEPPER, DOMENGEAUX and LABORDE, JJ.
   CULPEPPER, Judge.

This is an action under the civil enforcement provisions of the Uniform Reciprocal Enforcement of Support Act (URESA), LSA-R.S. 13:1661-1688. The wife, currently residing in Tennessee, seeks child support for two of her children from the defendant, a Louisiana resident. After the hearing for support, the juvenile court ordered defendant to pay plaintiff $100 per month in child support payments. Defendant appeals.

The issue we address is whether under URESA an affidavit of the wife made in the initiating state without notice to defendant nor an opportunity for cross-examination is admissible at a hearing in the responding state to determine the wife’s need for child support.

Plaintiff filed her petition for child support on June 2, 1980 in the Juvenile Court of Memphis and Shelby County, Memphis, Tennessee. Attached to her petition is an affidavit made by plaintiff listing, among other things, plaintiff’s income, the names and ages of the children residing with plaintiff and an estimate of the monthly expenses necessary for the support of plaintiff and her children. These documents were transmitted by the Juvenile Court in Tennessee to the Department of Health & Human Resources in Louisiana. Included along with the petition and affidavit is a “Certificate and Order” from the Memphis and Shelby County Juvenile Court which reads as follows:

“CERTIFICATE AND ORDER
“This cause came on for hearing before the Honorable Kenneth A. Turner, Judge of the Juvenile Court of Memphis and Shelby County, Tennessee, from all of which it appears as follows:
“1. That on the 2nd day of July, 1980, a petition was duly filed and verified by the above-named petitioner in this Court in a proceeding against the above-named respondent under the provisions of the Uniform Reciprocal Enforcement of Support Act, Sections 36-901 through 36-929 of the Tennessee Code Annotated, to compel the support of the dependent(s) named in the petition.
“2. That the above-named respondent is believed to be present in Lake Charles, Calcasieu Parish, Louisiana and that the Juvenile Court of Calcasieu Parish, Lake Charles, Louisiana may obtain jurisdiction of the respondent or his property.
“3. That in the opinion of the Court, the petition sets forth facts from which it may be determined that the respondent owes a duty of support and that such petition should be dealt with according to law.
“4. That the Court has examined the sworn petition and all other records in this cause, and it appears to the Court that the need of the dependents) named in the petition for support from the respondent is the sum of $200 per month.
“WHEREFORE, it is hereby ordered, adjudged and decreed that the petition filed herein, this certificate, together with copies of said Uniform Reciprocal Enforcement of Support Act, be transmitted in triplicate to the aforesaid Court.”

Following receipt of certified copies of these documents, a hearing was scheduled before the Calcasieu Parish Juvenile Court in Lake Charles, Louisiana. Under the provisions of LSA-R.S. 13:1666, plaintiff was represented by the district attorney of the Fourteenth Judicial District. Plaintiff was not present at this hearing. At the hearing, objection by counsel for defendant was entered as to the admissibility of the affidavit on the ground that defendant had not been notified of the Tennessee proceedings and thus was unable to contest the accuracy of the affidavit by means of cross-examination. The affidavit was admitted over defendant’s objection, and the judgment was subsequently rendered.

The question as to the admissibility of ex parte testimony where the defendant is denied the opportunity to cross-examine was considered in Carpenter v. Carpenter, 231 La. 638, 92 So.2d 393 (La.1956). There the wife initiated proceedings for child support under URESA in California against her former husband who was in Louisiana. A hearing was held in the California court where the allegations of plaintiff’s petition were proved solely on the basis of the wife’s testimony. The husband had not received notice of the proceeding and did not appear. Thereafter an order for support was issued by the California court ordering defendant to make monthly payments of $160. A hearing was then held in the Family Court of the Parish of East Baton Rouge wherein the only evidence introduced was that of the proceeding in the California court. Based on this evidence, the Louisiana Family Court rendered judgment against the defendant ordering him to make support payments of $75 per month.

The Supreme Court, in concluding the judgment was predicated on improper and insufficient evidence, stated:

“When in his answer, [defendant] denied liability for the alimony herein sought a duty devolved upon plaintiff to prove her claim with legal evidence as in ordinary suits, that is, by means of oral testimony, interrogatories, depositions, etc., with the defendant having the right to cross-examine the witnesses. Yet this plaintiff introduced only, and she relied wholly on, the testimony given by her during the hearing before the California court, at which the defendant was not cited to appear and hence had no opportunity for cross-examination; and it amounted to nothing more than an inadmissible ex parte statement.”

See also Brown v. Brown, 185 So.2d 286 (La.App. 1st Cir. 1966).

We think Carpenter is controlling in the present case. The record shows that no notice of the Tennessee hearing was ever received by defendant. Thus plaintiff’s affidavit represents only an ex parte statement which is inadmissible. In a hearing for enforcement of support under URESA, a plaintiff must prove her case as in any other civil action. Plaintiff has failed to do so in the instant case. We therefore set aside the judgment and remand this case to the Calcasieu Parish Juvenile Court in order that further evidence be received.

We note that Section 1674 of URESA provides a vehicle by which evidence may be adduced where the obligee is not present at the support hearing. That section provides:

“§ 1674. Hearing and continuance “If the obligee is not present at the hearing and the obligor denies owing the duty of support alleged in the petition or offers evidence constituting a defense, the court, upon request of either party, shall continue the hearing to permit evidence relative to the duty to be adduced by either party by deposition or by appearing in person before the court. The court may designate the judge of the initiating court as a person before whom a deposition may be taken.”

Here neither party requested a continuance of the hearing so that further evidence could be adduced. This, however, does not validate a judgment based on improper evidence.

For the reasons assigned, the judgment appealed is reversed and set aside. This case is remanded to the Calcasieu Parish Juvenile Court for further proceedings in accordance with law and the views expressed herein.

REVERSED AND REMANDED.


author: SWIFT, Judge.

text:
    Martin LEGER, Plaintiff-Appellant, v. ST. LANDRY AERIAL APPLICATORS, INC., et al., Defendants-Appellees.
    No. 8198.
    Court of Appeal of Louisiana, Third Circuit.
    May 27, 1981.

      Felix A. DeJean, III, and Mel Credeur, Opelousas, for plaintiff-appellant.
    Lewis & Lewis, Peter Caviness, John Haas Weinstein, Opelousas, for defendants-appellees.
    Before SWIFT, STOKER and DOUCET, JJ.
   SWIFT, Judge.

In August, 1979, Martin Leger contracted with St. Landry Aerial Applicators, Inc. (St. Landry Aerial) for the latter to apply the chemical pesticide 2 — 4D-B to Leger’s 640 acres of soybeans in Avoyelles Parish, Louisiana. Allegedly, the defendant’s pilot improperly mixed and applied the chemical to the acreage, adversely affecting the growth of plaintiff’s soybeans and causing a reduced yield of bushels per acre.

