text:
    Irvin C. MASSETT v. Donald P. LANDRY.
    No. 12512.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 21, 1981.
    Kenneth C. Fonte, New Orleans, for relator.
    Edward A. Kunz, New Orleans, for respondent.
    Before BOUTALL, GARRISON and BARRY, JJ.
   Irvin C. Massett has applied to us for supervisory writs following a judgment of the First City Court of the City of New Orleans setting aside a default judgment in favor of plaintiff and granting the defendant a new trial. The applicant complains that the motion for a new trial was filed too late and the trial court had no authority to grant the untimely motion.

The record shows that on January 6,1981, Massett filed an action for damages and payment of past due rent against Donald P. Landry in the First City Court for the City of New Orleans, and that Landry was served with personal service on January 12, 1981. Landry neither appeared nor answered and Massett obtained a default judgment on January 26, 1981. On January 30, 1981, Landry filed a motion for a new trial. After hearing, the trial judge granted the motion for a new trial rendering the following reasons for judgment.

“Judgment was rendered in this matter on January 26th, 1981. On the same day I received a telephone call from the defendant’s attorney Edward A. Kunz, who stated that the defendant had just dropped off the copy of the Citation and Petition that he had received on January 12th, 1981. Mr. Kunz had stated that his client, the defendant, had been trying to reach him since the notice was served on him. Mr. Kunz stated that he had been out of town during this period of time and was not available.
“The defendant, Donald P. Landry testified that he did in fact make a diligent effort to reach his attorney.
“The Court noted that between the time of service and judgment rendered there were two court holidays, and two weekends.
“While legally the plaintiff had a right to a default judgment, the Court feels that justice would be best served if a new trial were granted due to the circumstances.
“Therefore, it is the judgment of this Court that a new trial be granted.”

We note that under the facts as related, the trial judge in his discretion may have concluded that justice would be served if a new trial were granted. However the reasons for judgment show that on the date of the judgment, January 26, 1981, the attorney for defendant was informed of the judgment, and he did not file a motion for a new trial until January 30, which was one day too late. No reason is set forth by counsel for the defendant why he did not timely file his motion. Code of Civil Procedure Articles 4902 and 4919 provide for a three day delay in cases of this nature. It is the late filing of the motion for a new trial which is at issue here, not the issue of whether the judgment may have been set aside if the motion had been timely filed.

Once the time for filing a motion for a new trial had passed, the trial judge was powerless to grant a new trial. See for example Rodrigue v. Ziifle, 288 So.2d 630 (La.1974); Mitchell v. Louisiana Power & Light Company, 380 So.2d 743 (La.App. 4th Cir. 1980). Accordingly, we issue a peremptory writ of mandamus, ordering the trial judge to vacate his judgment of February 25, 1981 recalling the default judgment of January 26, 1981 and granting a new trial.

Writ of mandamus granted.


source: Caselaw Access Project

author: ELLIS, Judge.

license: Public Domain

text:
    Joseph H. BAYNARD v. The GUARDIAN LIFE INSURANCE COMPANY OF AMERICA.
    No. 14111.
    Court of Appeal of Louisiana, First Circuit.
    May 26, 1981.

      John Dale Powers, Baton Rouge, for plaintiff-appellant Joseph H. Baynard.
    Neil H. Mixon, Baton Rouge, for defendant-appellee The Guardian Life Ins. Co. of America.
    Before ELLIS, COLE and WATKINS, JJ.
   ELLIS, Judge.

This is a suit by Joseph H. Baynard against The Guardian Life Insurance Company of America, for damages arising out of the alleged wrongful termination of the district agent contract formerly existing between them.

The petition alleges that plaintiff and defendant entered into a district agent contract on April 1,1962, and that the contract was wrongfully terminated in 1976. It is further alleged that, after the contract was terminated, defendant interfered with plaintiff’s business in a number of respects, and, both before and after the termination of the contract, had made unauthorized charges against plaintiff’s commissions and had delayed paying commissions due. Plaintiff therefore asked for an accounting of all of his business with defendant from 1962 to the present time.

It is further alleged that defendant wrongfully discriminated against plaintiff because of his age, having terminated his contract because he was 65 years of age, when it was not defendant’s uniform practice to do so, causing him loss of commissions and overrides. Plaintiff further alleges that, as a result of defendant’s alleged improper conduct, he has suffered “mental anxiety, aggravation, frustration, and anger.” Plaintiff further alleges that various practices of defendant have caused some of his clients to cancel their insurance, some of their policies to lapse, and has caused strained business relationships with some of his clientele.

As a result of all of the above, plaintiff asks damages in the amount of $300,000.00 and for all such amounts as may have been wrongfully withheld from him by defendant.

Defendant’s answer essentially denied the allegations of the petition, and affirmatively alleged that, under the terms of their contract, either party could terminate the agreement at any time by notice to the other party; that it was the policy of the company to ask district agents to retire on reaching age 65; that plaintiff was so advised and elected to retire under one of defendant’s retirement plans; and that plaintiff began receiving retirement benefits on January 1,1977, and was continuing to receive them. Defendant denied all liability.

After a great deal of discovery, by interrogatories and admissions, defendant filed an exception of no cause of action, and, alternatively, a motion for summary judgment, asking dismissal of the suit as to the allegations of age discrimination and wrongful termination of the contract.

After a hearing, the motion for summary judgment was granted, and judgment was signed dismissing plaintiff’s causes of action for age discrimination and wrongful termination of the contract. Plaintiff has appealed.

Plaintiff first contends that the civil law provides a remedy for age discrimination apart from any special statutes on the subject. He points to the fact that Article I, Section 3 of the Constitution of 1974 provides:

“No person shall be denied the equal protection of the laws. No law shall discriminate against a person because of race or religious ideas, beliefs, or affiliations. No law shall arbitrarily, capriciously, or unreasonably discriminate against a person because of birth, age, sex, culture, physical condition, or political ideas or affiliations. Slavery and involuntary servitude are prohibited, except in the latter case as punishment for crime.”

Plaintiff argues that the constitution recognizes that age discrimination is a fault, and that, through Article 2315 of the Civil Code, redress for injury caused by that fault may be obtained. Of course, the constitutional provision above quoted prohibits discrimination by laws, and plaintiff can point to no law which discriminates against him. Plaintiff, however, argues that Article I, Section 3 establishes a state policy that age discrimination, from whatever source, is wrong, and that the flexible civil law system permits the recognition of a cause of action for age discrimination.

We cannot agree. For us to so hold would constitute an unwarranted intrusion into an area in which the legislature has seen fit to act, albeit too late to be of comfort to plaintiff. If the law were as plaintiff argues it to be, there would have been no necessity for legislative action.

Plaintiff further argues that the state and fedéral age discrimination statutes are applicable to this case.

The Louisiana age discrimination act, R.S. 23:971 et seq., was enacted in 1978. The federal age discrimination statute was amended in 1978 to include those between 65 and 69 years of age. Therefore, at the time of plaintiff’s termination, there was no law in effect protecting him against age discrimination. He claims, however, that these laws are remedial and should be retroactively applied.

