text:
    Daryl C. Sins, Wife of Alvin R. CHILDRESS, III v. Obie JOHNSON, Jr. and Shirley Mae Johnson.
    No. 13402.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 1980.
    Rehearing Denied Sept. 4, 1980.

      Alvin R. Childress, III, New Orleans, for plaintiff.
    Fannie E. Burch, Amite, for defendants.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   COVINGTON, Judge.

This is an appeal from a judgment of the District Court dismissing the demands of the plaintiff, Daryl C. Sins, wife of Alvin R. Childress, III, against the defendants, Obie Johnson, Jr. and Shirley Mae Johnson, and decreeing the tax sale to the plaintiff for the unpaid taxes for the year 1973, recorded in COB 396, page 167, to be an absolute nullity for lack of proper notice. We affirm.

The trial court found as facts that the defendants were in actual corporeal possession of the property sold at the tax sale, having actually resided on the one-half acre tract of land from their acquisition of it continuously up to the date of the trial, and that the defendants, the record owners, did not receive a notice of the tax delinquency for 1973, which letter of notice of the tax delinquency was addressed merely “Johnson, Obie and Shirley, Kentwood, LA., 70444” having been returned to the Sheriff and Tax Collector marked “unclaimed.” The Sheriff and Tax Collector made no further efforts to notify the defendants of the tax delinquency. We have reviewed the record and it fully substantiates these factual findings.

The suit arose as an action to confirm the tax title to the subject property, a lot measuring 117 feet by 185 feet in Section 5, Township 2 South, Range 7 East, in Tangi-pahoa Parish, Louisiana, which the plaintiff acquired by tax deed dated July 8, 1974 for 1973 taxes in the amount of $15.24. The action was brought on July 10, 1979, more than five years after the tax sale.

The three year redemption period having run, the tax debtor’s only recourse in the instant case is to attack the validity of the tax sale. This attack must ordinarily be brought within the five year peremptive period, unless this period has been interrupted by the physical or corporeal possession of the property by the tax debtor. Securities Mortgage Company, Inc. v. Triplett, 374 So.2d 1226 (La.1979).

Specifically, in Cook v. Morgan, 142 So. 279, 281 (La.App. 2 Cir. 1932), it was held that:

“If the tax debtor continues in the actual possession of the property sold at tax sale, the possession is a continuous assertion of his title and protest against the sale; the pre-emption does not accrue and the tax title cannot be perfected.”

'Corporeal possession by the tax debtor of such a nature as to form a constant protest to the tax sale suspends (interrupts) the five year peremptive period. LSA-R.S. 47:2226; Collins v. Quinn, 366 So.2d 209 (La.App. 2 Cir. 1978).

Thus, in the instant case both the three year redemptive period and the five year peremptive period have run unless the per-emptive period has been interrupted. According to Securities Mortgage Company, supra, the three year redemptive period is not interrupted by corporeal possession of the tax debtor, but the five year period is interrupted by such possession.

Hence, the threshold question is whether the tax debtors in this case were in corporeal possession of the property so as to suspend the running of the five-year per-emptive period. The record establishes that they were. The testimony of Mrs. Johnson shows conclusively that they have resided on the subject property since its acquisition in 1970. This is corroborated by Mrs. Johnson’s sister, and is not seriously questioned by the plaintiff.

The giving of notice of delinquency required by the Constitution of 1974, Article 7, § 25 and LSA-R.S. 47:2180 (and its statutory predecessors) is mandatory. See Garry v. Zor, Inc., 181 So.2d 828 (La.App. 4 Cir. 1966).

Such notice must be given to a tax debtor before his property may be sold for nonpayment of taxes. Where mailing of such notice is required, and a mailed notice is returned to the tax collector undelivered or unclaimed, the tax collector is required to take additional reasonable steps to notify the tax debtor, and the failure of the tax collector to perform this obligation renders the tax sale null and void. Sheridan v. Commercial Guaranty and Brokerage Corporation, 292 So.2d 317 (La.App. 1 Cir. 1974). Also, when the tax collector, after the tax delinquency notice is sent to the wrong address and returned unclaimed, makes no further effort to ascertain the tax debtor’s correct address and deliver notice, the tax sale is void and the purchaser’s tax title is invalid. Standard Homes, Inc. v. Prestridge, 193 So.2d 100 (La.App. 2 Cir. 1966); see also Succession of Welsch v. Carmadelle, 264 So.2d 341 (La.App. 4 Cir. 1972), writ denied, 262 La. 1181, 266 So.2d 452 (1972).

A review of the record, the briefs of counsel, and of the jurisprudence convinces us that the trial judge correctly decided the facts and correctly applied the applicable law herein, and we adopt and incorporate herein, as our own, his “Written Reasons for Judgment” (see attached Appendix) affecting the following described immovable property:

“Beginning at the Southwest Corner of the Northwest Quarter of the Northwest Quarter (SW Corner of NW Vi of NW Vi) of Section 5, Township 2 South, Range 7 East, Tangipahoa Parish, State of Louisiana, run thence East along the South boundary line for a distance of 118 feet to a point of beginning, thence North for a distance of 185 feet, thence East for a distance of 117 feet, thence South for a distance of 185 feet, thence West along the South boundary line for a distance of 117 feet to the point of beginning, containing one-half (Vfe) acre, more or less, together with all of the improvements thereon, and all rights, ways, privileges, servitudes, appurtenances and advantages thereunto belonging or in anywise appertaining; and being the same property acquired by Obie Johnson and Shirley Mae Johnson by ‘Quitclaim deed, Vendor’s Lien and Special Mortgage’ dated January 21,1970 from Mid-State Homes, Inc. recorded in Book 337, Folio 17, Entry No. 174727 of the Conveyance Records of Tangipahoa Parish, Louisiana.”.
We therefore affirm at appellant’s costs.
AFFIRMED.
APPENDIX
NUMBER: 56,784 21ST JUDICIAL DISTRICT COURT
DARYL C. SINS, WIFE OF:
ALVIN R. CHILDRESS, III PARISH OF TANGIPAHOA
VERSUS
STATE OF LOUISIANA
OBIE JOHNSON, JR. AND SHIRLEY MAE JOHNSON DIVISION “D”

REASONS FOR JUDGMENT

LEON FORD, III, District Judge.

Plaintiff purchased the subject property at a tax sale for the unpaid State and Parish taxes for 1973. The unpaid taxes actually consisted of only the garbage tax in the amount of $6.74. The defendants had previously signed for Homestead Exemption and the property was homestead exempt as they were residing in the residence thereon.

This Court finds that the defendants never received any notice of the unpaid taxes due for the year of 1973. Defendant testified that they did not receive the original tax notice before the first of the year, and the certified letter mailed out by the Sheriff and Tax Collector was addressed merely “Johnson, Obie and Shirley, Kentwood, LA 70444”. The letter was returned by the post office marked “unclaimed” and was admitted in evidence as plaintiff’s exhibit # 6. There is no evidence that the post office left, or the defendant received, any form of notification that a certified letter had been sent to them. At the time in question, they were residing on the property and receiving their mail in care of Matthew Robertson, Sr. at Rt. 1 Box 431, Kent-wood, LA 70444. The rural mail carrier was unaware that they were receiving their mail through that box at that time. However, a visit to the property by the tax collector would readily have shown the occupancy of the property by the defendants.

It is the opinion of this Court that this matter is readily distinguishable from the recent case of Security Mortgage, Inc. v. Triplett et ux., # 64,076 as cited by the Plaintiff. In that case the post office left several, notices of the certified letter at the defendant’s residence, and the only reason that the tax debtor did not receive the certified letter was because he did not go to the post office to pick it up as he had been directed to. In that case the Supreme Court held that there was sufficient notice for tax sale purposes.

For the reasons set forth herein judgment will be rendered in favor of the defendants rejecting the demands of the plaintiff at plaintiff’s cost. Judgment in accordance with these reasons will be signed when presented to the Court by the attorney for the defendants.

Amite, Louisiana this 26th day of October, 1979.


source: Caselaw Access Project

author: COLE, Judge.

license: Public Domain

text:
    Shellie J. SEALS v. Eugene MORRIS et al. Sylvester L. HARRY v. Eugene MORRIS et al.
    Nos. 13405, 13406.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 1980.
    Rehearing Denied Sept. 4, 1980.

      Jim W. Richardson, Jr., Bogalusa, for plaintiff in No. 13406.
    John W. Anthony of Talley, Anthony, Hughes & Knight, Bogalusa, for Eugene Morris and Southeast Fidelity Insurance.
    John J. Hainkel, Jr. of Porteous, Toleda-no, Hainkel & Johnson, New Orleans, for United States Fidelity & Guaranty Co.
    Herbert R. Alexander, Bogalusa, for plaintiff in No. 13405.
    John N. Gallaspy of Gallaspy & Paduda, Bogalusa, for Shellie J. Seals and Southern Farm Bureau Casualty Insurance Co.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   COLE, Judge.

These are consolidated personal injury suits involving an intersectional truck collision.

The unusual facts surrounding this incident are not in dispute. On the morning of April 24, 1976, the defendant, Eugene Morris, had been fishing. At approximately 7:00 A.M. he began traveling home on a dirt road within Washington Parish, Louisiana. As he approached the intersection of that road with Louisiana Highway 1071, he observed a green snake crawling on his shoulder. He panicked, lost control of his truck and entered into the intersection without stopping at the stop sign which faced him. Upon doing so, he collided with another truck operated by Shellie J. Seals. Sylvester L. Harry was a passenger in the Seals’ vehicle.

These suits were brought by Seals and Harry against Morris and his insurers for the damages sustained by them. Harry joined his host driver, Seals, as an additional party defendant. After trial on the merits, the district court found the accident was caused solely by the negligence of Morris and judgment was rendered in favor of both plaintiffs. We reverse.