Leger sued St. Landry Aerial and its liability insurer, United States Fire Insurance Company (United States Fire), for damages. The latter filed a motion for summary judgment on the ground that the alleged damages to plaintiff’s crop were not covered by its insurance policy because of the following exclusionary clause therein stating that it does not apply:

“17. to injury to or destruction of any property in or upon the field, adjacent field, area or premises owned, occupied, rented or in the care, custody or control of the farmer, owner or grower for whom the aerial application is being performed by the Insured.”

The trial judge granted the motion and dismissed plaintiff’s petition as to United States Fire. From this judgment the plaintiff has appealed.

Plaintiff-appellant contends that the trial court erred in its interpretation of the insurance policy exclusion. He asserts that the general scheme of the policy’s exclusions indicates that Exclusion 17 is not a general exclusion of all property but rather is a specific exclusion of equipment, farm implements and animals in the fields. He also argues that if Exclusion 17 does exclude all property then it contradicts Exclusion 15, which says the policy is inapplicable “to bodily injury to or sickness, disease or death of any person, or to injury to or destruction of property arising out of the use of chemicals, unless all aircraft operated by the Insured for the purposes of aerial application are insured by the Company.”

We disagree.

Plaintiff’s claim that “property in or upon the field” as used in Exclusion 17 does not apply to standing crops is contrary to Louisiana Civil Code Article 463 which provides:

“Buildings, other constructions permanently attached to the ground, standing timber, and unharvested crops or ungath-ered fruits of trees, are component parts of a tract of land when they belong to the owner of the ground.”

The Louisiana Supreme Court in interpreting former Article 465 (now Article 463) stated that crops are property whether they be immovable when attached to the land or movable when severed. Humble Pipe Line Co. v. William T. Burton Industries Inc., 253 La. 166, 217 So.2d 188 (1968). The 1978 revision to Title 1 of Book 2 of the Louisiana Civil Code of 1870 did not alter the status of standing crops. Unquestionably, crops are property under Louisiana law.

It is undisputed in this case that the crop allegedly damaged belonged to plaintiff, who occupied the field and was the farmer for whom the aerial application of the chemical was being performed by St. Landry Aerial. Therefore, its injury or destruction was clearly excluded from policy coverage by the clause quoted hereinabove.

Exclusion 15 appears to exclude all property and personal injury damages arising from the use of chemicals unless ail of the insured’s aircraft are insured by United States Fire. Exclusion 17 specifically excludes damages to property in or upon the land of the person for whom the aerial service is being performed even if all of the insured’s planes are insured by the policy. We do not view these two exclusions as inconsistent.

Although we are mindful that ambiguous policies are to be construed in favor of the insured, we cannot agree with plaintiff’s contention that the policy here is ambiguous. The wording of Exclusion 17 is clear.

The record shows that there is no genuine issue between the parties as to any material fact. The only issue between the plaintiff and this insurer is whether standing crops are “property in or upon the field” as that term is used in Exclusion 17 of the insurance contract. This is a legal, not a factual issue. As the inescapable conclusion is that the plaintiff’s soybeans were such property, the exclusion is applicable and the trial judge was eminently correct in granting the defendant insurer’s motion for summary judgment.

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

AFFIRMED.


author: GUIDRY, Judge.

text:
    Sandra A. JOFFORION, Plaintiff-Appellee, v. LEGLUE BUICK, INC., Defendant-Appellant.
    No. 8205.
    Court of Appeal of Louisiana, Third Circuit.
    May 27, 1981.

      Adcock, Dupree & Shows, Michael V. Clegg, Baton Rouge, for defendant-appellant.
    Kennedy & Yeager, Ralph W. Kennedy, Alexandria, for plaintiff-appellee.
    William P. Polk, Alexandria, for defendant-appellee.
    Before GUIDRY,- FORET and CUTRER, JJ.
   GUIDRY, Judge.

This is a redhibitory action instituted by plaintiff, Sandra A. Jofforion, against defendants, Leglue Buick, Inc., hereafter Le-glue, and General Motors Corporation. Plaintiff seeks rescission of the sale of a used 1977 Buick Regal automobile, and in addition to the return of the purchase price, prays for attorney’s fees. Following institution of the instant action by the plaintiff, Leglue filed a third party demand against General Motors Corporation.

The trial court determined that the defects in the used vehicle were not so serious as to warrant a rescission of the sale, however, concluded that plaintiff was entitled to a reduction in the purchase price of the vehicle in the sum of $700.00. Plaintiff’s demand for attorney’s fees was denied. The trial court concluded further that the vices in the vehicle were not the result of improper manufacturing, but rather, resulted from “wear, tear, use, and possible misuse by the original owner”. Accordingly, plaintiff’s demand as well as Leglue’s third party demand against General Motors were ordered dismissed.

Defendant Leglue appeals from the judgment of the trial court. Plaintiff answered this appeal requesting that the trial court’s judgment be modified to provide for rescission of the subject sale and that the amount of damages awarded be increased to cover costs of preservation, maintenance, and repair of the subject vehicle. Further, plaintiff, in answer to the appeal, prays that she be awarded penalties and attorney’s fees. Neither party questions the dismissal of their respective demand against General Motors Corporation.

The issue on appeal is whether or not the trial court manifestly erred in concluding that (1) the subject vehicle did not contain such defects as would mandate the rescission of the sale; and, (2) plaintiff did not waive her warranty against redhibitory vices.

The record discloses that on April 5,1979, Sandra A. Jofforion purchased a used 1977 Buick Regal from the defendant, Leglue, for a sales price of $4,528.00. On April 9, 1979, the plaintiff returned to the automobile dealership with numerous complaints concerning the vehicle, the most serious of which was that the engine was “missing”. At that time in an attempt to remedy the vehicle’s engine problems, the defendant replaced a sparkplug. The plaintiff continued to experience problems with the automobile which resulted in her return to the automobile dealership on April 20, 1979, at which time she complained that the smell of burning oil emanated from the vehicle when in operation. Testimony at trial indicated that since the date of sale the automobile has required the following repairs: (1) a rebuilt radiator, (2) a new starter, (3) a rebuilt carburetor, (4) a new exhaust system, and (5) a new battery. Further, plaintiff stated that shortly after purchase, the vehicle required a tune-up and regularly consumes approximately one quart of oil per week. In addition, testimony received at trial indicated that the vehicle’s engine problems may be the result of a defective valve guide, a defective valve guide seal, or a broken ring. Expert testimony indicated that the cost of remedying such engine vices, depending on the vice found, would range from $150.00 to $1000.00. According to the plaintiff, on her last visit to the dealership, defendant’s own mechanics submitted an estimate in excess of $300.00 to cover the cost of needed repairs to the vehicle.