Federal courts have declined to apply the age discrimination statute retroactively. Marshall v. Delaware River and Bay Authority, 471 F.Supp. 886 (Del.D.C.1979); Jensen v. Gulf Oil Refining & Marketing Co., 623 F.2d 406 (5th Cir. C.A.1980). We agree with their reasoning that it is important that “private employers be able to order their affairs to comport with current, reasonable interpretations of existing law.” The Louisiana legislation is substantive, conferring rights which did not exist before its enactment, and our civilian interpretive methodology does not permit its retroactive application. Ardoin v. Hartford Ace. & Indem. Co., 360 So.2d 1331 (La.1978). We therefore hold that the law provided no basis for an age discrimination action by plaintiff.

The agreement entered into by the parties hereto provides that it is for an indefinite term, but that either party may terminate it at any time, by giving notice in writing to the other party. However, plaintiff’s affidavit, filed in opposition to the motion for summary judgment, states that when he signed the contract, he was told by the representative of Guardian that “one of the best things about the contract was that it was for life.” Plaintiff contends that the above statement constitutes an oral amendment to the contract, which prevents its termination by Guardian under the written provisions thereof above referred to. The contract itself contains a provision to the effect that it is the entire agreement, and that any amendment must be in writing and signed by both parties. Guardian also contends that a contract for life is invalid under Louisianá law, and is legally terminable at any time.

It is settled law that a contract for life and a contract for an indefinite period are terminable at the will of either party at any time. Article 167, 2746, Civil Code; Pechon v. National Corporation Service, 234 La. 397, 100 So.2d 213 (1958); Hodges v. Decoteau, 314 So.2d 500 (La.App. 1st Cir. 1975). It appears that, even if the contract were expressly for life, it could still be terminated at any time by Guardian, as a matter of law. The fact that plaintiff contends that he was told the contract was for life is therefore immaterial, since the legal effect of such agreement is no different from the express terms of the contract.

We find no dispute as to the material facts of the case, and that Guardian is entitled to summary judgment as to the foregoing issues as a matter of law. The judgment appealed from is therefore affirmed, at plaintiff’s cost.

AFFIRMED.


author: WATKINS, Judge.

text:
    Tommy BOURGEOIS v. Wayne Dewey KIRKLAND.
    No. 14112.
    Court of Appeal of Louisiana, First Circuit.
    May 26, 1981.
    Charles S. McCowan, Jr., Baton Rouge, for plaintiff-appellee Tommy Bourgeois.
    A. Foster Sanders, III, and William D. Grimley, Baton Rouge, for defendant-appellant Wayne Dewey Kirkland.

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

This is an action for extras added to a building contract brought by Tommy Bourgeois, a builder, against Wayne Dewey Kirkland, the person for whom the house in question was built. Kirkland reconvened seeking damages for defective construction. The trial court awarded plaintiff Bourgeois $6,794.41 on the extras added to the building contract, and Kirkland, plaintiff in re-convention, $950.00 as damages under the reeonventional demand. We affirm in all respects.

Kirkland and Bourgeois entered into a verbal agreement under which Bourgeois would build a house for Kirkland on a tract owned by Kirkland in East Baton Rouge Parish. The verbal agreement was that the house would be built on a cost plus basis, with 5% or 10% profit (the testimony is uncertain), with the total amount of costs and profit not to exceed $38,000.00. Kirkland was to borrow the money to build the house! It was agreed that Kirkland would borrow $38,000.00. Bourgeois estimated that the total cost plus amount would run to about $35,000.00, and Kirkland planned to spend the balance of approximately $3,000.00 on furniture.

Kirkland and Bourgeois entered into a written building contract dated June 8, 1977, which set forth a contract price for building the house of $38,000.00. The instrument recited that the house was to be built according to plans and specifications. Both the building contract and plans and specifications were introduced in evidence at the trial. In the course of construction, Kirkland indicated that he wanted certain rather expensive additions to and departures from the plans and specifications; notably, he wanted the fireplace, which had been built according to plans and specifications and rejected by the city-parish building inspector, moved; he wanted a paved driveway; he wanted the exterior in part sheathed in brick; he wanted new appliances; he wanted a back porch, and he wanted a larger central air conditioner. These additions were made, and the house was accepted in writing by Kirkland upon completion of construction.. Bourgeois was paid $38,000.00 for the construction. Kirkland moved in. The trial was conducted in part at the house, and the Kirklands appear to have been living in it at the time of the trial. Kirkland complains that the house had certain defects in construction, involving principally the construction of the fireplace, hearth, trim, and roof (which Kirkland admits did not leak).

Kirkland’s main contention on appeal is that Bourgeois did not prove the cost plus items of the principal contract, but attempted to prove only the extras, assuming that he was entitled to the sum of $38,-000.00 which he had received under the principal contract. We find Bourgeois’ method of presentation of his case was proper, and that the extras should have been over and above the $38,000.00 principal contract sum, and not wholly or partly included in that amount.

Kirkland and Bourgeois entered into a written building contract according to plans and specifications, the contract sum being $38,000.00. The extras were departures from the plans and specifications. It is true there was a anterior verbal agreement to seek to hold the construction sum, on a cost plus basis, below $38,000.00. However, the parties thereafter entered into a written building contract. A written contract evidences the complete understanding of the parties and supersedes prior verbal agreements leading up the perfection of the written contract. LSA-C.C. art. 2276; Piliawsky v. Colar, 112 So.2d 730 (La.App.Orl.1959). Thus, it was unnecessary to prove the sum of $38,000.00 agreed upon in the written contract, and it was necessary only to prove the extras.

As to the extras, there is little serious controversy that they represent additions to the original contract and that Kirkland did request them. These sums were sufficiently proven, we are convinced, after full review of the record. We, therefore, find that the sums for the extras were properly awarded by the trial court in the full sum of $6,794.41. Likewise, the sum awarded on the reconventional demand, we are convinced, after full review of the record, did not represent an abuse of the trial court’s “much discretion” in awarding damages, being neither unduly large nor greatly insufficient. LSA-C.C. art. 1934.

Kirkland seeks attorney’s fees. First, we might note that the major portion of counsel’s time, who was employed by Kirkland, was spent in unsuccessfully seeking to disprove the principal demand and in urging portions of the reconventional demand that were denied. However, to address the question squarely, we see that Kirkland bases his claim for attorney’s fees on the theory that the building contract was a sale, and that the reconventional demand was an action in redhibition, and the builder having been in legal bad faith, attorney’s fees are properly awardable. However, the appellate courts of other circuits have specifically held that attorney’s fees are not awardable in an action for defects in construction under a building contract, as a building contract is not a contract of sale. Stream v. LeJeune, 352 So.2d 714 (La.App. 3d Cir. 1977); Montalbano v. Berner's, Inc., 365 So.2d 923 (La.App. 4th Cir. 1978). We find this analysis to be correct, and follow it. Accordingly, we affirm the action of the trial court in denying attorney’s fees.