The defendants contend Morris’ collision with the Seals’ truck was an “unavoidable or inevitable accident.” The defendants argue, and the record supports their position, that while returning from the fishing trip, Morris suddenly and quite unexpectedly observed the green snake crawling upon him. He first became aware of the reptile on his shoulder as he drew near the intersection of the dirt road with Louisiana Highway 1071. The evidence establishes he was proceeding in his truck at a slow rate of speed and was approaching the intersection with his vehicle under control when the snake, in his own words, “frightened” and “scared” him to such an extent he lost control of his vehicle. Unfortunately, the incident occurred too close to the intersection for him to regain his composure or control of his truck before he had run the stop sign and collided with the Seals’ truck, causing the damages complained of.

Generally, the doctrine of “unavoidable or inevitable accident” relieves a person of liability.

This doctrine is stated in the following language in 7 Am.Jur.2d § 350, p. 896:

“The operator of a motor vehicle is not liable as an insurer, or for unavoidable or inevitable accidents, and the mere fact that an accident occurs which results in personal injury, death, or property damages does not warrant a recovery against the owner or operator of the vehicle unless it can be shown that the injury or damage was caused by the negligence of the operator. An unavoidable or inevitable accident is such an occurrence or happening as, under all attendant circumstances and conditions, could not have been foreseen or anticipated in the exercise of ordinary care as the proximate cause of injury by any of the parties concerned. In other words, where there is no evidence that the operator of the motor vehicle was negligent in any way, or that he could have anticipated the resulting accident, the accident is deemed to have been an unavoidable or inevitable one for which no recovery may be had.

The doctrine of “unavoidable or inevitable accident” is also stated in 60A C.J.S. § 256, p. 64:

“Generally, unavoidable accident exonerates defendant motorist from liability on the ground of negligence.
!jC S»S S(S * * *
“With respect to automobile accidents, an unavoidable accident is one which is not occasioned in any degree, either directly or remotely, by the want of such care or prudence as the law holds every man bound to exercise, that is, an accident in which there is no negligence by either party; and the term ‘unavoidable accident’ is synonymous with ‘mere accident’ or ‘pure accident’ which imply that the accident was caused by some unforeseen and unavoidable event over which neither party had control, including an accident caused by a ‘vis major’ which is a greater or superior force, or an irresista-ble force. . . . ”

It is recognized in this State that a person involved in an “unavoidable or inevitable accident” is not liable to the injured person for damages resulting from such an accident. Sharp v. Kahn, 143 So. 514 (La.App. 1st Cir. 1932). However, the person who seeks protection of the doctrine must show he was not at fault in causing the accident. Sharp v. Kahn, supra.

In Sharp v. Kahn, the plaintiff was injured by being thrown from the horse he was riding when the minor daughter of the defendant ran her automobile into the horse. The evidence showed the plaintiff was in no way at fault, and was in his proper lane of the roadway near the edge of the pavement. The driver of the automobile was traveling 35-40 m. p. h. on a straight road with a clear view of the plaintiff’s horse, yet she failed to see it until she was within 20 feet. The driver claimed to have been stung by a bee which caused her to lose control of her automobile. The Court considered the driver was at fault in not maintaining a proper lookout, so the protection of the doctrine of “unavoidable or inevitable accident” was not available to her under the circumstances. The Court concluded it was not the bee that caused the accident, but the driver’s inattentiveness to the road situation. Hence, the particular incident could not be classified as an inevitable accident.

In reaching this conclusion, the Court said:

“Under the facts and circumstances presented in this case, therefore, Miss Kahn cannot be said to have been without fault, and her defense that she was stung by a bee and lost control of her car, even though full effect be given to her account thereof, has to be considered in connection with her negligence.
“The rule of law which relieves a person of liability for the result of an inevitable accident is well recognized, but there is a qualification to that rule, equally well recognized, which requires the one seeking to avail himself of its protection to show that he himself was in no way to blame for the happening. From Blash-field, vol. 5, page 260, we quote the following: ‘An accident is inevitable if the person through whom it occurs neither has nor is legally bound to have sufficient power to avoid it or prevent its injuring another. But in order to prove that an accident was inevitable it is not always enough to show that, under the circumstances existing at the time, it could not have been then avoided. It must also be the fact that the defendant was not guilty of any negligence which brought about any of those circumstances.’
“In Ruling Case Law, vol. 20, page 17, in a paragraph dealing with the subject here under consideration, we read: ‘It has long been recognized that no action will lie for injuries attributable to what is termed inevitable or unavoidable accident. In other words, if no fault or negligence is chargeable to either of the parties to the occurrence upon which the action is founded the loss and injury will be allowed to remain where it has fallen. * * * But it is insisted that a person is in no degree absolved from liability by reason of the fact that the injury was produced by accident in combination with his own negligence. * * * ’
“With this positive statement of the modification of the rule before us, and having found that Miss Kahn was negligent in the operation of the automobile she was driving, we are bound to hold that her mother cannot evade liability by invoking the doctrine of ‘inevitable accident.’ ”

In Lussan v. Grain Dealers Mutual Insurance Company, 280 F.2d 491 (5th Cir. 1960), the Court permitted the protection of the doctrine when a wasp distracted the driver and caused the accident. The Court observed:

“In this simple case in the search for the negative limits of the inferences open to the so-called reasonable man, we deal with a situation known and experienced by all-the involuntary reflex responses by which nature protects life from harm or apprehended harm. In a philosophical way it may be that nature has here elevated the instinct of self -preservation to a plane above the duty to refrain from harming others. It is here where man through law and ordered society steps in. But in stepping in, man, through law, has erected as the standard of performance, not what had to be done to avoid damage, but that which prudent human beings would have done or not done.
“At times the judgment of the common man-voiced through the jury or other trier of fact-on what the prudent man should have done will be to deny to the individual concerned a legal justification for his perfectly human instinctive response. At other times what is actually usual may be equated with that which is legally prudent.
“That is what occurred here.. A wasp became the object of apprehended harm. Protective responses were instinctive and natural and swift. True, this diverted driver and his attention from other harm and other duties. But the jury in these circumstances under unchallenged instruction on legal standards concluded that this was normal and prudent human conduct. What better way is there to judge of this?”

This case clearly presents circumstances which require the application of the “unavoidable or inevitable accident” doctrine. Here, Morris had been fishing in a wooded area and a snake entered his vehicle through an open window. Prior to the accident, it appears he was driving at a very slow rate of speed and was preparing to stop at the intersection in obedience to the stop sign. As he did so, he was suddenly confronted with a situation which would cause any reasonable person to be, at least momentarily, terrified. Unlike the facts present in Sharp, supra, there is no evidence of any negligent conduct on the part of Morris. It can not be said Morris owed a legal duty to keep his truck windows closed, imposed to protect against the harm a snake might create by crawling into the vehicle. A snake crawling from its natural environment into the truck was an unforeseeable occurrence not within the contemplation of a reasonable person. See Riche v. Thompson, 6 So.2d 566 (La.App. 2d Cir. 1941).

The principles of law stated above are closely related to those applied where a sudden emergency exists. See Vaughn v. Hebert, 333 So.2d 304 (La.App. 1st Cir. 1976).

In Vaughn, supra, we said:

“We conclude that Randy Hebert was faced with a sudden emergency created entirely by the gross negligence of the approaching motorist. Under these circumstances, it is the settled jurisprudence of this state that a person is not obligated to exercise the same degree of care or judgment as is required under ordinary circumstances. In the emergency thus faced by Hebert his actions were reasonable and justified. A mistake of judgment or failure to adopt the best or wisest course for avoiding injury does not necessarily result in a finding of negligence. To contend otherwise is to attempt to exact hindsight instead of foresight from a motorist faced with a sudden emergency; Fouche v. St. Paul Fire & Marine Insurance Co., 153 So.2d 180 (La.App. 2d Cir. 1963).”

The doctrine of “unavoidable or inevitable accident” is also closely related to the cases involving animals suddenly darting into the path of a motorist and causing an accident. Such accidents are generally considered unavoidable. See Rush v. State Farm Mutual Automobile Insurance Co., 274 So.2d 461 (La.App. 3d Cir. 1973). That case held the preponderance of the evidence tended to show the accident was an unavoidable one caused by the sudden darting of a cow into the road in the path of the approaching automobile before the driver could take steps to avoid striking it.

The Court said:

“It is well settled that when an animal suddenly darts in the path of an automobile traveling at a reasonable rate of speed and the accident occurs before the driver can stop or so maneuver his vehicle so as to avoid the collision, the accident is unavoidable, and there is no liability on the part of the driver.”

See also Holmes v. Lindsey, 15 So.2d 89 (La.App. 1st Cir. 1943).

Finding no actionable negligence on the part of Morris, it is unnecessary to consider the insurance coverage question posed by defendant, Fidelity and Guaranty Underwriters, Incorporated.

We find the trial court erred in not applying the doctrine of “unavoidable or inevitable accident” in the instant cases. The judgments of the district court are reversed and these consolidated suits are dismissed. All costs of court are to be paid by plaintiffs-appellees.

REVERSED AND RENDERED.


author: COVINGTON, Judge.

text:
    Robert L. GRIFFIS, Sr. v. FISCHBACH AND MOORE, INC.
    No. 13411.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 1980.
    Michael R. Connelly, Baton Rouge, counsel for plaintiff-appellee Robert L. Griffis, Sr.
    Victor J. Bradbury and William H. Syll, Jr., Metairie, counsel for defendant-appellant.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   COVINGTON, Judge.

This is a suit brought by Robert L. Grif-fis, Sr., plaintiff-appellee, to recover from Fischbach and Moore, Inc., his employer, wages due him for one day’s work as an electrician in the amount of $80.84. Invoking the provisions of LSA-R.S. 23:631 and 632, plaintiff also seeks to recover penalties and attorney’s fees.

He was terminated on November 29, 1976, from his employment with Fischbach and Moore, Inc. after allegedly being absent for three successive work days. Plaintiff made demand upon defendant for payment of one day’s wages for which he allegedly had not been paid. The wage claim was denied by his employer. This suit followed.