The record reflects considerable dispute regarding the signing by plaintiff of a document which purports to be a waiver of all warranties, both express and implied, applicable to the subject vehicle. Leglue contends that Ms. Jofforion signed the waiver contained in the Sale and Chattel Mortgage contract after a complete and thorough explanation of its provisions. Defense witnesses, George Richards, the salesman involved in the subject transaction, and Mike Monceaux, the business manager of the defendant dealership, both testified that the warranty waiver provisions contained in the sale and chattel mortgage document were fully explained to the plaintiff before she signed the contract. However, plaintiff and plaintiff’s mother unequivocally stated that no explanation of the document was ever provided to them, and further, that Richards was not even present at the time the document in dispute was signed. The record reflects that one of the witnesses to the Sale and Chattel Mortgage Agreement was not present at the time the parties signed the contract, but rather, singed at a later time. Also, Mon-ceaux testified that Richards notarized the document, however, did so, not at the time of its execution, but at some later time. LSA-C.C. Article 2520, the statutory basis for redhibition actions in Louisiana, provides:

“Redhibition is the avoidance of a sale on account of some vice or defect in the thing soid, 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.”

In redhibition actions, the plaintiff must prove that the product purchased contained a hidden defect or vice at the time of the sale which was not apparent by ordinary inspection, and which subsequently renders the thing unfit for the use intended or its use becomes so inconvenient or imperfect that it must be supposed that the purchaser would have never purchased the thing had he known of the vice or defect. See Moreno’s, Inc. v. Lake Charles Catholic High Schools, Inc., 315 So.2d 660 (La.1975).

The trial judge in his written reasons for judgment states that he was unable to conclude from the evidence and testimony received at trial whether “indeed there is a defect with the engine of the car and, if so, whether it was present at the time of sale”. Thus, the lower court held that the plaintiff had failed to sustain her burden of proof. However, the trial court observed that numerous repairs were required, and according to testimony at trial, are still required to put plaintiff’s automobile in reliable operating condition. The lower court noted that all of these repairs were needed within seven months of the purchase of the vehicle indicating that certain parts of the automobile were either severely worn or defective at the time of the sale. Therefore, the trial court concluded that the sales price of the vehicle was excessive in light of the automobile’s various mechanical problems and in consideration of the needed repairs and inconvenience caused to the plaintiff, ordered that the purchase price of the vehicle be reduced by the sum of $700.00.

In addressing defendant’s allegation that plaintiff signed a valid waiver of all warranties against redhibitory defects, the trial judge noted in his written reasons for judgment that in order for a waiver of warranty to be effective, it must satisfy three conditions. These are: (1) the waiver must be written in clear and unambiguous terms, (2) the waiver must be contained in the sale and chattel mortgage document, and (3) the waiver must either be brought to the attention of the buyer or explained to him. Thibodeaux v. Meaux’s Auto Sales, Inc., 364 So.2d 1370 (La.App. 3rd Cir. 1978). The seller has the burden of proving that the applicable warranties were validly waived. After consideration of all the testimony and evidence adduced at trial, the trial court concluded that the third condition had not been met, specifically, that the purported waiver as contained in the Sale and Chattel Mortgage document was never brought to the plaintiff’s attention or explained to her. Therefore, the trial court held that the plaintiff did not waive the warranty against redhibitory vices.

As previously stated, the determinative issues on appeal concern the factual findings of the trial court. The jurisprudence in this area is well settled. The appellate courts of Louisiana have full and complete jurisdiction to review facts. Arceneaux v. Domingue, writ granted, 359 So.2d 1303 (La.1978), 365 So.2d 1330. (La.1978), on remand, 370 So.2d 1262 (La.App. 3rd Cir. 1979). The standard for review of facts was enunciated in Canter v. Koehring Company, 283 So.2d 716 (La.1973) wherein the Louisiana Supreme Court stated:

“.. . the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.”

Mindful of the role of appellate courts in reviewing the factual conclusions of the trial court and after careful consideration of the testimony and evidence adduced at trial, we conclude that the trial judge had a sufficient factual basis for his decision and was not clearly wrong in his conclusions. The trial judge is in the best position to evaluate the credibility and demeanor of the witnesses as well as draw from the testimony those inferences which are most reasonable in light of the circumstances. In addition, we observe that where there exists a substantial conflict in testimony, as in the instant litigation, the reasonable evaluations of credibility and reasonable infer-enees of fact of the trial court should not be disturbed by the appellate court in the absence of manifest error. Harris v. Landry, 345 So.2d 242 (La.App. 3rd Cir. 1977), writ denied, 347 So.2d 262. We discern no manifest error on the part of the trial court in the instant litigation.

Plaintiff answered the instant appeal requesting that she be awarded penalties and attorney’s fees. As the trial judge stated in his written reasons for judgment, attorney’s fees in redhibition actions are awardable against the seller/non-manufacturer only in those instances where the seller is proved to be in bad faith. Price v. Overseas Sports, Inc., 362 So.2d 587 (La.App. 3rd Cir. 1978). The evidence establishes that the defects in plaintiff’s vehicle resulted from mechanically worn parts and that the deféndant failed to discover the worn condition of such parts via the administration of standard maintenance tests pri- or to the sale of the vehicle. There does not appear from the record sufficient evidence to justify the conclusion that the defendant automobile dealership was in bad faith. Therefore, we concur with the decision of the trial court that plaintiff is not entitled to an award of penalties and attorney’s fees.

Defendant contends on appeal that the trial court erred in allegedly considering inadmissible evidence in its determination of the amount by which the purchase price of the vehicle should be reduced. We disagree. The courts of our state have previously- concluded that the amount in which the purchase price of an item may be reduced may be determined by considering the difference between the original price and the price a reasonable buyer and seller would agree on knowing of the vices, or the cost of repairs or replacement. In addition, the court may consider the inconvenience caused to the buyer due to the defects. See Gates v. Dykes, 338 So.2d 1190 (La.App. 2d Cir. 1976); Bendana v. Mossy Motors, Inc., 347 So.2d 946 (La.App. 4th Cir. 1977). The record reflects that the trial court carefully considered the particular circumstances of the instant case and arrived at a reasonable sum by which the purchase price should be reduced. We conclude that such a reduction is reasonable and discern no error on the part of the trial court.

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

AFFIRMED.

      . LSA-C.C. Article 2541 provides:
      “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.”
      LSA-C.C. Article 2543 provides:
      “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.”


author: LABORDE, Judge.

text:
    David Lee MAJORS, Plaintiff-Appellant, v. BLUE CROSS OF LOUISIANA, Defendant-Appellee.
    No. 8211.
    Court of Appeal of Louisiana, Third Circuit.
    May 27, 1981.