The judgment of the trial court is affirmed, costs in the trial court to be paid one-seventh Qh) by plaintiff-appellee and six-sevenths (%) by defendant-appellant, all costs of appeal to be paid by appellant, Wayne Dewey Kirkland.

AFFIRMED.


author: COVINGTON, Judge.

text:
    Henry E. THOMASSON et ux. v. A. K. DURNIN CHRYSLER-PLYMOUTH, INC., et al.
    No. 14167.
    Court of Appeal of Louisiana, First Circuit.
    May 26, 1981.

      John W. Degravelles, Baton Rouge, for Henry E. Thomasson and Peggy Jo. Thom-asson.
    Carey J. Guglielmo, Baton Rouge, for Chrysler Motors Corporation.
    Robert W. Smith, Baton Rouge, for A. K. Durnin Chrysler-Plymouth, Inc., and Fireman’s Fund American Insurance Companies.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   COVINGTON, Judge.

This is a suit by a husband and wife, Henry E. Thomasson and Mrs. Peggy Jo Thomasson, for personal injuries and damages resulting from a one car accident caused by products liability in defective design and construction of the manufacturer, Chrysler Motors Corporation, and the negligence in failing to inspect and repair the automobile of the dealer, A. K. Durnin Chrysler-Plymouth, Inc., covered by its liability insurer, Fireman’s Fund American Insurance Companies, who were named as defendants. All parties have appealed the judgment of the trial court. We have carefully read the record, and find the written reasons of the trial judge, a copy of which is attached, correctly dispose of the factual and legal issues presented by the instant case. There is a reasonable factual basis for the finding of the trier of fact; and we have determined that the record establishes that the finding is not manifestly erroneous.

For the reasons expressed by the trial judge, which we adopt as our own, the judgment appealed is affirmed; the costs to be borne by the defendants.

AFFIRMED.

WRITTEN REASONS FOR JUDGMENT

Plaintiffs, Henry and Peggy Thomasson, were involved in a one car automobile accident in August, 1975, when the front lower suspension of their 1974 Plymouth Fury collapsed, causing Mr. Thomasson to lose control of the vehicle. Plaintiffs bring this suit for damages allegedly caused by the accident against Chrysler Corporation, the manufacturer of the automobile, A. K. Dur-nin Chrysler-Plymouth, Inc., the dealer who sold the automobile to them, and Fireman’s Fund American Insurance Companies, the insurer of A. K. Durnin. Defendants deny liability, and alternatively plead the contributory negligence and assumption of the risk of Mr. and Mrs. Thomasson. Defendants also vigorously deny that certain mental and physical complaints of Mrs. Thomas-son are causally related to the accident. A. K. Durnin and Fireman’s Fund seek indemnification from Chrysler in a third party demand for any damages they should be condemned to pay to the plaintiffs.

The 1974 Plymouth Fury was originally purchased by the Thomassons from A. K. Durnin in December of 1974, and was one of a group of vehicles manufactured by Chrysler which contained a defect in the lower control arm assembly. A recall campaign was initiated by Chrysler in January of 1974 after it learned of the defect and its potential danger. As a result of the campaign, A. K. Durnin received notice of the category of vehicles included in the recall, 1.e., 1974 model year C body passenger cars shipped prior to January 4, 1974 and manufactured during a specific time frame, although the particular vehicle sold to the Thomassons was not included in computer print-out sheets accompanying the correspondence. Relying on those print-out sheets which listed vehicles by serial number, A. K. Durnin made no effort to locate vehicles not listed therein, or to screen vehicles in the affected category when brought in for repairs or servicing.

The Thomassons had experienced steering related difficulties on several occasions, which they brought to the attention of A. K. Durnin’s employees when the auto was brought in for repairs. The defect which caused the accident was not discovered by A. K. Durnin, nor were the plaintiffs ever notified by either A. K. Durnin or Chrysler, prior to the accident, of the dangerous condition of their automobile.

LIABILITY OF CHRYSLER

The liability of a manufacturer under Louisiana law does not rest on proof of negligent acts or omissions when the harm caused is the result of a manufacturing or design defect. Plaintiffs must simply prove that a product is unreasonably dangerous to normal use. Chappuis v. Sears, Roebuck & Company, 358 So.2d 926, (La. 1978). In this case, it is clear that the defective lower control arm assembly, which could break in service and cause loss of steering, was unreasonably dangerous to normal use. The commencement of the recall campaign by Chrysler could not absolve it of its responsibility, nor could it operate to pass on the sole responsibility to its dealer, Therefore, Chrysler is liable for any damages which were caused by its defective product. The Court finds no evidence that plaintiffs assumed the particular risk or even knew of its existence prior to the accident. Although contributory negligence is not a defense to a products liability action, the Court further notes that there is no evidence of any negligence on the part of plaintiffs.

LIABILITY OF A. K. DURNIN

The duty of a seller of a dangerously defective product is less stringent than that of a manufacturer. Ordinarily, he owes only a duty of reasonable inspection and is not required to search for latent, nonappar-ent defects. Hunt v. Ford Motor Company, 341 So.2d 614 (La.App.1977). However, under certain peculiar circumstances, that duty may be more exacting. For example, in Ford, supra, at page 619 the Court observed:

“... Where a manufacturing defect causes an accident and the dealer has prior notice of difficulties relating to the defect with an opportunity to discover and correct the defect, in order to avoid liability for damages occasioned by the defect the dealer has the burden of showing he made reasonable and adequate efforts to discover the source of the difficulties and that the defect could not be discovered in spite of such efforts.”

In this case, the dealer was apprised of problems related to the steering of the vehicle by the Thomassons, which put them on notice that that particular vehicle had difficulties. Although the defect in the vehicle could not, according to expert testimony, have been discovered without disassembly of the defective parts, A. K. Durnin had been put on notice by Chrysler’s recall campaign literature that the particular type of vehicle sold to the Thomassons was suspect. A simple inspection of the date plate on the inside door frame would have shown the date of manufacture. The dealer could thereby easily ascertain that this vehicle was the subject of the recall, even without specific notice of the serial number. Furthermore, A. K. Durnin was aware, or should have been aware, of the magnitude of the danger created by the defective lower control arm assembly.

The combination of those factors; the notice from the manufacturer, the specific complaints from the owner, the ease of discovery, the opportunity to correct and the magnitude of the risk, should have incited A. K. Durnin to proceed beyond a routine inspection or repair in the case of the Thomasson vehicle. Under those circumstances, it was not sufficient for A. K. Durnin to simply follow the procedure outlined in the recall literature, especially when the accompanying lists of vehicles were known by them to have been incomplete in the past. Hence, because of its negligent breach of duty, A. K. Durnin is solidarily liable with Chrysler for the damages caused by the failure of the front suspension lower control arms.