After trial on the merits the trial court rendered judgment in favor of plaintiff for the $80.84 in unpaid wages and also awarded $7,275.60 in statutory penalty wages and $1,000.00 attorney’s fees, making the following findings of fact:

“1. Plaintiff worked a full eight-hour shift on November 26, 1976.
“2. Plaintiff was not paid within the period of time mandated by R.S. 23:631.
“3. Plaintiff’s failure to so pay was arbitrary and capricious.
“4. Plaintiff made timely demand on defendant for payment before institution of this suit, in conformity to R.S. 23:632.”

Defendant-appellant, in its brief, does not contest the fact that one day’s wages was due to the plaintiff; nor does it contest the fact that attorney’s fees should be awarded. Its contention is that the trial court erred in finding that the failure to pay the wages was arbitrary and capricious, and in awarding excessive attorney’s fees.

The law provides that an employer must pay an employee his wages not later than three days after discharge or resignation, and upon default the employer is subjected to penalty wages (up to a maximum of 90 days) and reasonable attorney’s fees. LSA-R.S. 23:631, 632.

Our review of the record in the instant case indicates no manifest error in the trial court’s holding that plaintiff had worked for one day for which defendant had refused or failed to pay him, and that he was entitled to this pay. It is, therefore, concluded that wages were owed to plaintiff but were not paid.

The court correctly applied LSA-R.S. 23:631 and 632 and the jurisprudence interpreting the legislative provisions. The procedure or policies of the employer for the payment of wages to employees must be such that the requisites of the statute can be met. Hendrix v. Delta Air Lines, Inc., 234 So.2d 93 (La.App. 4 Cir. 1970), writ refused, 256 La. 364, 236 So.2d 498 (1970). The record reflects that the failure to pay Mr. Griffis timely was due to a breakdown in the employer’s internal communication and bookkeeping procedures, not due to a reliance on an investigation of an arbitration board, as the employer urges on appeal.

The facts and circumstances as shown by the record do not reveal any elements or instances which would be of a mitigating nature. Appellant argues, as mentioned above, that an arbitration board comprised of members of the union and of the employer had held a hearing and had determined that the employer was justified in terminating the employee, Griffis, due to excessive absences. As the trial judge found, such a hearing in no way determined whether or not the employer owed the plaintiff for one day’s wages and failed to “take sufficient steps to properly investigate plaintiff’s demand for payment.”

The record demonstrates that there did not exist any equitable defense to the employer; there was no bona fide dispute over the amount of wages due. We find that the defendant was in bad faith and acted arbitrarily in failing to pay the employee the wages due; the present facts warrant the imposition of statutory penalties.

On the question of attorney’s fees, the law provides for the mandatory award of attorney’s fees in the event the employee’s suit for unpaid wages is “well-founded.” LSA-R.S. 23:632; Carriere v. Pee Wee’s Equipment Company, 364 So.2d 555 (La.1978). The employee’s suit in the instant case is “well-founded.” The employer failed to pay him his one day’s wages although he was clearly entitled to them.

Defendant finally argues that the $1,000.00 attorney’s fee is excessive in relation to the work and wages involved. On this point the Court in Galata v. Firestone Tire & Rubber Co., 368 So.2d 1243, 1245 (La.App. 4 Cir. 1979), stated:

“. . .We answer that a lawyer cannot be hired to try a lawsuit for a pittance. If the fee were determined by some fraction of the $70 originally in dispute, plaintiff could not find a lawyer to take his case to court. The employer could mock the law with impunity. The fee must therefore be a reasonable one, sufficient to enable hiring a lawyer, notwithstanding that the unpaid wages are only a few dollars.”

We agree with the rationale of the Galata case. We disagree with the holding in Miletello v. Noble Drilling Corporation, 316 So.2d 505 (La.App. 2 Cir. 1975), that what is a “reasonable” attorney’s fee “relates to the amount of wages involved.” We hold that under the facts and circumstances of this case the amount of the award for attorney’s fees was reasonable. See Geer v. Nelson Dodge, Inc., 282 So.2d 794 (La.App. 3 Cir. 1973).

For the reasons assigned, we affirm the judgment of the District Court at appellant’s costs.

AFFIRMED.


text:
    Adolphus W. DUNN v. Louis E. PAURATORE.
    No. 13412.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 1980.

      Robert C. Lowe, New Orleans, for plaintiff, appellant.
    Michael E. Soileau, Metairie, for defendants, appellees.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   COLE, Judge.

This appeal involves an action brought for the reduction of the purchase price of a home based upon alleged defects in the residence.

On June 16, 1977, Dr. Adolphus W. Dunn purchased a residence in Jefferson Parish, Louisiana from Mr. and Mrs. Louis E. Pau-ratore. Shortly thereafter, he discovered the roof leaked noticeably and the swimming pool did not maintain the proper water level. Additionally, gas leaks from an underground pipe were discovered and it was determined the combustion chamber of the heating unit needed replacement.

The plaintiff had the alleged defects remedied and, after doing so, notified the defendants of his action and demanded his costs be repaid. Some negotiations between the parties took place, but without success. This suit followed and, after trial on the merits, plaintiff’s demands were dismissed. We affirm in part and reverse in part.

The Pauratores listed their home for sale with Marie W. Goodfellow, a realtor, on March 30, 1977. Almost simultaneously, Dr. Dunn became interested in the house and contacted the Pauratores who directed him to Mrs. Goodfellow. Dr. Dunn visited the house and made detailed inspections on at least two occasions. He then offered $102,000.00 for the house which was accepted by the owners. However, when an appraisal was made, the appraised value was somewhat lower and the parties then negotiated the actual sales price down to $92,-000.00. Dr. Dunn seeks a reduction in price of $6,294.00 for the defects alleged. Each of the defects will be discussed separately.

The Roof

The roof of this house had leaked in at least one place while the Pauratores resided there and a patch was visible of which Dr. Dunn was aware. In his inspections, he also saw a crack in the ceiling of the foyer. Large rains which fell some two months after the purchase revealed extensive leaking problems.

We find, however, the appellant and Mrs. Goodfellow discussed the roof and it became a factor in the price reduction negotiations. We note particularly the testimony of Mrs. Goodfellow at pages 12 and 13 of her deposition.

“Q You mentioned earlier that you had pointed out on one occasion a patch in the roof to Dr. Dunn, is that correct?
A That’s right.
Q Did Dr. Dunn ever make any comments regarding the condition of the roof or the home in general to you?
A In negotiating we brought up the fact about the roof.
Q What was said regarding the roof?
A Well, it had been patched. They had had trouble with it, and it was-with the age of the roof eventually we felt like he would have to change it.”

The rules pertaining to actions for the reduction of a price are found in Civil Code articles 2541, et seq. Article 2544 provides:

“The action for a reduction of price is subject to the same rules and to the same limitations as the redhibitory action.”

Therefore, our decision here must be governed by the codal provisions concerning redhibition. See Cipriano v. Superior Realty & Construction Corporation, 228 La. 1065, 84 So.2d 822 (1956).

Civil Code article 2521 states:

“Apparent defects, that is, such as the buyer might have discovered by simple inspection, are not among the number of redhibitory vices.”

The evidence clearly preponderates to the effect the buyer here was aware the roof was old and it had previously leaked. Water damage was visible in at least one part of the interior of the house and some reduction in price was made by the seller in view of its condition. We hold the condition of the roof did not constitute a redhibi-tory defect.

The Swimming Pool

Similarly, the plaintiff’s claim for defects in the swimming pool must be rejected. Dr. Dunn employed William Harper, Sr., a swimming pool maintenance and repair expert, to inspect the pool and report to him on its condition. Harper found that it was, in fact, leaking water and so reported to Dr. Dunn. In answer to a request for admissions of fact, the plaintiff admitted, that he had Harper’s report prior to the act of sale. Unconvincing testimony was offered at trial in mitigation of that admission.

In J. H. Jenkins Contractors, Inc. v. Farriel, 261 La. 374, 259 So.2d 882 (1972), the Supreme Court of this state quoted Jackson v. Gulf Insurance Company, 250 La. 819, 199 So.2d 886 (1967), as follows:

“As a legal concept, the judicial confession is designed to dispense with evidence. It has the effect of withdrawing the subject matter of the confession from issue. ... In the landmark case of Frost-Johnson Lumber Co., supra [133 La. 497, 63 So. 122], this Court pointed out that Article 22916 refers only to the confession made in the suit, that is, in the pleadings or note of evidence, ‘for the purpose of dispensing from taking evidence . . .

We find plaintiff has admitted his awareness of the fact the pool was leaking prior to the act of sale and he, therefore, has no claim in redhibition for that defect.

The Gas Leak

Plaintiff has satisfactorily proved a gas leak existed at the time of purchase of the residence which requires a reduction in price for that defect. David Dawson, an expert gas fitter and plumber, related that in July of 1977, approximately one month after the sale, at Dr. Dunn’s request, he located a gas leak in a pipe running to an outside barbecue pit. In his opinion, the leaks emanating from that pipe were taking place prior to the sale.

The only testimony presented in opposition by the defendant was that of Nims Knoblock, an air conditioning and heating expert, who admittedly was not familiar with the installation of gas barbecue pits or the design characteristics of the particular pipe. We find plaintiff is entitled to a reduction in price in the amount of $65.00 for the gas pipe replacement.

The Heating Unit

We further find plaintiff is entitled to a reduction in price for the replacement cost of the combustion chamber in the heating unit. When Dawson located the gas leak in the pipe running to the outside barbecue pit, he also found several leaks in the attic coming from the piping leading to the gas furnace. At that time he inspected the heating unit and advised plaintiff the combustion chamber was decayed. In his view, it presented a dangerous situation in that fire was escaping outside the casing. Although he acknowledged the furnace could have functioned, he was uncertain for how long realizing the condition was getting worse all along.

Efrain Lugo, an expert air conditioning and heating mechanic, was hired by Dr. Dunn in January 1978, to service the heating unit and he found, as did Dawson, the combustion chamber required replacement. At that time the heater wouldn’t work because the combustion chamber had rotted out. This caused fumes to escape into the house and, in the opinion of Lugo, created a very dangerous situation. Lugo testified, . . the flames would come out of the heater and when the flames come out, it can cause anything around it to become ignited and cause a fire.” Lugo also observed, in addition to flames escaping and fumes inside the house, the attic was blackened by soot.