      Davis & Simmons, Kenneth N. Simmons, Many, for plaintiff-appellant.
    Brittain & Williams, Joseph Payne Williams, Natchitoches, for defendant-appellee.
    Before CULPEPPER, DOMENGEAUX and LABORDE, JJ.
   LABORDE, Judge.

David Lee Majors, plaintiff, filed suit against his insurance carrier, Blue Cross of Louisiana, to recover certain hospital costs and doctors fees as a result of being hospitalized three times during 1978. The trial court found that Majors’ hospitalizations were medically necessary and awarded judgment in favor of plaintiff in the amount of $2,165.50; however, plaintiffs claim for penalties and attorney’s fees was denied.

Majors contends that the trial judge committed manifest error by not finding the defendant arbitrary and capricious in failing and refusing to pay plaintiff’s claim. Majors seeks penalties and attorney’s fees.

Defendant contends that the trial judge was clearly wrong in finding that plaintiff’s hospitalizations were medically necessary and consequently the decision of the trial court should be reversed.

Majors was hospitalized on three separate occasions during 1978. The first hospitalization in the Fraser Hospital from April 7, 1978, to April 11, 1978, was ordered by Dr. Edward Schlein. The second hospitalization in the Schumpert Medical Center from June 25, 1978, to July 1, 1978, was ordered by Dr. Wallace Brown. The third hospitalization, again in the Schumpert Medical Center, from August 12,1978, to August 25, 1978, was ordered by Dr. Wallace Brown with additional treatment by Dr. Lawrence L’Herrison.

The costs of the three hospitalizations and medical fees totaled $2,165.50, which amount was denied by the defendant on the ground that the expenses incurred were not “medically necessary” and therefore not payable under the following clause contained in defendant’s policy, to-wit:

“Basic and Supplemental Benefits are NOT provided for the following types of hospital admissions or portions of admissions — Not medically necessary — i. e., when in the judgment of the Carrier the medical services did not require the acute hospital bedpatient (overnight) setting, but could have been provided in a physician’s office, the outpatient department of a hospital, or in a lesser facility without adversely affecting the patient’s condition or the quality of medical care rendered.”

The trial judge found as a matter of fact that the hospitalizations of Majors during 1978 were medically necessary and awarded him $2,165.50 — the amounts covered under defendant’s policy for 1978.

Under the standard of review enunciated in Canter v. Koehring Company, 283 So.2d 716 (La.1973), and Arceneaux v. Domingue, 365 So.2d 1330 (La.1978), the factual determinations of the trier of fact should not be disturbed unless clearly wrong. We have carefully reviewed the record in this matter and find no error in the trial judge’s ruling that the hospitalizations were medically necessary.

Whether Majors is entitled to penalties and attorney’s fees was recently answered by our Supreme Court in Lopez v. Blue Cross of Louisiana, 397 So.2d 1343 (La.1981). The Lopez case, with its factual and legal issues strickenly similar to the ones presented in the present appeal, focused upon interpretation of LSA-R.S. 22:657(A). In Lopez, our Supreme Court awarded, as penalties, double the amount of benefits sued for, plus legal interest from judicial demand plus all court costs. In addition, the court awarded plaintiff attorney’s fees. We must do likewise.

For the above and foregoing reasons, the judgment of the District Court is amended and as amended is affirmed. It is hereby. ordered that there be judgment in favor of David Lee Majors and against Blue Cross of Louisiana in the amount of $2,165.50 representing the benefits sued for plus an additional $2,165.50 representing the penalty award. Interest on both sums, as provided by law from judicial demand, is also awarded. Further, Majors is entitled to attorney’s fees in the sum of $3,000.00. Costs on appeal are taxed against defendant, Blue Cross of Louisiana.

AMENDED AND AFFIRMED.


text:
    Bobbie J. BELL, Plaintiff-Appellant, v. GEORGIA CASUALTY AND SURETY COMPANY, Defendant-Appellee.
    No. 8212.
    Court of Appeal of Louisiana, Third Circuit.
    May 27, 1981.
    Writ Granted July 2, 1981.
    Thomas & Dunahoe, G. F. Thomas, Jr., Natchitoches, for plaintiff-appellant.
    Hall, Lestage & Lestage, F. Steve Lan-dreneau, DeRidder, for defendant-appellee.
    Before CULPEPPER, DOMENGEAUX and LABORDE, JJ.
   LABORDE, Judge.

Bobbie J. Bell instituted this suit for workmen’s compensation benefits, plus penalties and attorney’s fees. The defendant is Georgia Casualty and Surety Company (Georgia Casualty), the compensation insurer of plaintiff’s employer. From a judgment sustaining Georgia Casualty’s plea of prematurity and dismissing the suit, Bell appeals. We affirm. We hold that under LSA-R.S. 23:1314, Bell’s suit was premature and the trial court was correct in ordering its dismissal.

For purposes of the plea of prematurity, the facts are that plaintiff was seriously injured on February 13, 1980, while working for Thaxton and Sons Sawmill, Inc. Shortly after the injury, Georgia Casualty commenced paying Bell workmen’s compensation benefits at the rate of $83.33 per week. This rate was established after Zo-nie Harris, a claims representative for Georgia Casualty, conducted an investigation and spoke with Bell and his employer, Harvey Thaxton. Harris then concluded that Bell was employed on a part-time basis working five hours per day, five days per week and earning a maximum of $125 per week. Computing 66%% of Bell’s wages as required by the compensation act, Harris arrived at a compensation rate of $83.33 per week.

On July 8, 1980, Bell’s attorney notified Harris by letter that the compensation rate was erroneously based on an average of twenty-five hours actually worked rather than the appropriate fourty-hour week according to the compensation act’s formula. Demand, on Bell’s behalf, was made for an increase of $50.00 per week plus the deficiency accumulated from the date of the injury.

On August 15, 1980, in a letter to Bell’s counsel, Harris acknowledged receipt of the earlier letter adding that he would be in the area in a week and would at that time stop by the office in order to go over Bell’s file.

In the meantime, Bell’s counsel mailed a suit to the court which was filed on August 19,1980, alleging that Georgia Casualty had refused to pay the correct compensation rate and praying for benefits, penalties and attorney’s fees.

On August 28, 1980, upon the advice of counsel, Georgia Casualty increased the weekly compensation rate to the correct amount of $133.33 and paid $1400.00 to bring the compensation benefits current at the correct rate. This sum was accepted by Bell.

On September 22, 1980, Georgia Casualty filed its plea of prematurity and an answer, alleging that it never refused to pay the correct compensation rate, that it corrected a simple clerical mistake in the calculation of Bell’s weekly compensation benefits and made all payments due Bell by the time of trial, and that it paid all medical and travel expenses to its knowledge incurred by Bell.

The trial court sustained the plea of prematurity and dismissed the lawsuit, without prejudice, requiring Georgia Casualty to pay all costs as it was their mistake which precipitated Bell’s filing the suit.