THIRD PARTY DEMAND OF A. K. DURNIN

Defendant, A. K. Durnin, has filed a third party demand against Chrysler, seeking total indemnification for any amounts it should be cast in judgment to the plaintiffs. However, A. K. Durnin was found liable, not by virtue of the manufacturing defect for which Chrysler was responsible, but by virtue of independent acts of negligence which contributed to the accident. Therefore, third party plaintiffs own negligence precludes any right to indemnification. Trahan v. Highlands Insurance Co., 343 So.2d 1163, (La.App.1977).

DAMAGES

There is little dispute concerning the relatively minor and direct physical injuries the plaintiffs sustained as a result of the accident. Mr. Thomasson suffered a muscle and ligamentous strain to the neck region, for which he will be awarded $500.00. Although a claim was made for lost wages attributable to those injuries, this was not proven by a preponderance of the evidence. Mrs. Thomasson’s physical injuries which were concededly caused by the accident consisted of a muscle and ligamentous strain to the cervical spine and injuries to the wrist, for which she will be awarded $2000.00.

However, it is not those physical injuries which constituted the most serious bone of contention among the parties to this lawsuit. The chief area of dispute and the topic which produced the most contradictory testimony involved plaintiffs’ allegation that the accident activated a pre-existing psychological disorder in Mrs. Thomasson, and rendered her totally disabled from any type of employment.

Mrs. Thomasson had an abundance of physical problems before the accident which may or may not have been psychological in origin. Primary among those ailments were chronic vomiting, diarrhea and nausea. The evidence concerning whether her medical problems were enhanced because of anything directly related to the accident was conflicting and contradictory. The Court is of the opinion that the plaintiff did not prove by a preponderance of the evidence that her purely physiological problems were caused by the accident, other than the ligamentous strain and wrist injury. The only thing clear from the evidence is that Mrs. Thomasson had many problems and difficulties prior to the accident and that she will continue to have them.

A resolution of the purely physiological problems and their causal connection to the accident does not, however, resolve the psychological difficulties experienced by Mrs. Thomasson. The alleged phobia of driving an automobile was described by the doctors who testified as being an unreasonable fear. The record clearly shows that plaintiff had psychological problems prior to the accident. The Court finds that the plaintiff had proved as a fact that those psychological problems were aggravated by the accident, however unreasonable that aggravation would be for a person of normal mental health, given the minor nature of the accident.

No expert gave a good reason why such a slight accident should cause such a major mental problem. That the reaction was unreasonable is the very definition of her problem. However, the defective 1974 Plymouth Fury was carrying a very mentally fragile passenger when the accident occurred. And although it would not have affected a normal person, such as Mr. Thomasson, who was more directly involved as the driver, it did have a lasting, adverse psychological effect on Mrs. Thomasson. The Court further concludes that this enhanced psychological problem did diminish her capacity for employment. The Court does not accept the astronomical figures, which are purely speculative and theoretical, presented by plaintiffs’ expert economist. They were based on assumptions about Mrs. Thomasson’s past earning record which were not supported by the facts in the record, and more importantly, they did not take into consideration the greatly diminished capacity for employment which Mrs. Thomasson had and will continue to have because of her other medical problems. Therefore, the Court believes an award should be made for lost wages and for loss of future wages.

The enhanced mental disorders resulting in the phobia, which brings about a loss of wages, also brings about damages for an increased amount of mental anguish. The medical testimony indicates that the physical problems of nausea, vomiting and diarrhea are manifestations of the mental disorders. These symptoms clearly existed prior to the accident, and on balance, the best view of the evidence seems to be that they were of both mental and’ physiological origin. However esoteric and gossamer these notions may be for lawyers and judges, they nevertheless constitute real suffering for a person in Mrs. Thomasson’s condition. The Court believes an award of $17,500.00 is appropriate for Mrs. Thomas-son’s mental anguish, suffering, related lost wages and future lost wages.

Mrs. Thomasson will require future treatment by a psychologist, Dr. Silva, for her aggravated mental problems. The Court believes $1000.00 is sufficient to cover those anticipated costs to Mr. Thomasson, as head and master of the community of acquets and gains. In addition, Mr. Thomasson will receive an award for certain special expenses he incurred as head and master of the community, which were reasonably related to the accident. He is entitled to be reimbursed $237.59 for damages to the automobile, $34.46 for transportation expenses, $85.29 for room and board and for all medical expenses as shown by the bills for services introduced into the record at trial.

Numerous expert witnesses testified at trial and through deposition in this matter. Their expert witness fees are set as follows:

A. J. McPhate-$100.00

Jan Dugger-$100.00

Dr. John Chisholm-$100.00

Carol Abby-$100.00

Darrel Wheat, psychological therapist-$100.00

Dr. Curtis Steele-$150.00

Dr. Frank Silva-$150.00

Dr. James Johnson-$300.00.

Therefore, judgment is rendered in favor of plaintiff, Peggy Thomasson, and against defendants, A. K. Durnin ChrysIer-PIym-outh, Inc., Chrysler Corporation and Fireman’s Fund American Insurance Companies, in solido, in the amount of $19,500.00; in favor of plaintiff, Henry E. Thomasson, individually, and against defendants, A. K. Durnin ChrysIer-PIymouth, Inc., Chrysler Corporation and Fireman’s Fund American Insurance Companies, in solido, in the amount of $500.00; in favor of plaintiff, Henry E. Thomasson, as head and master of the community of acquets and gains, and against defendants, A. K. Durnin ChrysIer-PIymouth, Inc., Chrysler Corporation and Fireman’s Fund American Insurance Companies, in solido, in the amount of $1357.35, plus all medical expenses as shown by bills for services introduced into the record at trial; all of the above sums to bear legal interest from the date of judicial demand until paid.

Further judgment is rendered in favor of third party defendants, Chrysler Corporation and Fireman’s Fund Insurance Companies, and against third party plaintiff, A. K. Durnin ChrysIer-PIymouth, Inc., dismissing the third party demand.

Further judgment is rendered setting the expert witness fees of A. J. McPhate, Jan Dugger, Dr. John Chisholm, Carol Abby and Darrel Wheat at $100.00; of Dr. Curtis Steele and Dr. Frank Silva at $150.00, and of Dr. James Johnson at $300.00.

Judgment will be signed accordingly.

      . Defective front suspension lower control arm assembly on 1974 Plymouth Fury automobile.

      . Reck v. Stevens, 373 So.2d 498 (La. 1979); Arceneaux v. Domingue, 365 So.2d 1330 (La. 1978).

      . As discussed above, the affirmative defenses of assumption of the risk and contributory negligence are not well-founded.


author: EDWARDS, Judge.

text:
    Mays Irwin MORRIS v. Janet Tucker MORRIS.
    No. 14184.
    Court of Appeal of Louisiana, First Circuit.
    May 26, 1981.

      A. Clay Pierce, Jr., Baton Rouge, Joel B. Dickinson, Baton Rouge, for plaintiff-appellant Mays Irwin Morris.
    Bart Eaton, Teddy W. Airhart, Jr., Baton Rouge, for defendant-appellee Janet Tucker Morris.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

This appeal involves a child custody proceeding.