Lugo further testified the plaintiff could not have ascertained the condition of the heating unit by looking at it. He stated one had to be trained in such matters to discover the defect and reiterated several times the defect existed on June 16, 1977, the date of the sale. He left no doubt the furnace was unsafe to operate when plaintiff purchased the house and opined the condition existed for some time prior to the sale. Under these circumstances, plaintiff should be allowed to recover the replacement cost of $887.00. The evidence established any attempt to repair the unit would have cost more that its replacement.

We are cognizant the purchaser of an older house can expect to replace some of the integrated component parts from time to time and should not expect the same useful life from them as afforded in a new house. However, in our view, the buyer of any house has the right to expect and is entitled to receive functional living conditions at the time of purchase. A heating unit which can not be operated safely at the time of sale deprives the occupant of an essential element of a home without which the purchase undoubtedly would not have been made. In this instance, we hold the seller warranted only that the heating unit was free from hidden defects on the date of the sale which would prevent its use to safely warm the interior of the house.

The warranty against redhibitory defects in sales of used equipment is not as extensive as in sales of new equipment but it does require the equipment operate reasonably well for a reasonable period of time. Hob’s Refrigeration & Air Conditioning, Inc. v. Poche, 304 So.2d 326 (La.1974); Bamber Contractors, Inc. v. Henderson Brothers, Inc., Number 13,303 on the docket of this court, rendered June 9, 1980; Richardson v. French, 253 So.2d 602 (La. App. 2d Cir. 1971).

The defendant maintains, under the provisions of Civil Code article 2531, he should have been given an opportunity to repair the defects before Dr. Dunn had them fixed. Article 2531 provides:

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

Pursuant to this authority, the defendant argues since he was not allowed the chance to repair plaintiff cannot recover. A tender of the object sold for repair of vices, while a condition precedent to an action in redhibition, is not required to maintain an action in quanti minoris. Rausch v. Hanberry, 377 So.2d 901 (La.App. 4th Cir. 1979); Sokol v. Bob McKinnon Chevrolet, Inc., 307 So.2d 404 (La.App. 4th Cir. 1975). This is particularly true where, as here, the vices pose an immediate threat to the safety and well-being of the purchaser.

Plaintiff’s claim for attorneys’ fees must also be denied. Civil Code article 2545 specifically provides such an award cannot be made without a showing the seller knew of the defects in the object sold and failed to inform the buyer of them. There is no proof here the defendant knew of the gas leak or knew the combustion chamber of the heating unit was defective.

Judgment is now rendered in favor of plaintiff, Adolphus W. Dunn, and against defendant, Louis E. Pauratore, for the sum of $952.00, plus legal interest thereon from date of judicial demand until paid. All costs of court shall be paid by defendant.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.

      . Both Mr. and Mrs. Pauratore were named as defendants. However, the record does not reflect Mrs. Pauratore was ever served with process and only Mr. Pauratore joined issue by the filing of responsive pleadings.

      . Although plaintiff sued for $6,393.00, he now limits his claim to $6,294.00.


author: LOTTINGER, Judge.

text:
    SUCCESSION of Frank Bertsol MOORE, Frank B. Moore, III v. Gladys B. MOORE.
    No. 13413.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 1980.

      Clifton S. Carl, New Orleans, for plaintiff, appellant.
    Frank S. Normann, New Orleans, for defendant, appellee.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   LOTTINGER, Judge.

This is a rule for collation filed by a nephew against his aunt. The trial court found that the plaintiff-in-rule failed to prove by a preponderance of the evidence the fair market value at the time of transfer of the four groups of immovable property involved in this suit. The plaintiff has appealed.

Frank B. Moore, III petitioned the trial court on November 2, 1971, to open the succession of his grandfather, Frank B. Moore, Sr., who died on January 21, 1957, and to be named administrator of the succession. The petitioner comes to the succession of his grandfather by representation of Frank B. Moore, Jr., son of the decedent and father of the petitioner. The decedent had only two children-Frank B. Moore, Jr. and Gladys B. Moore.

On the day following the filing of the petition for administration, the petitioner filed a rule to show cause why five groups of immovable property purchased by his aunt, Gladys B. Moore, from her parents should not be collated. Only four groups of property were considered at trial. The petitioner has apparently dropped his claim as to the fifth group. In opposition to the rule, the defendant raised the issue of prescription, contending that the plaintiff’s claim for collation had prescribed long before the rule was filed. The trial court never made a final ruling on the prescription issue, and the defendant has not carried the issue forward on this appeal, so this issue is not before us.

The petitioner’s aunt purchased the four groups of immovable property from her parents about a year and a half prior to the death of her father. Her father was the sole vendor in one of the transactions, while both parents were the sellers in the other three transactions. Neither counsel raised the issue of whether the property involved in this case was community or separate property-an issue which would be extremely important should collation be required. Gladys Moore’s 101-year-old mother was still alive at the date of trial, and the collation claimed is only as to the succession of the petitioner’s grandfather. If the property involved is community property, then the collation due by Gladys Moore would only be one half that due if the successions of both of her parents were involved.

One of the plaintiff’s primary burdens at trial was to prove the fair market value of the property sought to be collated as of the date of the transfer. See La.C.C. 1248. The plaintiff’s only witness as to the fair market value of the four groups of property was a real estate appraiser who was qualified as an expert. Apparently acting on instructions from plaintiff’s counsel, the appraiser valued all four groups of property as of January, 1957, the date of death of the decedent.

In written reasons for judgment, the trial court held that the plaintiff’s proof was insufficient:

“The parties to this proceeding are charged with knowledge of the law, and have not established by probative evidence the fair value of the various tracts of property involved in this proceeding as of the dates of the respective acts of sale. * * * It may be that there were no factors at work in the several markets involved that would have drastically affected the fair market value of the properties from the dates of the act of sale until the death of Frank B. Moore, Sr. On the other hand, such factors may have existed which would have escalated prices upward or downward in the intervening period of time from sale to death of vendor Moore. In any event, it is the responsibility of the plaintiff in rule to prove his case by a preponderance of the evidence, and it is not for the Court to speculate as to what was or what might have been. It is incumbent upon the plaintiff in rule to prove all elements of his case by a preponderance of the evidence. Value at the time of sale is a vital element and has not been proven.”

Besides the fact that the plaintiff’s appraisal was made at the date of death instead of at the date of transfer, the trial judge also expressed doubt about the reliability of the plaintiff’s appraised valuations. Each parcel of property will be considered under a separate heading below.

THE CADDO PROPERTY

On July 28, 1955, Gladys B. Moore purchased from her father, Frank Moore, Sr., 29 acres and three lots of property in Caddo Parish. The recited consideration in the act of sale was $200.00. The plaintiff’s appraiser estimated that the fair market value of the 29 acres and three lots in Caddo Parish in 1957 would have been $35,200.00. He arrived at this figure after finding that the acreage would sell for $1,000.00 per acre, that two of the lots would sell for $100.00 a piece and that the third lot would sell for $6,000.00.

Gladys testified that the Caddo acreage was “nothing but mud and swamp” covered with high grass and occupied by a squatter. Testimony in the record indicates that she sold all of the Caddo property on June 3, 1968-some 13 years after she acquired it— for $2,000.00 by quitclaim deed. (The testimony and documentary evidence on the quitclaim question are woefully inadequate for reasons which we have not been able to understand. Gladys’ counsel elicited testimony about her sale of the property in 1968, but he failed to introduce the deed of sale or to describe with clarity and particularity the extent of the property transferred by her. The testimony suggests, however, that Gladys sold the acreage and the lots by quitclaim deed in 1968. Her testimony as to the sale was unrebutted.)

The trial court found that the appraiser’s valuation was insufficient because no testimony was offered that his evaluation was based on sales of surrounding properties comparable in time and space. The transcript indicates that the appraiser made his decision after viewing the property and discussing valuation with various people in the area. He placed a nominal value of $100.00 on each of two of the lots because he was unable to determine the dimension of the lot. He valued the third lot, which had a house on it, at $6,000.00 after viewing the property and house.

THE ST. TAMMANY PROPERTY

On July 28, 1955, Gladys purchased from her father and mother a certain parcel of land in St. Tammany Parish comprising 13 lots for a recited consideration of $50,-000.00. The dimension of the property from which the lots were carved is about 333 feet by 480 feet by 490 feet by 348 feet. The appraiser valued the St. Tammany land at a total of $80,000.00, after finding that there were four parcels involved, each with a different appraisal value.

The defendant testified that she bought the property from her father and mother for $50,000.00, after her father had offered the property to the public for $45,000.00. A circular purportedly prepared by Gladys’ father as an advertisement for the property was introduced into evidence. The circular corroborates Gladys’ testimony that the St. Tammany property was offered to the public for $45,000.00 by Frank Moore, Sr.

The plaintiff’s appraiser testified that he had difficulty locating the exact boundaries of the property in St. Tammany because the descriptions did not match a map that he obtained. The appraiser also testified that he did not have enough time to make a proper selection of comparable sales, although he did have time to make an opinion as to the fair market value of the property. The trial judge, saying he did not understand the difficulties encountered by the appraiser, found the property descriptions to be “clear.” The trial judge also apparently believed Gladys Moore’s testimony that, contrary to what the appraiser believed there were not two houses situated on one of the pieces of the St. Tammany property.

THE ALLARD STREET PROPERTY

On September 23, 1955, Gladys bought from her parents two 30 by 110 feet lots of ground on Allard Street in New Orleans for a recited consideration of $10,000^00. Of the total sales price, $3,360.95 was paid in cash while the balance of $6,639.05 represented the amount remaining on a mortgage assumed by Gladys. The appraiser valued the Allard Street property at $27,-000.00, basing his decision on two other sales he considered comparable to the sale by Mr. and Mrs. Moore to their daughter. One of the purportedly comparable property sales was for $22,000.00, and the other for $31,500.00. The trial court voiced concern with the Allard Street appraisal because there was a lack of testimony in the record to describe the condition of the house on the property in 1957, the time for which the evaluation was made.