On appeal, Bell urges that the trial court erred in sustaining the plea of prematurity.

In the interest, of encouraging prompt attention to claims of employees, the compensation act provides that the insurer is immune from suit so long as, among others, it is paying the maximum amount of compensation to which the employee is entitled. Under LSA-R.S. 23:1314, the insurer is permitted to interpose a dilatory exception of prematurity to an employee’s petition which fails to allege that the insurer has not complied with this requirement, or makes such allegations “without reasonable cause or foundation in fact.” Louisiana Civil Law Treatise, Workers’ Compensation, Malone and Johnson, 1980 Edition, § 383, p. 233.

While there is room for considerable disagreement about the type of case in which this provision should apply, it is agreed that the insurer who is performing in good faith and attempting to carry out its responsibilities under the act would not be vexed with unnecessary litigation. Nevertheless, prematurity must be determined according to those circumstances of each case as they exist at the time suit was filed. Jack v. Fidelity and Casualty Co. of New York, 306 So.2d 806 (La.App. 3rd Cir. 1975), appeal after remand 326 So.2d 584, cert. denied 330 So.2d 295 (La.1976); Vidrine v. Argonaut-Southwest Ins. Co., 166 So.2d 287 (La.App. 3rd Cir. 1964).

With these principles in mind, we return to the facts of the instant case. Upon learning of Bell’s injury, Georgia Casualty conducted a prompt investigation followed by prompt, although incorrect, weekly payments. In addition, Georgia Casualty provided prompt payment of Bell’s medical bills which at the time of trial totaled in excess of $23,322.17.

At the trial, Georgia Casualty’s claims adjuster, Harris, explained the reason for the approximate one month delay between notice of the incorrect rate and response to that notice. Harris testified that he is not an attorney and he was without authority to make the change without advice from Georgia Casualty’s general counsel, Mr. Lestage. Lestage, however, was on vacation during that time. When Lestage returned, Harris met with him and upon his advice, the mistake was corrected, the new compensation rate was paid, and the deficiency was made current. Harris also explained that he did not, from reading the letter from Bell’s counsel, get the impression that a suit was imminent. Instead, he felt that they would meet and discuss the matter and properly make the adjustment at the meeting.

The trial court, at the close of the evidence stated:

“THE COURT: As I appreciate the law in this area, the insurer is not penalized for making a mistake in the amount of the payment if it is shown that he acted in good, the insurance company acted in good faith; that the insurance company otherwise cooperated in all other respects. Only those situations where the insurance company has been shown to have been unreasonably obstinate in its refusal to pay any workman’s compensation or to pay the correct amount. I think it has been shown that there was no unreasonable action under the circumstances on the insurer’s part in this case. True, they erroneously paid comp initially but as soon as the error could be rectified, they brought the amount current and have since paid the correct weekly amount plus all medical bills that have been presented to them by the claimant. I do not think that the adjuster acted unreasonably in waiting to talk to Mr. Lestage. He had been dealing with him habitually in the past on these matters and apparently Mr. Lestage was identified by his employer as the lawyer to consult in these matters. Considering, therefore, the fact that the insurance company has, in fact, paid every claim presented to it to date, has rectified its mistake within a reasonable period of time, allowing for consultation with counsel, I find that the Exception of Prematurity should be sustained. However, feel that the company should bear the cost of the dismissal pursuant to the Exception of Prematurity and so order. It was their mistake that brought on the filing of the suit.” (Tr. 20-21)

Furthermore, this court has sustained a plea of prematurity where under similar circumstances to those here presented, the insurer made a clerical error in arriving at the compensation rate, but had in all other respects cooperated fully. Hadwin v. American Mutual Liability Ins. Co., 171 So.2d 776 (La.App. 3rd Cir. 1965).

Upon our review, we feel the record reveals good faith and reasonableness in Georgia Casualty’s dealings with Bell. Upon learning of the error, it corrected the rate and made up the deficiency. In addition, it has throughout manifested a desire to cooperate fully with Bell.

For the reasons assigned, the judgment appealed is affirmed. All costs of this appeal are assessed against the plaintiff.

AFFIRMED.

      . LSA-R.S. 23:1314:
      “Unless ... it is alleged . .. that the employee or the dependents is not being or has not been paid, and that the employer has refused to pay, the maximum percent of wages to which petitioner is entitled ... the presentation or filing of such petition shall be premature and shall be dismissed; when such allegations are contained in such petition and are denied by the employer at the time fixed thereunder by the court, if it be shown that such allegations are without reasonable cause or foundation in fact, such petition shall be dismissed; and the question of whether or not such allegations] of nonpayment ... is justified under the facts shall be determined by the court before proceeding with the hearing of other issues involved.”


author: CUTRER, Judge.

text:
    Lou Anna WATSON, Plaintiff-Appellant, v. WEST BROTHERS OF VILLE PLATTE, INC., Defendant-Appellee.
    No. 8213.
    Court of Appeal of Louisiana, Third Circuit.
    May 27, 1981.
    Preston N. Aucoin, Ville Platte, for plaintiff-appellant.
    Lewis & Lewis, Peter F. Caviness, Opel-ousas, for defendant-appellee.
    Before GUIDRY, FORET and CUTRER, JJ.
   CUTRER, Judge.

Lou Anna Watson brought suit against West Brothers of Ville Platte, Inc. (West Brothers) for damages as a result of injuries she incurred when she slipped and fell in West Brothers’ store.

The State of Louisiana, through the Department of Health and Human Resources (Department), intervened asking that West Brothers reimburse the Department for $682.96, plus legal interest, representing assistance payments and/or medical expenses paid on behalf of the plaintiff as a result of the fall.

The trial court rendered judgment in favor of West Brothers dismissing plaintiff’s suit and the Department’s intervention. Plaintiff appeals. We affirm.

The issue presented is whether the trial court committed manifest error in its dismissal of plaintiff’s suit.

The issue herein is purely factual; that is, credibility of the witnesses. There is a direct conflict between the testimony of witnesses presented by the plaintiff and that presented by West Brothers.

In addition to her testimony, plaintiff called as witnesses: Diana Watson, plaintiff’s daughter; Barbara Watson, plaintiff’s sister and Linda Gallow, an acquaintance.

Plaintiff testified at trial that on December 8, 1978, she entered West Brothers’ store at 9:00 A.M. to do some shopping for some material. At 10:30 A.M. she found the material she wanted to buy. She stated that she took the material to the counter and after placing it thereon, she turned around to get another piece of material when she slipped and fell. She testified that she stepped on a ball of loose thread which caused her to slip and fall. She told the employees of the store simply that she just slipped and fell. She didn’t mention any thread to the employees who asked her what happened.