Mays Irwin Morris and Janet Tucker Morris were separated on March 25, 1977, by judgment of the family court. Janet Morris was awarded custody of the minor child, Kristie, then four years old. In January of 1979, Janet Morris was granted a divorce from her husband, which judgment continued custody of Kristie in the mother.

On May 9, 1980, Mays Morris filed a rule for a change of custody. After a hearing at which Janet Morris made no appearance, the court rendered judgment on May 22 awarding the father custody of Kristie. However, due to possibly defective service of the rule upon Janet Morris, the May 22 judgment was vacated. A new notice of the rule for change of custody was issued and Mays Morris was granted provisional custody of Kristie.

Following trial of the rule, judgment was rendered continuing custody in the mother. From this ruling, Mays Morris appeals, contending that the family court erred by failing to consider the best interest of the child and the mother’s criminal record in its refusal to change custody of the minor to the father.

The main argument of Mays Morris in seeking a change of custody concerns the criminal record of his ex-wife. In March of 1978, prior to the divorce, Janet Morris pled guilty to two counts of embezzlement of funds totaling $200 from then her employer. Sentence was suspended, and she was placed on probation for a period of three years.

More recently, in April of 1980, a search pursuant to a warrant revealed the presence of illegal drugs in her apartment. She claimed that she was not aware of the presence of the drugs, which belonged to an ex-roommate, with whom she no longer socialized. Apparently, no charges were brought against her for this incident.

Mays Morris also relies heavily upon what he contends is a drug-related incident in April of 1980, when his ex-wife lost consciousness on a bus and was taken to a hospital. Janet Morris explained, however, that at the time she had a broken arm and a broken leg and was taking pain medication prescribed by her doctor.

The mother of Janet Morris testified that she has never seen any illegal drugs in her daughter’s apartment and has never seen her daughter use illegal drugs. Although she admittedly once tried to have her daughter committed, she stated that the reason therefore was disapproval of her daughter’s friends.

The record reveals that Janet Morris and Kristie lived in their own apartment or with various relatives since the separation decree. Janet worked as a secretary until about three months prior to the hearing. Her employment was terminated because she had a broken arm and leg and could no longer fulfill her duties as a secretary. Since that time, she has collected unemployment compensation benefits and is presently seeking work as a union apprentice. Her uncle testified that he is helping her obtain employment and that the prospects are promising.

Several relatives and her probation officer testified that Janet Morris provided as good a home for Kristie as she could under the economic circumstances that she faced. She presently lives with her aunt and uncle, in whose home Kristie also is welcome.

Mays Morris’ employment record is erratic and unsteady. At the time of hearing, he had been employed as an insurance salesman since April of 1980. He indicated that the job would be permanent.

Mays Morris admitted that in the past he daily smoked marijuana. However, he professed to have discontinued its use. His present wife testified that she had never seen her husband smoke marijuana and was not aware that he had ever used the drug.

Janet Morris testified that her ex-husband had refused in the past to help with Kristie’s medical expenses and to care for her when she was ill. Specific reference was made to the child’s need for speech therapy following a tonsilectomy, which was necessitated by continual ear problems for several winters.

LSA-C.C. Art. 157 states in pertinent part:

“In all cases of separation and divorce, and changes of custody after an original award, permanent custody of the child or children shall be granted to the husband or the wife, in accordance with the best interest of the child or children, without any preference being given on the basis of the sex of the parent.”

After carefully reviewing the record, we find that the family court did not abuse its discretion in awarding custody of the minor child to the mother. Hence, the judgment of the family court is affirmed. All costs of this appeal are to be paid by appellant, Mays Morris.

AFFIRMED.


author: PONDER, Judge.

text:
    DELTA SCHOOL OF BUSINESS, BATON ROUGE, INC. v. Cheryl D. SHROPSHIRE.
    No. 14190.
    Court of Appeal of Louisiana, First Circuit.
    May 26, 1981.

      Earl Reynolds, Baton Rouge, for plaintiff-appellant.
    Benn Hamilton, Baton Rouge, for defendant-appellee.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

Plaintiff appealed from the trial court’s dismissal of its suit against defendant on a promissory note.

The issues are: burden of proof, expansion of the pleadings, damages, quantum meruit and denial of a new trial.

We affirm.

Plaintiff, a business school, recruited defendant as a student. During an interview, plaintiff’s admissions representative informed defendant that the school would assist her in finding employment upon graduation. Plaintiff’s catalogue, which was given to defendant, also advertised a placement service.

Relying on these representations, defendant enrolled in plaintiff’s school. She signed a $730.00 promissory note in favor of plaintiff to finance part of the $895.00 tuition. After graduation, defendant experienced difficulty paying the loan. She requested aid of plaintiff’s loan officer who directed her to a possible job opening and to an employment agency. When defendant subsequently defaulted on the loan, leaving a balance of $542.44, plaintiff filed suit. The court, upon determining that plaintiff’s failure to provide adequate placement assistance amounted to a failure of consideration, invalidated the contract and dismissed plaintiff’s suit.

Plaintiff initially complains that defendant has failed to prove the elements of fraud necessary to vitiate a contract. Plaintiff’s complaint is misdirected. The oral reasons for judgment reveal the trial court invalidated the contract for failure of consideration, rather than error based on fraud.

Addressing the defense of failure of consideration, plaintiff next argues defendant did not prove she would not have signed the note had the representations about placement not been made. LSA-C.C. Arts. 1824, 1825, and 1826. We find no error in the court’s determination that plaintiff’s promise of job assistance was a principal consideration in defendant’s decision to enroll in the school. We further find plaintiff’s recruiting practices and cat-alogue advertising raise a presumption of its knowledge of said motive.

Plaintiff next contends the court erred in considering the defense of non-performance as it was not alleged in defendant’s answer. We believe paragraphs five and six of defendant’s answer gave plaintiff fair notice of her intent to put at issue non-performance of the contract. LSA-C. C.P. Art. 854; Cox v. W. M. Heroman & Co., Inc., 298 So.2d 848 (La.1974).

Plaintiff next claims the court erred in placing the burden on it to prove compliance with the contract. Citing Bohn Ford, Inc. v. Lanza, 347 So.2d 935 (La.App. 4th Cir. 1977), plaintiff argues one who alleges non-performance of the contract has the burden to plead and prove it.

In his oral reasons for judgment, the court stated that defendant’s testimony that plaintiff had not complied with the contract placed an obligation on plaintiff to come forward with evidence proving compliance. While this may be an incorrect statement of the burden of proof for nonperformance of a contract, we find the error harmless. Both parties testified defendant was assured placement assistance upon graduation. Plaintiff’s admission’s director admitted placement assistance was a major inducement to enrollment. Defendant’s un-contradicted testimony was that upon graduation she received no assistance in finding work. It was only after she was unable to pay her student loan that plaintiff’s loan officer on his own volition directed her to a possible job and to an employment agency. We find plaintiff has met the burden of proving plaintiff’s non-compliance with the contract.