THE TULANE STREET PROPERTY

On September 23,1955, Gladys purchased from her parents a lot on Tulane Street measuring about 22 feet by 99 feet. The recited consideration was $18,000.00. The plaintiff’s appraiser valued the Tulane Street property at $46,100.00, or $20.00 per square foot. As with the Allard Street property, he used what he considered to be comparable sales at or near the same time as Gladys Moore purchased the property from her parents. The sales prices of the nine comparable sales investigated by the appraiser ranged from $10.71 a square foot to $44.63 a square foot. Gladys paid $8.55 per square foot for the Tulane Street property.

The trial court raised the same concern about the Tulane Street property as it did about the Allard Street property. The record was devoid of testimony to describe the condition of improvements situated on the Tulane Street property as of January, 1957, the date for which the fair market value was being determined.

We agree with the trial court’s determination as to the St. Tammany, Allard Street and Tulane Street properties. The plaintiff-in-rule has simply failed to bear the burden imposed upon him by law. To determine whether the forced heir from whom collation is sought paid such a “very low price” for immovable property so as to require the collation, the claimant must prove the fair market value of the property at the time of the transaction. La.C.C. art. 1248; Estate of Schwegmann v. Schwegmann, 298 So.2d 795 (La.1974). The fair market value of immovable property at the date of death is important and relevant only after a determination has been made that collation is due. Fair market value at date of death then becomes important to show how much must be collated.

Given the propinquity of the dates of transfer and the date of death in this case, we are willing to concede that the testimony of the petitioner’s appraiser bears some probative value. But even conceding arguendo that the value of the three groups of property remained fairly constant from the date of transfer until the date of death, the plaintiff has still failed to prove the fair market property value at the date of death. We agree with the trial court’s reservations as to the testimony of the appraiser and find that collation is not due on the three groups of property.

The Caddo property, however-the one discussed first in the facts above-presents a more difficult question. Even considering the preinflation value of the dollar in the mid-1950s, the sale of 29 acres and three lots of land for $200.00 in 1955 appears to be on the low side. But the inadequacy vel non of the $200.00 consideration never ripened into an issue in this case, because the plaintiff failed to show by a preponderance of the evidence the fair market value of the property at the time of transfer. No comparable sales were introduced into evidence and the appraiser based his judgment solely on conversations with area residents and on his own inspection of the property. The probative value of the plaintiff’s appraisal was further weakened by Gladys’ testimony that there was a squatter on the land and that the property was sold some 18 years later for only $2,000.00. As indicated earlier, the testimony as to the sale of the property by Gladys in 1968 is confusing and meager. But it is also unrebutted. The defendant’s testimony and other evidence was sufficient to convince the trial court that the appraiser’s valuation was less than credible, and we must agree.

We must also agree with the trial court’s finding that Gladys paid all considerations recited in the acts of sale. Therefore, the plaintiff’s claim that no consideration changed hands is likewise untenable.

As the trial judge wrote, it was not his job “to speculate as to what was or what might have been.” When a plaintiff fails to present enough evidence to prove a vital element, or when his sketchy proof is muddled by the defendant’s rebuttal, this court will not attempt to guess what actually happened. The plaintiff has failed to show by a preponderance of the evidence the fair market value of the property at the time of the transaction.

Therefore, for the above and foregoing reasons, the decision of the trial court is affirmed at appellant’s costs.

AFFIRMED.


text:
    Henry BAPTISTE v. Mary Jo GRANADA.
    No. 13414.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 1980.

      Norman L. Haymer, Jr., Baton Rouge, for plaintiff.
    Gracella Simmons, Baton Rouge, for defendant.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   COLE, Judge.

This is an appeal by the defendant, Mary Jo Granada, from a judgment in favor of the plaintiff, Henry Baptiste, in the sum of $1,117.97, with interest and at defendant’s costs. We affirm.

The suit arises out of a motor vehicular accident on the busy streets of the City of Baton Rouge during a rush hour on Tuesday, July 3, 1979, the accident occurring in the 200 block of St. Ferdinand Street about 4:30 p. m. The accident was alleged to have happened when defendant’s Monza car abruptly changed traffic lanes directly into the path of an Oldsmobile automobile driven by Edith Williams, necessitating her to brake her automobile suddenly, which maneuver in turn caused the plaintiff’s Cadillac to run into the rear of the Williams vehicle, resulting in property damage to the Cadillac in the amount of $1,117.97.

After hearing the evidence and considering the arguments of counsel, the trial judge found that the mishap was caused by “the fact that Miss Granada attempted to change lanes before the way was clear.” The judge also found that Mr. Baptiste was not guilty of contributory negligence in that “the maneuver that Miss Granada made was [not] reasonably foreseeable”, and was not a maneuver which a reasonable person should, under the circumstances, have expected. We agree. We have carefully reviewed the record and find that it amply supports the trial judge’s factual findings. There is a reasonable factual basis for the finding in the trial court; and we determine that the record establishes that the finding is not manifestly erroneous. See Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

The record establishes that Miss Granada attempted to change lanes from the right (outside) lane to the left (inside) lane in which the Williams and Baptiste vehicles were proceeding at a reasonable rate of speed, and that this maneuver was attempted when the Williams car was no more than two or three car lengths, or at least was reasonably close, behind her in the left lane.

Miss Granada testified in part as follows:

“Q. Now, Miss Granada, I believe your words were that you didn’t really see Ms. Williams’ vehicle?
A. Right.
Q. Earlier you testified that she was directly on the side of you somewhat to the rear of your vehicle, is that correct?
A. I don’t understand what y’all asking.
Q. How far behind your vehicle-how far behind your vehicle was Ms. Williams’ vehicle?
A. I didn’t-I didn’t see her until I-she blew her horn and it was-it was kind of like in the back of the car, the back end of my car.
Q. Would you consider her vehicle being in the blind spot?
A. Right.
Q. Okay. The front of her vehicle was alongside of your back-back of your vehicle?
A. I’m not sure. I don’t really remember. It happened about six months ago.”

She continued:

“Q. Okay, you said you looked in the rearview mirror, which mirror? Was it the outside mirror?
A. No, the-
Q. Just-the rearview mirror inside?
A. Uh-hum, yes, sir.
Q. And you weren’t able to see the car driven by Ms. Williams?
A. No, sir.
Q. She was in the blind spot I believed you testified?
A. Right.
Q. Did you turn around and look to see-
A. Yeah. I didn’t turn completely. I just kind of looked like that-
Q. And you didn’t see anybody?
A. Right.
Q. All right. How far over in that lane did you get before you heard the horn?
A. Like my-my left front tire and maybe a little more. I’m not really sure.
Q. Would you describe the maneuver that you made? Was it gradual?
A. Yeah, it was gradual.
Q. It was nothing abrupt or anything?
A. No, sir.
Q. All right, what about the maneuver you made after you heard the horn, was that an abrupt turn back into your lane?
A. Yes, sir, ’cause it scared me like.
Q. That you was that close to-it was a near, in fact you almost had an accident with her, is that correct?
A. I don’t really remember how close it was but, you know, when I heard the horn, it just scared me and I got back over.
Q. Yanked it back over?
A. It was pretty close I guess.
Q. And that’s when you heard the brakes?
A. Right.
Q. Was it an accident-do you feel that the accident would not have occurred had you not made that maneuver? Is that what you said?
A. (No audible response).”

The applicable statute is LSA-R.S. 32:79, which provides:

“Whenever any roadway has been divided into two or more clearly marked lanes for traffic, the following rules, in addition to all others consistent herewith, shall apply.
“(1) A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.
“(2) The department may erect signs directing slow moving traffic to use a designated lane or designating those lanes to be used by traffic moving in a particular direction, and drivers of vehicles shall obey the directions of such signs.”

The record supports the conclusion that Miss Granada attempted to change lanes without first ascertaining if the maneuver could be safely executed, and that her negligence was the proximate cause of the accident. Vicknair v. Olin, 371 So.2d 360 (La.App. 4 Cir. 1979); Trabeaux v. Sanchez, 279 So.2d 793 (La.App. 4 Cir. 1973).

The defendant next argues that the trial judge erred in failing to find the plaintiff guilty of contributory negligence, because of the established jurisprudence that a following motorist is presumed negligent if he collides with the rear of a leading motorist, as it is generally assumed that he has failed to maintain a proper lookout or that he was following too closely. Welch v. Thomas, 263 So.2d 427 (La.App. 1 Cir. 1972), writ refused, 262 La. 1132, 266 So.2d 434 (1972); Arceneaux v. German, 207 So.2d 244 (La.App. 1 Cir. 1968), writ refused, 252 La. 110, 209 So.2d 40 (1968).

However, it is equally well established that the presumption of fault on the following motorist may be overcome by showing that the following motorist was put in a “sudden emergency” situation to which he has not negligently contributed and during which he used the best judgment under the circumstances. Salemi v. St. Paul Fire & Marine Insurance Co., 339 So.2d 1264 (La.App. 1 Cir. 1976), writ refused, 342 So.2d 674 (La.1977). The facts established by the record reveal that Miss Granada created a sudden emergency situation by abruptly attempting to change her traffic lane without first ascertaining if the way was clear for her to execute such a maneuver; and that Mr. Baptiste did all that he could under the circumstances, but was just unable to brake his car in time to avoid striking the immediately preceding Williams vehicle which stopped abruptly when Mrs. Williams “jammed” on her brakes to keep from hitting the Granada Monza automobile. Mr. Baptiste testified that “there was a car in the right lane next to me and as the lady (Mrs. Williams) in front of me hit her brakes, I tried to hit mine and go around her to keep from hitting her from the rear . . .” (R 47) He also stated that he was about one-to-two car lengths behind the Williams Oldsmobile just prior to the accident. There was no damage done to the Monza or the Oldsmobile in the accident, although the latter was struck in the rear (there was no contact made with the Monza).

We find, as did the trial judge, that the plaintiff’s evidence overcame any presumption of fault on his part and showed that he did not negligently contribute to the accident.

For the foregoing reasons the judgment of the lower court is affirmed; costs of this appeal are to be borne by the appellant.