In her discovery deposition plaintiff contended that it was a combination of the thread and some water on the floor that caused her to fall. At trial she limited the cause to the thread. There were other discrepancies between the deposition testimony of plaintiff and the trial testimony that raises a question as to her credibility.

Diana Watson, plaintiff’s daughter, and Barbara Watson, plaintiff’s sister, were notified of the fall by store employees. These two witnesses both testified that, after arriving at the scene of the accident, they saw the thread on plaintiff’s shoe and a wet spot on her dress. There were discrepancies between the deposition testimony of Diana and the testimony she gave at trial which could lead to a question of credibility of such testimony.

Linda Gallow, an acquaintance of plaintiff, stated that she was in the store, near the plaintiff, when the accident happened. She testified that she saw the thread that was attached to some material. She stated that she saw a small spot of water on the floor where plaintiff fell.

It is interesting to note that neither the plaintiff nor any of the plaintiff’s witnesses mentioned anything about the thread or water to the store employees as being a cause of the fall.

West Brothers’ employees who testified all stated that they never saw any ball of thread or any water that may have contributed to plaintiff’s fall. Mrs. Elsie Bertrand, who was in the immediate vicinity of the plaintiff at the time of the fall, said she saw no water on the floor or on the plaintiff’s clothes immediately after the fall. She also testified that she looked down at the plaintiff’s shoe and saw no thread. We must note that this witness was not employed by West Brothers at the time of trial but was working at a pharmacy.

Mrs. Aubry Miller, another employee, was across the counter from plaintiff when she fell. She testified that there was no water on the floor or on the plaintiff’s clothes, and that she did not see any thread or other debris on the floor and found none later. Mrs. Miller was not working for West Brothers at the time of trial.

Wilfred Ardoin, the janitor for West Brothers, was one of the employees who helped pick the plaintiff up and put her in a chair. He saw no thread on the plaintiff’s shoe and no water on the floor nor wet spot on her clothing.

We note that two of West Brothers’ witnesses, Elsie Bertrand and Mrs. Miller, were no longer employed at West Brothers at the time of trial. Since they were disinterested witnesses, the trial court could have viewed this as adding to their credibility.

The manager of West Brothers, Lee Ray Johnson, testified that all the employees have the duty to see that all aisles are kept neat and clean. A full time janitor is on duty to inspect and to clear the aisles. The janitor has the duty of continuously inspecting and cleaning the aisles during working hours.

Regarding the liability of a store owner to his customers, our Supreme Court, in Johnson v. Ins. Co. of North America., 360 So.2d 818, 820 (La.1978), stated:

“Our opinions in Kavlich [v. Kramer. 315 So.2d 282 (La.1975)] and Gonzales [v. Winn-Dixie Louisiana Inc., 326 So.2d 486 (La.1976)] shift the burden of proof to a store operator after a plaintiff has shown that a premise hazard caused his injury. Once the premise hazard and the injury it caused are proved by a preponderance of the evidence, the burden of proof shifts to the store owner to show that he was not negligent. But that shifting does not occur until the plaintiff preponderantly proves a premise hazard.”

A premise hazard is a condition of the premises or of the store operation that results in an unreasonable risk of harm to customers under the circumstances. Johnson v. Ins. Co. of North America, supra.

In slip and fall cases the plaintiff can usually establish a premise hazard by merely establishing the existence of a foreign material on the floor. Bell v. Bestyet Discount Foods No. 2, 372 So.2d 781 (La.App. 2nd Cir. 1979).

The evidence, as to the existence of a hazard, is in conflict. No written reasons for the judgment were given by the trial court. We have reviewed the record in its entirety to determine if the result reached by the trial court was manifestly erroneous. It is apparent to us that the trial court found that the plaintiff failed to prove existence of any foreign substance creating a hazardous condition for walking. A court of appeal should not disturb the findings of the trial court when there is a conflict in the testimony unless it is clear they are manifestly erroneous. Canter v. Koehring Company, 283 So.2d 716 (La.1973). Manifestly erroneous means clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Our review of the record reveals that a factual determination that the plaintiff’s fall was not caused by any debris or water on the floor is not clearly wrong.

.For the above reasons the judgment of the trial court is affirmed. Costs are assessed to plaintiff-appellant.

AFFIRMED.


text:
    Melvin HENDERSON, Plaintiff and Appellant, v. Dewey Eugene WILLIAMS and S & H Insurance Company, Defendants and Appellees.
    No. 8214.
    Court of Appeal of Louisiana, Third Circuit.
    May 27, 1981.
    Writ Denied July 2, 1981.
    Broussard, Bolton & Halcomb, Roy S. Halcomb, Jr., Alexandria, for plaintiff and appellant.
    Gold, Little, Simon, Weems & Bruser, John F. Simon, Alexandria, for defendants and appellees.
    Before CULPEPPER,' DOMENGEAUX and LABORDE, JJ.
   CULPEPPER, Judge.

Plaintiff, Melvin Henderson, brings this action to recover property damages to his 1977 Chevrolet pickup truck. At the time of the accident, the truck was being driven by Dewey Williams, with plaintiff’s permission. It is alleged that while Williams was driving north on Louisiana Highway 71 in Alexandria, he lost control of the truck, crossed the center line and struck an oncoming vehicle in the southbound lane.

Plaintiff filed the present suit against the driver Williams and S & H Insurance Company, the liability insurer of plaintiff’s truck. S & H moved for summary judgment based on an exclusionary provision of the policy which, it contends, denies coverage under the facts involved. The trial court sustained S & H’s motion. Plaintiff appeals. We affirm.

The decisive issue is whether plaintiff is entitled to recover property damages to his truck under the S & H policy, which provides liability coverage but not collision coverage.

The exclusion on which S & H relies reads as follows:

“This policy does not apply:
* s|c s): sf: s(c
“(f) Under coverage B, to injury to or destruction of property owned or transported by the insured, or property rented to or in charge of the insured other than a residence or private garage injured or destroyed by a private passenger automobile covered by this policy;”

Based on this provision, S & H argues that the policy specifically does not cover injury to any property, including any vehicle, owned, transported, rented to or in charge of the insured, except a residence or garage injured by a private automobile covered by the policy. S & H contends that plaintiff’s damage would have been covered by collision insurance, but that plaintiff chose not to purchase and pay for such coverage.

In response to this contention, plaintiff asserts that the abovementioned exclusion is ambiguous in that it fails to specifically exclude coverage for property damage to the insured’s vehicle, but refers only to the general term “property”. This ambiguity, according to plaintiff, should be resolved in favor of the policyholder and against the insurer.