Plaintiff next argues defendant failed to prove her damages and urges this court to make an award in quantum meruit. Plaintiff misinterprets the judgment of the trial court. The court invalidated the contract between plaintiff and defendant for lack of consideration. Its failure to order plaintiff to return the $352.56 already paid by defendant on the contract amounts to an award in plaintiff’s favor of that amount in quantum meruit for services rendered. LSA-C.C. Art. 2294; McMorris v. Pepperdene, 292 So.2d 892 (La.App. 1st Cir. 1974), writ denied, 294 So.2d 840 (1974).

Plaintiff last complains the court erred in denying its motion for a new trial. Plaintiff’s motion for a new trial included essentially the same issues raised on appeal. We find no error in the court’s denial of that motion.

For the above reasons, the judgment of the trial court is affirmed at appellant’s costs.

AFFIRMED.

      . LSA-C.C. Art. 1824:
      “The reality of the cause is a kind of precedent condition to the contract, without which the consent would not have been given, because the motive being that which determines the will, if there be no such cause where one was supposed to exist, or if it be falsely represented, there can be no valid consent.”
      LSA-C.C. Art. 1825:
      “The error in the cause of a contract to have the effect of invalidating it, must be on the principal cause, when there are several; this principal cause is called the motive, and means that consideration without which the contract would not have been made.”
      LSA-C.C. Art. 1826:
      “No error in the motive can invalidate a contract, unless the other party was apprised that it was the principal cause of the agreement, or unless from the nature of the transaction it must be presumed that he knew it.”

      .
      “5."
      Defendant says further, however, that petitioner has been guilty of deceptive Trade Practices, in that petitioner through artifice, deception and misrepresentation caused defendant to enter into a contractual relationship based on defendant’s reliance on petitioner’s representation that petitioner would aid and assist defendant in obtaining employment upon completion of petitioner’s educational curriculum.
      6.
      Defendant says further that petitioner has never assisted in obtaining employment, has never attempted to assist her in obtaining employment and has never intended to assist her in obtaining any employment.”


text:
    Rose BEDFORD, Individually and on Behalf of Her Minor Son, Tim Bedford v. Francis T. CAZAYOUX, Individually and on Behalf of His Minor Son, Mike Cazayoux and United Services Automobile Association.
    No. 14193.
    Court of Appeal of Louisiana, First Circuit.
    May 26, 1981.

      Daniel S. Foley and Wilfred Boudreaux, New Orleans, for plaintiff-appellant.
    Timothy G. Schafer, New Orleans, for defendant-appellee.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

On December 1, 1977, in the city of Cov-ington, Tim Bedford, aged thirteen, was struck and injured by a van driven by Mike Cazayoux, a minor. The accident occurred on North Columbia Street midway between the intersections of North Madison and North Jefferson streets.

Rose Bedford, the mother of, and subsequently confirmed as the natural tutrix of, Tim Bedford, brought suit on behalf of herself and her son Tim. Named defendants were Francis T. Cazayoux, sued individually and on behalf of his minor son, Mike Cazayoux, and United Service Automobile Association. Plaintiffs sought $1,206,000 plus legal interest and all costs.

Trial was had by jury. Following trial, the jury, by an unanimous vote of twelve to nothing, returned its verdict. Michael Ca-zayoux was found to have been negligent but his negligence was found not to have been a cause in fact of the accident. The jury verdict was made the judgment of the trial court and plaintiff’s suit was dismissed with prejudice at her costs.

Plaintiff appeals urging 1) that the jury was wrongly charged and 2) that the verdict was contrary to the law and evidence.

A meaningful jury trial includes proper instructions by the court. Adequate instructions are those instructions which fairly and reasonably point up the issues presented by the pleadings and evidence and which provide correct principles of law for the jury’s application thereto. James v. State Farm Mutual Automobile Insurance Company, 388 So.2d 389 (La.App. 1st Cir. 1980), writ denied 393 So.2d 741 (1980); Hanks v. Drs. Ranson, Swan & Burch, Ltd., 359 So.2d 1089 (La.App. 3rd Cir. 1978), writ denied 360 So.2d 1178 (1978). In this case, we cannot say that the jury instructions were such as would mislead the jury as to the law or the application of the law to the facts. Far from it, the instructions given demonstrate the trial court’s proper concern for pedestrians, including negligent pedestrians.

A review of the record indicates that, with darkness near and with traffic heavy, young Bedford, attempting to cross North Columbia Street in the middle of a block, waited until several cars heading north had passed, whereupon he dashed across the two-lane roadway and was struck by the Cazayoux vehicle headed south. Mike Cazayoux had not yet turned on the lights of his vehicle.

At trial, Bedford testified that he looked in both directions before darting out. Extensive testimony was introduced as to the lighting conditions. Mike Cazayoux testified that Bedford suddenly appeared at the middle of North Columbia Street only fifteen feet from the van; that Bedford darted right in front of the van, that Bedford never broke stride or even reacted to the van; that he, Cazayoux, tried to brake and swerved to the right in an unsuccessful attempt to avoid striking Bedford; and that the van ended up in a ditch to the right.

Apparently the jury determined that, despite Cazayoux’s failure to use his lights, Bedford either failed to look or was most inobservant as to traffic conditions just pri- or to his ill-considered dash and that Cazay-oux did everything possible to avoid the accident. We find that the record contains more than enough evidence to support the jury verdict. Essentially, Tim Bedford, and not Mike Cazayoux, caused this accident.

For the foregoing reasons, the judgment appealed from is affirmed. All costs, both trial and appellate, are to be paid by Rose Bedford.

AFFIRMED.

      . Included in the instructions given was the following:
      “Since the operator of a motor vehicle is aware that he could meet many emergencies in which pedestrians will not always act prudently and will sometimes be found in perilous circumstances or situations, he has the legal duty to keep the roads safe even for those who are negligently caught off their guard. So, where injury results to such a pedestrian the motorist should bear responsibility for the injury if the motorist with the exercise of reasonable care under the circumstances saw or should have seen the impending peril and had, at that moment, the opportunity to avoid it. The motorist in this situation cannot escape legal responsibility for the injury to the pedestrian by showing that the pedestrian was also negligent.”


author: COLE, Judge.

text:
    Florentine DITCH et al. v. Fanny Katz FINKELSTEIN et al.
    No. 14200.
    Court of Appeal of Louisiana, First Circuit.
    May 26, 1981.

      Edward J. Milligan, Jr., Lafayette, for plaintiffs.
    Jack C. Caldwell, Franklin, for defendants.
    Before ELLIS, COLE and WATKINS, JJ.
   COLE, Judge.

The main issue presented is whether or not the trial court erred in sustaining the objection of res judicata. Because we find the court acted properly under the circumstances, we affirm.