AFFIRMED.


author: COLE, J.

text:
    W. Frank EMERSON v. EMPIRE FIRE AND MARINE INSURANCE COMPANY, et al.
    No. 13418.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 1980.
    Writ Granted Sept. 26, 1980.

      Andrew Jack Bennett, Jr., Baton Rouge, counsel for plaintiff-appellant W. Frank Emerson.
    Stephen Vogt, and H. Evans Scobee, Baton Rouge, counsel for defendants-appellants Empire Fire & Marine Insurance Company, Big Chief Truck Lines, Inc. & Danny Schexnayder.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   COLE, J.

This is a suit for damages, unusual in part, arising out of a vehicular collision.

On April 6, 1977, while operating his automobile on Louisiana Highway 30 in Ascension Parish, Louisiana, W. Frank Emerson was struck from the rear by a truck owned by Big Chief Truck Lines, Inc., and driven by Danny Schexnayder.

As a result of the collision, Emerson’s automobile caught fire and it and most of its contents were totally destroyed. Emerson also suffered bodily injuries.

This suit was brought by Emerson against Big Chief, Schexnayder, and their insurer, Empire Fire and Marine Insurance Company. After trial on the merits, the district court found for the plaintiff and entered judgment for certain monetary awards, one of which was the sum of $2,500.00 for the loss of certain experimental records which plaintiff had compiled on the study of brain waves, all of which were destroyed in the fire.

Plaintiff has appealed devolutively and defendants appealed suspensively. The only issue before us is the propriety of the award for the loss of the research records. We affirm.

Emerson is a retired United States Army officer and a real estate salesman on a part time basis. In 1973, in conjunction with the activities of his brother, Robert B. Emerson, Sr., also a retired Army officer, plaintiff became interested in the field of biofeedback which is a term descriptive of the analysis of brain waves. Since that time, he has conducted numerous tests and experiments on this subject at the laboratory located in his brother’s residence. At the time of the accident, he had recorded data from 1,763 of such tests in two notebooks which happened to be in his automobile when it was destroyed. Of these he had analyzed and done case summaries of about 200 of the tests.

The experiments were conducted primarily by the use of an electroencephalograph machine which Emerson was trained to use by his brother and other persons who frequented the laboratory in connection with these studies. Although Emerson had no formal education in the fields of psychology or psychiatry, he read considerable literature contained in the extensive library maintained at the laboratory and he also attended and took part in many study sessions on the subject. He would obtain volunteers at meetings then held in his brother’s residence who would take part in the tests he wanted to perform. The tests consisted mainly of the study of various aspects of brain reaction to varied stimuli. The time required for each experiment was approximately thirty minutes. He anticipated no economic gain from these efforts.

Concerning the claim for the lost documents, the district judge stated:

“The major issue in this case is the amount Emerson is entitled to recover for certain research notes lost in the fire. The research notes consisted of case histories and EEG data from approximately 1700 individuals. This research was not employment related, nor was it in furtherance of any academic degree. Emerson testified that the tests were for his own gratification and curiosity. In light of this, the Court concludes that Emerson is entitled to recover $2,500.00 for the loss of his research notes.”

Plaintiff claims, however, the proper measure of damages for this loss is the cost of reproduction of the experimental results, which is far greater than the award made by the district court. At trial, the testimony of Dr. Roger L. Burford, an economist, was presented. In the opinion of that expert, the reproduction cost of the items in $77,486.00. We are unable to agree with the arguments advanced by Emerson in that regard.

In Jordan v. Travelers Insurance Company, 257 La. 995, 245 So.2d 151 (1971), the Supreme Court of the state observed:

“Where there is a legal right to recovery but the damages cannot be exactly estimated, the courts have reasonable discretion to assess same based upon all the facts and circumstances of the case. Civil Code Art. 1934(3); Brantley v. Tremont & Gulf Ry. Co., 226 La. 176, 75 So.2d 236 (1954), and decisions therein cited.”

There is no mechanical rule that can be universally applied to each damage claim; each case must be individually evaluated according to the evidence presented. Coleman v. Victor, 326 So.2d 344 (La. 1976).

The experimental records destroyed here had no market value. Emerson admittedly was not engaged in this activity for profit and did not intend to use the records for income purposes. Therefore, these items had an intrinsic value to their owner only. It has been previously decided by the courts of this state that where items of destroyed property have no market value and are of personal value only to the owner, the correct measure of compensation is the actual value of the property to the person sustaining the loss. See Lack v. Anderson, 27 So.2d 653 (La.App.2d Cir. 1946); Mosely v. Sears, Roebuck and Company, 167 So.2d 408 (La.App.1st Cir. 1964).

As this court recently stated in Ewell v. Petro Processors of Louisiana, Inc., 364 So.2d 604 (La.App.1st Cir. 1978); writ refused, 366 So.2d 575:

“We think that the proper measure of damages must be determined from the circumstances of each case, considering such factors as the extent of the damage; the use to which the property may be put; extent of economic loss, both as to value and income; and the cost of and practicability of restoration. (Emphasis added.)

In addition to those guidelines, the “much discretion” vested in the trial judge must also be considered. We find no abuse of that discretion in the monetary damages awarded here.

The judgment of the district court is affirmed. Costs of this appeal are to be paid one-half by plaintiff and one-half by defendants.

AFFIRMED.


text:
    Murlon WEBB v. POLK CHEVROLET, INC.
    No. 13368.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 1980.
    Writ Refused Sept. 19, 1980.

      Johnnie A. Jones, Adair D. Jones, Baton Rouge, counsel for plaintiff-appellant Mur-lon Webb.
    David M. Vaughn and John Dale Powers, Baton Rouge, counsel for defendant-appel-lee Polk Chevrolet, Inc.
    Henry D. Salassi, Jr., Baton Rouge, counsel for third party defendant-appellee Chevrolet Division, General Motors Corp.
    Before ELLIS, CHIASSON and PONDER, JJ.
   This is a redhibitory action in which plaintiff Murlon Webb seeks the rescission of a sale of an automobile made to him by Polk Chevrolet, Inc. During the presentation of his case, plaintiff placed in evidence a document entitled “Purchase and Disclaimer Contract,” which reads, in pertinent part, as follows:

“I do hereby contract to purchase from Polk Chevrolet, Inc., under the terms and conditions specified herein, and on the reverse side of this agreement, all of which I have read, the vehicle described above for the sum of $_It is agreed, however, that neither you nor the Manufacturer will be liable for failure to effect delivery.
DISCLAIMER AND WAIVER OF ALL WARRANTIES
“Any warranties, express or implied, on the products sold hereby are those made by the manufacturer. There is no service contract made or entered into by Polk Chevrolet, Inc. Seller, Polk Chevrolet, Inc., expressly disclaims all warranties, express, or implied, including any implied warranties of merchantability or fitness for a particular purpose, and Polk Chevrolet, Inc. neither assumes nor authorizes any other person to assume for it any liability in connection with the sale of said product.
“Read and agreed to this _4_ day of May. 1978.
s/ Murlon Webb_
Buyer
“This order is not binding on dealer until accepted by dealer in writing. The warranty exclusion has been brought to my attention and explained to me and I have read the matter printed on the back hereof and agree to it as a part of this order the same as if it were printed above my signature. The front and back of this order comprise the entire agreement pertaining to this purchase and no other agreement of any kind, verbal understanding or promise whatsoever, will be recognized. Receipt of a copy of this order is hereby acknowledged.”

The document was signed by plaintiff twice: once at the end of the paragraph disclaiming all warranties, and again at the end of the contract.

When plaintiff attempted to testify that he had not read, nor had explained to him, the warranty disclaimer, defendant objected on the ground that the foregoing document was placed in evidence without limitation by plaintiff, that plaintiff was bound by its contents, and that plaintiff could not introduce evidence which tended to vary the terms thereof. The objection was sustained, and plaintiff was obliged to place all such evidence in the record by way of proffer.

At the conclusion of plaintiff’s case, defendant moved for a directed verdict, urging that plaintiff had waived all warranties as to Polk, and was therefore not entitled to bring the redhibitory action. The trial judge agreed, and judgment was signed dismissing plaintiff’s case. Plaintiff has appealed.

In Prince v. Paretti Pontiac Company, Inc., 281 So.2d 112 (La.1973), the court stated that although “the buyer may waive the implied warranty against hidden defects (C.C. 1764(2) and 2548), the waiver must be clear and unambiguous. C.C. 2474; Andry v. Foy, 6 Mart. (O.S.) 689 (1819).” The Prince case, supra, and its progeny have established the rules that a waiver must be clear and unambiguous; must be contained in the sale document; and must be either brought to the attention of the buyer or explained to him. Prince v. Paretti Pontiac Company, Inc., supra; Hendricks v. Horseless Carriage, Inc., 332 So.2d 892 (La.App. 2nd Cir. 1976); Thibodeaux v. Meaux’s Auto Sales, Inc., 364 So.2d 1370 (La.App. 3rd Cir. 1978).

In this court, plaintiff contends that the waiver in this case does not satisfy the foregoing requirements only because it was not brought to his attention or explained to him. However, the “Purchase and Disclaimer Contract,” which was placed in evidence without limitation by plaintiff, and which was twice signed by him, contains a statement to the effect that the waiver clause had been brought to his attention and explained to him. Defendant argues that, under the circumstances of its introduction, plaintiff is bound by the expressions contained in the document, and cannot give testimony to vary the terms thereof.

We cannot agree. Admittedly, there is a general rule of evidence to the effect that a document is conclusive evidence of its contents as to the party who introduces it into evidence. However, other circumstances can militate against the strict application of this rule. It is apparent from the pleadings and from the pre-trial order that the “Purchase and Disclaimer Contract” was a major part of the defense of Polk Chevrolet. It was placed in evidence by plaintiff at the beginning of the trial, before any witnesses had been called, and at a time when documents relating to the case in general were being introduced. We think it clear that the document was introduced by plaintiff only as evidence of the sale transaction, and not as proof of all of the conditions contained therein.

The rules of evidence are necessary to the orderly conduct of legal proceedings, but should not be so construed as to limit the presentation of a party’s case, when the issues are clear and a substantial injustice might result from a strict application thereof.