Both parties cite Middlesex Mutual Fire Insurance Company v. Ballard, 148 So.2d 854 (La.App. 1st Cir. 1963) and Sonnier Oldsmobile v. Southeastern Fidelity, 377 So.2d 572 (La.App. 3rd Cir. 1979), which involved interpretation of similar exclusionary clauses. In Middlesex, supra, the plaintiff argued, as in the present case, that the word “property” in the exclusionary clause referred to objects other than the insured’s automobile. The court, in rejecting this argument stated:

“We are of the opinion that this exclusion is placed in the policy under the liability coverage specifically to prevent and exclude any coverage where there is injury to or destruction of any property owned or transported by the insured or any property rented to or in charge of the insured other than a residence or private garage. This exclusion refers to all property “such as an automobile owned by the insured or an automobile transported by the insured or an automobile rented to the insured or an automobile in charge of the insured. The word property we believe is intended to be all inclusive other than to a residence or private garage as specifically stated in the exclusion. If an insured desires coverage on his own automobile or such other property as may be transported, rented, or in his charge at the time of damage thereto, as a result of a collision he must pay for collision insurance.” (emphasis supplied)

Likewise in Sonnier, supra, this Court held there could be no coverage under a similar policy where the property damaged was an automobile “in charge of the insured.”

We think the rationale in these cases is sound. To adopt the interpretation put forth by plaintiff would be in effect to give collision coverage where only liability coverage was intended.

Plaintiff seeks to distinguish these two cases from the present one by noting that the exclusion in the S & H policy contains the additional words “injured or destroyed by a private passenger automobile covered by this policy.” Plaintiff argues that, due to this additional language, the exclusion can be reasonably interpreted to mean that payment for property owned, transported, etc. by the insured is excluded only if such property was injured or destroyed by a private passenger automobile covered by the policy. This argument has no merit. We think this final clause modifies only the words “residence or private garage” and has no bearing on the remainder of the provision which clearly excludes coverage for property damage to plaintiff’s vehicle.

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

AFFIRMED.


text:
    Mrs. Marie Voorhies LEVY and Mrs. Florence Billeaud Voorhies, Plaintiffs-Appellants, v. Manning F. BILLEAUD, as Liquidator for Comeaux Planting Co. and Broussard Plantation, Inc., Defendants-Appellees.
    No. 8226.
    Court of Appeal of Louisiana, Third Circuit.
    May 27, 1981.

      McCollister, McCleary, Fazio, Mixon, Hol-liday & Hicks, Rick J. Norman, Baton Rouge, for plaintiffs-appellants.
    David S. Foster, III, Lafayette, Sklar, Nachman, Bowsher, Schmidt & Lasavio, Robert T. Bowsher, Baton Rouge, for defendants-appellees.
    Before SWIFT, STOKER and DOUCET, JJ.
   DOUCET, Judge.

Plaintiffs, Mrs. Marie Voorhies Levy and Mrs. Florence Billeaud Voorhies, brought this suit against Manning F. Billeaud, liquidator of two domestic corporations, seeking a writ of mandamus compelling Billeaud to distribute the corporate assets to the shareholders. The trial court sustained defendant’s exception of unauthorized use of summary proceedings, dismissing plaintiffs’ suit. From that judgment, plaintiffs appeal. We affirm.

The two issues are presented for our resolution: (1) Should a writ of mandamus be issued under the particular circumstances of this case? (2) What is the effect of defendant’s failure to file a written answer to the petition for writ of mandamus?

The first issue was correctly resolved by the trial judge. We adopt his excellent written reasons as follows:

“Plaintiffs in this case are two of the stockholders in COMEAUX PLANTING COMPANY, INC. and BROUSSARD PLANTATION, INC., which corporations have been in voluntary dissolution. MANNING F. BILLEAUD was liquidator for both corporations. For tax and other reasons inuring to the benefit of the shareholders, the shareholders approved by 95% at a special meeting called for the purpose, a proposal whereby the two before mentioned corporations would each join with BAYOU TORTUE LIVESTOCK, INC., and become two partnerships in commendam.
The plaintiffs in this case, the only two dissenting shareholders to the adopted resolution, have brought a mandamus action, alleging that it is the legal duty of the liquidator to distribute the corporate assets to the shareholders and that if the proposed plan is not halted, the liquidator will be breaching his fiduciary duty to the shareholders or and exceeding his authority as the above mentioned actions are not listed in the enumerated powers given a liquidator in LSA R.S. 12:145. The defendants filed an exception of unauthorized use of summary proceedings.
The Code of Civil Procedure sets forth the following rules governing mandamus:
Article 3862
‘A writ of mandamus may be issued in all cases where the law provides no relief by ordinary means or where the delay involved in obtaining ordinary relief may cause injustice; . . . ’
Article 3863
‘A writ of mandamus may be directed to a public officer to compel the performance of a ministerial duty required by law, ... ’
Article 3864
‘A writ of mandamus may be directed to a corporation or an officer thereof to compel:
1) The holding of an election or the performance of other duties required by the corporate charter or by-laws or prescribed by law; or
2) The recognition of the rights of its members or shareholders.’
(Emphasis added).
The Court finds that in this case the law provides relief by ordinary means, which remedies are available to plaintiffs and which remedies have not been exercised (see for example La.R.S. 12:131(F), C.C.P. Art. 3601, et seq.), it not appearing that proceeding by ordinary means would result in delay which would cause injustice.
Further, mandamus should not be issued in doubtful cases; it is an extraordinary remedy and should be used sparingly. C.C.P. 3862, Craig v. International Tri-D Corp., 338 So.2d 952 (La.App., 4th Cir. 1976); Board of Commissioners of Lafourche Basin Levee District v. Board of Commissioners of Atchafalaya Basin Levee District, 340 So.2d 600 (La.App. 1st Cir., 1976); Melancon v. Police Jury of Lafayette, 301 So.2d 715 (La.App., 3rd Cir. 1974); Lyons v. Bossier Parish Police Jury, 262 So.2d 838 (La.App., 2nd Cir., 1972).
The situation here involved is not such a ministerial duty as would be a fit subject for a mandamus, such as, the shareholders right to examine the books and records of the corporation, State ex rel. Bourdette v. New Orleans Gaslight Company, 49 La.Ann. 1556, 22 So. 815 (S.Ct. 1897); or the shareholders right to have stock issued to him for which he has paid, Volker v. Crescent City Wholesale Florist, Inc., 17 So.2d 372 (La.App.Orleans, 1944) or the shareholders right to statutorily require financial information, Burguieres v. J. M. Burguieres Company, Ltd., 312 So.2d 179 (La.App. 4th Cir., 1975), or the shareholders right to receive a copy of an annual report required by State law, Tichenor v. Dr. G. H. Tichenor Company, Ltd., 161 So. 198 (La.App.Orleans 1935). It is rather a situation in which the rights upon which the action is predicated are not clear and specifically fixed, but greatly questioned and in the view most favorable to petitioners, in serious and bona fide dispute. In such situations mandamus is not the appropriate remedy forum. In Craig v. International Tri-D Corporation, 338 So.2d 952 (La.App. 4th Cir. 1976), the case closest in point to that involved in the present situation, the Court observed at page 954, the following:
Another object of appellant’s application for writ of mandamus is an order prohibiting the sale of corporate realty. Because this relief is available via injunction (C.C.P. Art. 3601, et seq.), mandamus does not lie (C.C.P. Art. 3862). Plaintiffs are attempting to use mandamus to bypass the furnishing of security required in connection with the issuance of a temporary restraining order or a preliminary injunction (C.C.P. Art. 3610), in the event they provoke a wrongful restraint which ultimately results in damages.
See also Pollock v. Pollock Engineering Co., Inc., 365 So.2d 1186 (La.App. 3rd Cir., 1978) and State ex Rel. Boykin v. Hope Producing Company, 167 So. 506 (La.App. 2nd Cir. 1936).
For these reasons, the defendants’ exception of improper use of summary proceedings is granted, reserving to the plaintiffs their right to bring such other actions as are provided by law in and under the appropriate proceedings therefor.”