The facts giving rise to this litigation are as follows: Ozeme Ditch died September 16, 1920, and his wife Fanny died January 4, 1926. They were survived by five children and one grandchild. On February 26, 1927, these heirs (Willard Ditch, Wallace Ditch, Florence Ditch Chargois, Agnes Ditch Ar-ceneaux, John M. Ditch and Irma Ditch Shelburne) entered into an “Act of Partition, Compromise and Settlement.” The act was recorded in the conveyance and mortgage records of St. Mary Parish and described some fifteen separate tracts of land formerly owned by Ozeme and Fanny Ditch. The purpose of the act was reflected by the following language:

“Said appearers declared to me, Notary, that desiring to carry out the expressed wishes of their deceased parents, and grandparents, the said Ozeme Ditch and Fanny Ray Ditch, and in order to compromise and settle any and all differences, claims, or demands which they have, or may have against one another by virtue of being an heir of said Ozeme Ditch and of said Fanny Ray Ditch, that they hereby fully ratify and confirm any and all conveyances, donations, inter vi-vos or causa mortis, or other transactions made to, or in favor of, any of them by said Ozeme Ditch, and said Fanny Ray Ditch, or either, recognizing and quieting the title and possession of such appearer, or appearers, in and to the property, or properties, so conveyed, donated, or otherwise transferred to him, her, or them; do hereby give full acquittance to each other of every kind and species of claim, and demand, which they, or any of them has, or may have against the others, or any of them, by virtue of being an heir of said Ozeme Ditch and of Fanny Ray Ditch, deceased; and hereby agree upon, and make the following division and partition between them of the property here-inabove described, now owned by them in indivisión, to wit:” (Emphasis added.)

The parties to the agreement then divided all of the property among the heirs. Willard Ditch was granted certain tracts, one of which is the subject of this litigation. The pertinent property was described as follows:

“A tract of land lying partly within the corporate limits of Morgan City, and partly adjoining the City limits, in the Parish of St. Mary, State of Louisiana. Bounded on the north, northeast and east by lands sold to A. F. Storm, Et Als. by 0. Ditch; on the south in part by the corporate limits of the City of Morgan City, and in part by property owned by W. 0. Ditch, Et Als., and on the west by a line drawn parallel to and 125 feet east of the east line of Eighth Street, in the City of Morgan City, and of the extension of said Street to the property of A. F. Storm, Et. Als., the northern boundary of the tract herein described.”

On April 23, 1928, a judgment of possession was entered, granting to each heir an undivided one-sixth interest in the property belonging to the succession of Ozeme and Fanny Ditch. Attached to the judgment of possession was a descriptive list which described the same property which had previously been listed in the act of compromise.

Sometime prior to 1946 Willard Ditch died and left his property to his wife Cloth-ilde, and to his daughter. The daughter later sold her interest to Clothilde who in turn sold a portion of the above described property to Milton Levy, Louis Finkelstein and Joseph Finkelstein.

On October 3, 1979, the heirs of Ozeme and Fanny Ditch filed suit against the Levy and Finkelstein heirs. They alleged Clothilde Ditch had conveyed Willard Ditch’s undivided interest in the Ditch succession to defendants’ ancestors, therefore plaintiffs and defendants were co-owners of the Ditch succession property. Defendants were alleged to have sold or otherwise burdened the property without plaintiffs’ knowledge or consent. Plaintiffs asked to be recognized as co-owners with defendants and sought an accounting and a partition by licitation. They did not mention the act of partition.

OBJECTION OF RES JUDICATA

In response to the suit defendant filed the peremptory exception raising the objection of res judicata as authorized by La. Code Civ.P. art. 927. They argued the compromise entered into by the Ditch heirs had acquired “the authority of the thing adjudged” and therefore barred further suit as to the ownership of the property. They reasoned the compromise and partition clearly vested full ownership of the disputed property in Willard Ditch, therefore the property derived from him was not owned in indivisión and no further litigation should be allowed.

Plaintiffs amended certain answers to interrogatories to state they did not deny the existence of the act of partition but contended the act was incomplete because it did not list all of the property of the succession of the Ditches. This theory was further explained in a post trial memo wherein plaintiffs contended the entire “L” shaped tract (referred to at trial as the “blue tract”) claimed by the Levy and Finkelstein heirs was not granted to Willard Ditch in full ownership. They reasoned since only a part of the tract was specified in the compromise, the balance of the property remained owned in indivisión by all of the Ditch heirs. Plaintiffs argued it was this undivided interest that was transferred from Clothilde Ditch to Levy and the Fink-elsteins. They contended since only part of the “blue tract” was partitioned in the compromise agreement there was nothing to bar suit concerning the remaining undivided portion of the property.

After a hearing on the exception the trial judge sustained the exception and dismissed the suit. The court concluded all of the succession property had been divided in the act of compromise, Willard Ditch had obtained the “blue tract” in full ownership and therefore any subsequent suit concerning the ownership of the “blue tract” was barred. Plaintiffs have appealed.

In determining the appropriateness of the res judicata objection this court is faced with a simple issue but one quite difficult to articulate. On the one hand the defendants believe they own a certain specified tract of land derived from the title of Willard Ditch. As vendor, Willard Ditch believed he had full ownership of this land by the terms of the act of compromise and partition. If this is true the ownership of this land was made res judicata by the partition and any subsequent litigation about the ownership should be barred. Plaintiffs, on the other hand, argue at least part of the land defendants believe they own was not granted to Willard Ditch in the act of compromise. They insist the compromise granted to Willard Ditch only a part of the tract in com-píete ownership. The remainder of the tract was not disposed of and therefore continued to be owned in indivisión by the six Ditch heirs. Therefore, as to that portion of the land, Willard Ditch could only have sold his one-sixth undivided interest. If this is true then the ownership of the undivided tract is subject to litigation, because its ownership was not determined in the compromise agreement.

After carefully examining the record we conclude the trial court was correct in sustaining the objection. We are convinced the partition agreement divided all of the land owned by the succession of Ozeme and Fanny Ditch. The property granted to Willard Ditch in full ownership is the same property being claimed to be owned in indi-visión by the plaintiffs, therefore the suit is barred by the compromise.

There is no question that a compromise has a force equal to the authority of the thing adjudged. La.Civ.Code art. 3078. Further, the objection of res judicata is the proper method of raising a compromise as a bar. Bielkiewicz v. Rudisill, 201 So.2d 136 (La.App.3d Cir. 1967); Bowden v. State Farm Mutual Automobile Ins. Co., 150 So.2d 655 (La.App.3d Cir. 1963).

As a preliminary matter, we find it unimportant that the act of partition was entered prior to the time of the judgment of possession. It is true one must own property before one has the right to partition property. Samuels v. Parsons, 146 La. 262, 83 So. 548 (La.1919), rehearing denied 1919. But in Louisiana, ownership of succession property passes to the regular heirs as of the moment of death, without the necessity of formal proceeding. La.Civ. Code art. 940, 941; Hibbert v. Mudd, 294 So.2d 518 (La.1974). Therefore, at the time the heirs executed the act of compromise they did in fact “own” the property with which they were dealing.