Plaintiff’s testimony, and that of his then fiancée, which is in the record by proffer, and which is not contradicted, is to the effect that plaintiff did not read the document and that it was neither read nor explained to him. Under the Prince case, supra, he would not be bound thereby. The defendant may be able to prove otherwise when its case is presented, but plaintiff has made out a prima facie case in chief.

We hold that, under the circumstances of this case, plaintiffs evidence, that he had not read nor had read and explained to him the document, should have been admitted in evidence; and that the motion for a directed verdict should not have been granted on the basis of the alleged waiver of warranty contained therein.

The judgment appealed from is therefore reversed and set aside, and there will be judgment remanding the case to the trial court for the completion of the trial hereof, in accordance with law. Defendant shall pay all costs of this appeal, with all other costs to await final determination hereof on the merits.

REVERSED AND REMANDED.


author: ELLIS, Judge:

text:
    Jack MORAN v. CANAL INDEMNITY INSURANCE COMPANY et al.
    No. 13371.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 1980.

      J. Tom Anderson, Hammond, for plaintiff.
    Sera H. Russell, III, Baton Rouge, for defendant.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge:

This is a damage suit for personal injuries, arising out of an intersectional collision between a pickup truck, in which plaintiff Jack Moran was riding as a guest passenger; and a tractor-trailer rig owned by K. C. Forest Products, Inc., operated by Monroe Brumfield, Jr., and insured by Canal Indemnity Insurance Company. After trial on the merits, judgment was rendered in favor of plaintiff for $18,478.78, including $10,290.10 lost wages, $688.68 medical expenses and $7,500.00 in general damages for pain and suffering. Defendants have appealed.

In this court, it is argued that K. C. and Canal Indemnity should not have been found solidarily liable with Brumfield, because Brumfield was not in the course and scope of his employment when the accident happened; and that the awards for lost wages and pain and suffering were excessive.

The record shows that the accident happened at the intersection of East Morris Street and Range Road in Hammond, Louisiana. Sherman Kinchen, president of K. C., testified that, on the day of the accident, Brumfield had delivered a load of piling to New Orleans and was to return directly to Mr. Kinchen’s house in Albany. Kinchen did not know what Brumfield was doing on Range Road in Hammond, and stated that Brumfield was not on company business. Brumfield was not called to testify in the case. It is based on this evidence that K. C. and Canal Indemnity are claiming that Brumfield was not in the course and scope of his employment.

There is a presumption that an employee who is involved in an accident while operating his employer’s vehicle is within the course and scope of his employment. This presumption may be rebutted, but only with clear and convincing evidence. Williams v. Morgan, 356 So.2d 1029 (La.App. 1st Cir. 1977). The only evidence offered in this case is that Brumfield was not on the most direct route from New Orleans to his employer’s place of business. There is no explanation of the apparent digression. We find this evidence alone to be insufficient to overcome the presumption.

On the question of damages, the record shows that the accident happened on April 28, 1978. Mr. Moran was taken to a hospital emergency room, where he was seen by Dr. John A. Walker. Dr. Walker examined plaintiff and ordered a series of X-rays, all of which proved to be normal. Plaintiff was found to have “mild multiple abrasions and soft tissue injuries.” Dr. Walker also found that plaintiff had a mild cervical strain. Plaintiff was sent home from the emergency room.

On May 1, 1978, plaintiff again saw Dr. Walker, complaining of more pain. Dr. Walker felt that his complaints were to be expected, and did not recommend hospitalization, which he felt to be unnecessary. However, he told plaintiff that he would place him in the hospital if plaintiff wanted to be hospitalized. Plaintiff was hospitalized that day and given another series of X-rays and other tests, all of which proved to be normal. An orthopedist, called in consultation, confirmed Dr. Walker’s diagnosis of mild abrasions, soft tissue injury and cervical strain, and recommended the prescription of a mild analgesic.

Plaintiff was discharged from the hospital on May 3rd. He last saw Dr. Walker on May 12,1978, with his pain less severe. His physical examination was normal except for mild tenderness in the back of his neck. Dr. Walker expected that plaintiff would be able to return to work in from two to six weeks.

Plaintiff testified that he remained in bed at home after the accident. He went to the hospital because his neck and shoulder were so stiff he could not get out of bed. After his hospitalization, he testified that he was almost entirely bedridden for two weeks. His wife had to help him on with his shirt because his shoulder was so stiff. He testified that he had dreams about the accident which necessitated his taking Valium in order to sleep.

He returned to the union hall on August 21st to seek work. However, he stated that he was still in pain and was looking for work only because he needed money. He returned to work finally on about September 1st, although, he stated, he was working in pain. As of the time of trial, on September 12, 1979, he stated that he still had occasional stiffness in his left shoulder, and was unable to operate a bulldozer because it' necessitated his using his left arm too much. Of course, his original injury was to the neck and right shoulder.

Under the above circumstances, we find that the trial judge abused his discretion in awarding $7,500.00 for pain and suffering. Plaintiff’s injuries were consistently characterized as mild by his physicians. Plaintiff himself could not recall which shoulder he had injured, when he was testifying about his alleged permanent disability. The doubt cast on plaintiff’s credibility by this and other inconsistencies in his testimony convinces us that little weight should be given thereto. Accepting the medical testimony, which is uncontradicted except by plaintiff, we find that plaintiff’s disability continued for two months after his injury. The most that should have been awarded for these mild injuries for that period of time is $3,500.00.

At the time of his injury, plaintiff was between jobs. He was a heavy equipment operator, with a base pay of $11.06 per hour. In addition, he would receive time and a half for any work done before 7:00 a. m. and after 3:30 p. m., and double time for work done on Saturdays, Sundays and holidays. There is testimony that plaintiff sometimes would work at a plant which was being reconditioned, in which case he would work a 10-hour per day, six-day week. Such a job is known as a “turnaround,” and there is testimony that the months between April and September are the best months for turnarounds. There is, however, no specific evidence that turnarounds would have been available to plaintiff while he was disabled.

Plaintiff testified that when he returned to the union hall on August 21,1978, to seek work, there was eight hour per day employment immediately available. He learned that there was a turnaround available in about two weeks, and chose to wait for that so that he would be sure to be able to do the work.

The trial judge’s award of $10,290.10 for lost wages was clearly predicated on the assumption that plaintiff would be working turnarounds throughout his disability. Defendants complain that the record does not justify such an assumption. They also claim that deductions should be made from an award for income tax which would have been withheld.

We are of the opinion that plaintiff has not proved the amount of lost wages awarded by the trial judge. The evidence does not preponderate to the effect that plaintiff would have worked turnarounds during his disability. We do find that there was work available, and believe that plaintiff should be compensated for 40 hours per week for a period of eight weeks at a rate of $11.06 per hour, or a total of $3,539.20. Defendants are incorrect in their assertion that we should deduct from the award income tax which would have been withheld from plaintiff’s wages. See Reeves v. Louisiana and Arkansas Railway Co., 304 So.2d 370 (La.App. 1st Cir. 1974).

The judgment appealed from is therefore amended so as to reduce the amount thereof to $7,727.88, and, as amended, it is affirmed. All costs of this appeal shall be shared equally by the parties, and all other costs shall be borne by defendants.

AMENDED AND AFFIRMED.


text:
    OLINDE HARDWARE AND SUPPLY COMPANY, INC. v. Ivory B. LONDON et al.
    No. 13376.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 1980.
    Rehearing Denied Sept. 4, 1980.
    Ralph Brewer, Baton Rouge, for plaintiff-appellee Olinde Hardware & Supply Company, Inc.
    Michael O. Hesse, St. Francisville, for defendant-appellant Esther Selena Davis.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge:

On October 22, 1976, Ivory B. London purchased various articles of furniture from Olinde Hardware and Supply Co., Inc., for a total base price of $1,314.19 including taxes. A finance charge of $353.36 was added, making a total of $1,667.55. Mr. London executed a combination invoice, sale and chattel mortgage, which document carried the number 2143Ó. On November 2, 1976, Mr. London and Esther Selena Davis purchased a refrigerator from Olinde for a base price of $315.88, including taxes. The same combination invoice, sale and chattel mortgage form was used, and only the refrigerator is specifically described thereon. To the price of $315.88 was added the sum of $1,314.19, identified as “Invoice # 21430,” for a total of $1,630.07. To this was added a finance charge of $438.01, making a total of $2,068.08. Both Mr. London and Ms. Davis signed the sale and chattel mortgage as well as a promissory note. The sale and chattel mortgage was not notarized or otherwise acknowledged, nor was the note par-aphed for identification therewith.

This suit was brought by Olinde against both Mr. London and Ms. Davis, alleging a balance due on the note, allowing for a credit for unaccrued interest, of $1,815.15, plus interest and attorney’s fee. Service was not effected upon Mr. London, but Ms. Davis has answered, denying the allegations of the petition. She also filed a reconven-tional demand against Olinde, alleging violation of Consumer Credit Protection Act, 15 U.S.C. § 1601 et seq., and Regulation Z of the Federal Reserve Board, 12 C.F.R. 226.1 et seq., by virtue of which it is alleged that Olinde is liable to Ms. Davis for certain offsets against the main demand.

Trial was held on the merits on a stipulation of fact, and the note and two invoice, sale and chattel mortgage forms executed by Mr. London and Ms. Davis. Judgment was rendered in favor of plaintiff and defendant has appealed.

In this- Court, Ms. Davis does not contest her liability on the main demand, but alleges that plaintiff is liable for civil penalties because of the violations of the Consumer Protection Act, supra, which penalties she claims as an offset against the main demand.

Defendant claims, specifically, that the disclosures required are not made in the proper form or location, and that the property subject to the security interest retained is not clearly identified.

12 Code of Federal Regulations § 226.-801(b), provides:

“Where a creditor elects to combine disclosures with the contract, security agreement, and evidence of a transaction in a single document, the disclosures required under § 226.8 shall, in accordance with § 226.6, be made on the face of that document, on its reverse side, or on both sides: Provided, That the amount of the finance charge and the annual percentage rate shall appear on the face of the document, and, if the reverse side is used, the printing on both sides of the document shall be equally clear and conspicuous, both sides shall contain the statement, ‘NOTICE: See other side for important information,’ and the place for the customer’s signature shall be provided following the full content of the document.”