For those reasons, we conclude that mandamus is not available to plaintiffs in this case. Plaintiffs argue, however, that the writ must nevertheless be issued because defendant has failed to file a written answer, as required by LSA-C.C.P. Art. 3783. We find no merit in that argument.

An objection to the unauthorized use of summary proceedings must be raised through a dilatory exception prior to answer or judgment by default. LSA-C.C.P. Arts. 926 and 928. If the exception is not filed prior to the answer, the objection urged by it is waived. Bordelon v. Safeway Insurance Company, 380 So.2d 1379 (La.App. 3rd Cir. 1980). Defendant was therefore compelled to wait until his exception had been disposed of before answering. After the trial court sustained the exception and dismissed plaintiffs’ suit, there was no further need for an answer. In fact, nothing remained to be answered.

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed against the plaintiffs.

AFFIRMED.


text:
    Clement HEBERT, Plaintiff-Appellant, v. Larry BRASSEAUX, Defendant-Appellee.
    No. 8228.
    Court of Appeal of Louisiana, Third Circuit.
    May 27, 1981.
    Thomas, Sellers & Bundick, Roger C. Sellers, Abbeville, for plaintiff-appellant.
    Darrel Desormeaux, Lafayette, for defendant-appellee.
    Before SWIFT, STOKER and DOUCET, JJ.
   DOUCET, Judge.

This is a suit for cancellation of a lease. The plaintiff-lessor, Clement Hebert, appeals a judgment of the district court in favor of the defendant-lessee, Larry Bras-seaux, denying his claim for cancellation. We affirm.

The record shows that on August 16, 1975, plaintiff leased a night club building in rural Vermilion Parish to defendant for a five year term with an option to renew for two additional five year periods. The written agreement provided for rental payments of $250.00 per month, payable at plaintiff’s residence on or before the first day of the month. Defendant assumed the obligations of maintaining the building and complying with the rules and regulations of the Louisiana Fire Prevention Bureau.

Plaintiff brought this suit on September 11, 1979, alleging that he was entitled to have the lease cancelled because of defendant’s breaches of his obligations to pay the rent when due, to maintain the building, and to comply with the rules and regulations of the Louisiana Fire Prevention Bureau. Following a trial on the merits, the trial judge found that plaintiff had failed to show a breach of the conditions of the lease sufficient to justify cancellation. Accordingly, he rendered judgment in defendant’s favor, reserving plaintiff’s right to reinsti-tute the suit if defendant failed to fulfill his obligations.

The only issue on appeal is whether the trial judge abused his discretion in refusing to dissolve the lease.

We note at the outset that the right to dissolve a lease is subject to judicial control according to the circumstances of each case. Housing Authority of the City of Lake Charles v. Minor, 355 So.2d 271 (La.App. 3rd Cir. 1977), writ denied, 355 So.2d 1323 (La.1978). As this court stated in the cited case, “... our courts, on the basis of equity, are vested with discretion under some circumstances to decline to grant a lessor cancellation of a lease although such right appears to be otherwise available to him.” See also,. Vidrine v. Morein, 360 So.2d 659 (La.App. 3rd Cir. 1978); Pool v. Winwell, Inc., 381 So.2d 926 (La.App. 3rd Cir. 1980). After carefully considering this case in light of those principles; we conclude that the trial judge did not err in refusing to cancel the lease.

The evidence shows that for nearly four years following the execution of the lease, plaintiff periodically accepted late rent payments from defendant. In May of 1979, plaintiff’s attorney sent a letter to defendant’s attorney, demanding that all future rent payments be made promptly. Thereafter, plaintiff hand delivered approximately half of the rent payments and sent the others by certified mail.

One payment, which was due on Sunday, June 1,1980, was not delivered until June 2, 1980. Defendant testified that plaintiff was not at home when he called at noon on June 1, and knowing that plaintiff and his wife usually went to the race track in New Orleans on weekends, he assumed that they would not be home until late that evening. In addition, several of the payments that were mailed were not received by plaintiff by the first of the month, because he was not at home to receive the certified mail, and he had instructed his daughter not to accept certified mail from defendant. The trial judge concluded that it was obvious that plaintiff was refusing the certified mail in order to have a reason to cancel the lease.

The evidence concerning plaintiff’s maintenance of the building was conflicting. Plaintiff testified that the building was in perfect condition when defendant took possession of it, and that it had become badly deteriorated because of lack of maintenance. Defendant, on the other hand, testified that he had had to make numerous repairs before he began to use the building, and that he had adequately maintained it since then. Plaintiff introduced pictures into evidence showing that at times the building was not in perfect condition. It was established that at the time that the pictures were taken, defendant had subleased the building to other people, who had not properly cared for it. However, when the trial judge made an on-site inspection of the leased premises during the trial, he found that the place had been considerably improved since the pictures were taken. He concluded that the building had not deteriorated to such an extent as to warrant cancellation of the lease.

The trial judge also rejected plaintiff’s argument that he is entitled to cancellation of the lease because of defendant’s alleged failure to comply with the rules and regulations of the Louisiana Fire Prevention Bureau. We find that the record fully supports that decision. It was established at the trial that defendant has never been cited for any violations of any fire safety laws, despite a number of inspections by employees of the Louisiana Office of Fire Protection. Defendant testified that the building is equipped with three fire extinguishers and a public address system, which can be used to alert its occupants in the event of a fire. Plaintiff questions the propriety and effectiveness of those measures. However, he has not established that defendant has failed to comply with any applicable rules and regulations.

For the foregoing reasons, we conclude that the trial judge’s refusal to dissolve the lease was a proper exercise of his discretion. We therefore affirm the judgment appealed by plaintiff. All costs of this appeal are to be paid by plaintiff.

AFFIRMED.