The invoice, sale and chattel mortgage form used by plaintiff is deficient in two respects. First, the phrase “NOTICE: See other side for important information” appears on neither side of the document. The phrase “Continued on Reverse Side” appears on the front thereof, but there is no similar phrase on the reverse. Second, the material on the reverse side is printed in a typeface substantially smaller than the material which appears on the front of the document.

We are further of the opinion that describing by invoice number only part of the property subject to the security interest retained is not a sufficient compliance with 15 U.S.C. § 1638(a)(10), which requires a “clear identification” of such property. We therefore hold that plaintiff has violated the disclosure provisions of the Consumer Credit Protection Act, in the foregoing respects, and is liable for civil penalties as provided therein.

Under 15 U.S.C. § 1640(a), the appropriate penalty is twice the amount of the finance charge, which was $438.01, or a total of $876.02. Ms. Davis is also entitled to a reasonable attorney’s fee, which we fix at $500.00.

Plaintiff claims that it was not required to make disclosures to Ms. Davis, because she was a party secondarily liable and not a purchaser. The invoice, sale and chattel mortgage show the purchaser of the merchandise to be Ivory London. Ms. Davis signed the form as a purchaser and signed the note as a cosigner. 15 U.S.C. § 1631(b) provides that if “there is more than one obligor, a creditor need not furnish a statement of information . to more than one of them.” 12 C.F.R. § 226.6(e) provides that “if there is more than one customer or lessee, the creditor or lessor need furnish a statement of disclosures required by this Part to only one of them other than an endorser, comaker, guarantor, or a similar party.” Plaintiff relies on the foregoing expressions to relieve it of the responsibility of making the required disclosures to Ms. Davis.

The federal courts have held that the obligation of the creditor to make the required disclosures only to the consumer who is primarily liable, under 12 C.F.R. 226.6(e), is merely to lessen the burden of paperwork. It does not operate to limit the right to recovery under this section to the primary obligor, if the disclosure to that one has been faulty. Allen v. Beneficial Finance Co. of Gary, Inc., 531 F.2d 797 (7th Cir. 1976); Tarplain v. Baker Ford, Inc., 466 F.Supp. 1340 (D.C.R.I.1979). This also means that both the primary obligor and the secondary obligor, whether cosigner or comaker, can recover the penalty provided. There is no requirement that the penalty be divided between them, and the cases which have so held, when husband and wife are the obligors, have been in general discredited. Those cases have also indicated, in dicta, that a different result would have been called for in the case of “individual” obli-gors. St. Marie v. Southland Mobile Homes, Inc., 376 F.Supp. 996 (E.D.La.1974), specifically discredited in Davis v. United Companies Mtg. & Inv. of Gretna, Inc., 551 F.2d 971 (5th Cir. 1977) and Berryhill v. Rich Plan of Pensacola, 578 F.2d 1092 (5th Cir. 1978). See also Tarplain, supra. These last three cases look specifically to the language in 15 U.S.C. § 1640(a) which provides for civil penalties to be awarded for failure to disclose to any person any information required under that subchapter. As for the apparent unfairness of this double exposure, the courts have looked to the practical side of the matter, ■ noting that because there were two obligors on the note, the creditor had twice the security for the obligation. Mirabal v. G.M.A.C., 537 F.2d 871 (7th Cir. 1976).

The judgment in favor of plaintiff and against defendant Esther Selena Davis on the main demand is affirmed. There will further be judgment in favor of defendant Esther Selena Davis and against plaintiff awarding to said defendant a set-off of $876.02, and an attorney’s fee of $500.00. All costs of this appeal shall be paid by plaintiff. Costs in the court below shall be equally shared by the parties hereto.

AFFIRMED IN PART, AMENDED IN PART AND RENDERED.


text:
    The ROMAN CATHOLIC CHURCH OF the ARCHDIOCESE OF NEW ORLEANS; The Congregation of St. Julian Eymard Roman Catholic Church and Brothers of the Sacred Heart (Brother Martin High School) v. STATE of Louisiana, DEPARTMENT OF LABOR, OFFICE OF EMPLOYMENT SECURITY.
    No. 13541.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 1980.
    Rehearing Denied Sept. 4, 1980.

      Thomas A. Rayer, New Orleans, for plaintiffs-appellees The Roman Catholic Church of the Arch-Diocese of New Orleans, etc.
    William R. D’Armond, Baton Rouge, for intervenor-appellee St. James Episcopal Church.
    Hugh T. Ward, Shreveport, for interve-nor-appellee Trinity Heights Baptist Church.
    Willie D. Maynor, Baton Rouge, for defendant-appellant State of Louisiana, Dept, of Labor.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge:

This is a class action in which plaintiffs and intervenors, all of whom operate private non-profit parochial schools, seek a declaratory judgment exempting the employees of those schools from the provisions of the State Employment Security Law, R.S. 23:1471 et seq., and ask for reimbursement of amounts paid under protest pursuant thereto. Defendant is the State of Louisiana, Department of Labor, Office of Employment Security. From a judgment in favor of plaintiffs and intervenors, defendant has appealed.

The record shows, without contradiction, that the parties hereto, plaintiffs and inter-venors, Catholic and Protestant, operate private parochial schools, elementary and secondary, on a non-profit basis. All schools are owned and operated by religious non-profit corporations or by churches which are operated as religious non-profit corporations. In every case, the policies of these schools provide that they are operated primarily as instruments for the teaching of the Christian religion and the Christian way of life. In all cases, the teaching of secular subjects is considered to be of secondary importance.

Prior to 1977, R.S. 23:1472(12)F III provided in part, as follows:

“HI. For the purposes of subparagraphs (I) and (II) of this Paragraph the term ‘employment’ does not apply to service performed;
“a. In the employ of (i) a church or convention or association of churches, or (ii) an organization which is operated primarily for religious purposes and which is operated, supervised, controlled or principally supported by a church or convention or association of churches; or
“c. ... in the employ of a school which is not an institution of higher education; . . . ”

By Act 745 of 1977, subparagraph c, supra, was amended to read as follows:

“(c) Prior to January 1, 1978, in the employ of a school which is not an institution of higher education; after December 31,1977, in the employ of a governmental entity referred to in Subparagraph I of this Paragraph if such service is performed by an individual in the exercise of duties:
“(i) As an elected official;
“(ii) As a member of a legislative body, or a member of the judiciary, of this state or its political subdivisions.
“(Hi) As a member of the State National Guard or Air National Guard;
“(iv) As an employee serving on a temporary basis in case of fire, storm, snow, earthquake, flood, or similar emergency;
“(v) In a position which, under or pursuant to the laws of this state, is designated as (1) a major nontenured policy-making or advisory position, or (2) a policymaking or advisory position the performance of the duties of which ordinarily does not require more than eight hours per week.”

This amendment has the effect of eliminating the exemption of employees of an elementary or secondary school from the provisions of the act. The following allegations of the first petition filed herein are admitted by the defendant:

“11.
“Plaintiffs aver that the Congress of the United States amended the provisions of 26 USC 3309(b) by the adoption of Public Law 94-566 (90 Stat. 2667-2670) which had the effect of specifically eliminating the exclusion for services performed in the employ of non-profit elementary and secondary schools which had been previously included in the federal law as part of Section 3309(b) of the Internal Revenue Code of 1954.
“12.
“Plaintiffs aver that the Secretary of Labor of the United States has construed the amended Section 3309(b) as requiring state employment insurance coverage to be extended to employees of all private nonprofit elementary and secondary schools irrespective of the nature of the school or its affiliation or relationship to a religious denomination or church.
“13.
“Public Law 94-566 has been subsequently interpreted by the Secretary of Labor of the United States, Honorable Ray Marshall, as mandating the extension of employment insurance coverage to church-related schools, . . . ”

It is plaintiffs’ and intervenors’ position herein that, despite the repeal of former Subsection c of R.S. 23:1472(12) F III, the employees of their school systems remain exempt from the coverage of the Employment Security Law under the provisions of R.S. 23:1472(12) F III (a), supra. Alternatively, they argue that the repeal of Subsection c is an unconstitutional violation of plaintiffs’ rights under the First Amendment to the Constitution of the United States, and of Article I of the Louisiana Constitution of 1974.

The trial judge found the language of 23:1472(12) F III (a) to be clear and unambiguous, and “obviously means that the institutions in question are not subject to the tax.” He therefore did not reach the constitutional questions alternatively presented by plaintiffs.

We think the trial judge was correct. There is nothing in the record to contradict the testimony offered on behalf of all plaintiffs and intervenors that their schools are operated primarily for religious purposes, and the employees of the schools are employees of the churches. These employees, therefore, clearly fall within the exemption provided by R.S. 23:1472(12) F III (a), su pra. The fact that Subsection c has been amended so as to eliminate the exemption of employees of non-profit private elementary and secondary schools, cannot change the fact that, under the former law, employees of church related schools enjoyed a dual exemption. They now remain exempt.

Defendant urges that the intent of the legislature in repealing former Subsection c was to eliminate the exemption formerly enjoyed by the religiously associated elementary and secondary schools. Defendant points to Secretary of Labor Marshall’s interpretation of Public Law 94-566 as mandating such a result because the repeal was supposedly undertaken to conform the Louisiana employment security law to federal guidelines.

The rules of statutory interpretation in Louisiana are clear that a law which is free from all ambiguity must be given effect as written, and that legislative intent may only be considered when the law is subject to more than one reasonable interpretation. Hebbler v. New Orleans Fire Department, 310 So.2d 113 (La.1975).

If the legislature did indeed err in expressing its intention, it is not the function of the judicial branch to correct such an error where it creates no ambiguity. Rada v. Administrator, Div. of Emp. Sec., State, D. of L., 319 So.2d 460 (La.App. 4th Cir. 1975), writ denied 323 So.2d 128.

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

AFFIRMED.