Appellant argues the exception was improperly sustained because the three essential requirements for res judicata were not met. La.Civ.Code art. 2286 sets forth the requirements as follows:

“The authority of the thing adjudged takes place only with respect to what was the object of the judgment. The thing demanded must be the same; the demand must be founded on the same cause of action; the demand must be between the same parties, and formed by them against each other in the same quality.”

We are convinced the “thing demanded” in the act of compromise and in this litigation are the same. We reached this conclusion by reading the testimony taken at the hearing and by examining the various exhibits. Defendants have contended throughout the property granted to Willard Ditch (part of which was later conveyed to the defendants) was a certain area referred to as “the blue tract” on a map prepared by defendants. At the hearing on the exception various experts were called by each party to determine exactly what land was granted to Willard Ditch. Robert Miller was accepted by the court as an expert in the area of civil engineering and land surveying. He testified for the defendants that in his opinion the property description in the partition act roughly described the “blue tract.” He acknowledged some of the boundary descriptions were erroneous but stated this was not unusual, particularly in old documents. Robert Romero, an expert in title abstracting, stated he had examined the pertinent documents and he agreed with the conclusions of Mr. Miller.

Plaintiff’s title abstracting expert, Mr. Roland Kidd, testified in his opinion the entire blue tract was not described in the act of compromise and only a part of it was intended to be given to Willard Ditch in full ownership. In his written reasons for judgment the trial court noted Mr. Kidd was not a disinterested party because the plaintiffs had agreed to give him one-half of any lands recovered in the suit as payment for his services. As always, the trial court is granted much discretion as to credibility of the witnesses and we find no manifest error in the court’s decision to discount the testimony of Mr. Kidd.

Plaintiffs maintain the “thing demanded” is not the same because the act of compromise did not dispose of all of the succession property and in particular, did not dispose of part of the “blue tract.” We do not agree. The descriptive list filed as a part of the succession proceedings contains the description of the same property described in the act of compromise. The same description is found in the judgment of possession. Of particular interest is the following language found in the descriptive list:

“... the following is a true and correct itemized detailed statement of all the property belonging to the community of acquets and gains heretofore existing and flowing from the marriage of their deceased father, Ozeme Ditch, and their deceased mother, Fanny Ray Ditch, his wife and of all the property belonging to their succession.... ” (Emphasis added.)

Since the descriptive list and the act of compromise contain the same property, it is apparent the act of compromise was intended to dispose of all property of the succession. Since all of the succession property was disposed of, any further litigation concerning the ownership of the property should be precluded. La. Civil Code arts. 3078, 2286.

Plaintiffs argue the only part of the land granted to Willard Ditch in complete ownership was that portion of the land lying in section 2. (Other portions of the disputed tract are in section 11 and section 12.) They allege the land is described as lying in section 2 in the act of compromise. A reading of that act shows their argument to be totally without merit. The language relied upon by plaintiffs is found in the part of the agreement that grants Willard Ditch the “blue tract” using the property description quoted above and then proceeds as follows:

“As further consideration of the conveyance to him of the above described property, the said Willard Ditch hereby declared that the timber on that portion of the tract of land hereinabove secondly described, lying in Section 2 T. 16 S. R. 12 is by him conveyed to Wallace M. Ditch.... ” (Emphasis added.)

Even a cursory reading reveals the reference to section 2 deals with the granting of timber rights on a certain part of the land, and in no way purports to be a description of the entire tract.

In conclusion, it is clear to us the thing demanded in the act of compromise (Willard Ditch’s full ownership of the “blue tract”) and the thing demanded in the suit (a portion of this same property) are the same.

We further conclude the demand in the compromise and the demand in the lawsuit are based upon the same cause of action. It has been noted by the Louisiana Supreme Court that “cause of action” is a mistranslation and should read simply “cause.” In order to determine the meaning of the word “cause” civilian doctrine should be examined. Mitchell v. Bertolla, 340 So.2d 287 (La.1976), rehearing denied 1976.

In his Civil Law Treatise (Traité élémen-taire de droit civil), Planiol defines cause as “the juridical or material fact which is the basis of the right claimed, or the defense pleaded.” 2 Planiol, Civil Law Treatise, pt. 1, no. 54 A(6) at 38 (11th ed. La.St.L.Inst. transí. 1959). In this same source he states, “Without doubt no difficulties are encountered when the claim has as its object a real right or a debt: the cause is the principle giving rise to the right; in the case of a real right it is a purchase, a donation, a legacy, etc.;”

Using Planiol’s definition as a guideline we conclude the “cause” (i. e., the principle giving rise to the right claimed) of the compromise is an inheritance. It is by virtue of their status as regular heirs that the parties to the compromise derived their rights of ownership of the land. Similarly, the rights of ownership claimed in the lawsuit are derived from the parties’ inheritance in that plaintiffs clearly alleged they were entitled to the ownership of certain property because they were heirs of Ozeme and Fanny Ditch. Since both the compromise and the lawsuit have as their cause an inheritance, we find no difficulty in concluding the requirement of “same cause” has been satisfied.

The third element that must be fulfilled is the suit must be between the same parties and formed by them against each other in the same quality. The compromise was between the heirs of Ozeme and Fanny Ditch. The suit is between the heirs of five parties to the compromise and the successors in title of the sixth party to the agreement. The parties to the compromise all derived their title from Ozeme and Fanny Ditch. The parties to the lawsuit all derive their title (originally) from Ozeme and Fanny Ditch. There is no requirement the parties be actually the same physical parties, but only that they are the same parties in the legal sense of the word. Quinette v. Delhommer, 2A1 La. 1121, 176 So.2d 399 (1965), rehearing denied 1965; Scurlock Oil Company v. Getty Oil Company, 294 So.2d 810 (La.1974), on remand 324 So.2d 870 (La.App.3d Cir. 1975). This requirement of identity of the parties is met where a successor or privy of one of the parties is involved. Clearly, all the parties involved in the lawsuit are successors to the original redactors of the compromise agreement.

In conclusion, because the three requirements have been met, we hold the objection of res judicata was properly sustained. The judgment of dismissal is affirmed.

ADMISSIBILITY OF PROFFERED LETTER

Appellants contend the trial court erred in refusing to allow into evidence a letter allegedly written by Mr. Leonard Wise, a deceased attorney, to Milton Levy, Louis Finkelstein and Joseph Finkelstein, all deceased. The letter was dated December 12, 1949 and was written in response to questions concerning an unprobated will written by Fanny Ditch. In the letter Mr. Wise opined that Willard Ditch had received only an undivided interest in part of the “blue tract.” The trial court refused to admit the letter citing Lafleur v. Sylvester, 135 So.2d 91 (La.App.3d Cir. 1961) for the proposition that attorneys should not be permitted to state their legal opinions as to the legal construction to be placed on a written instrument.

We are in full agreement with the trial court. The letter obviously represents the legal opinion of the attorney and is hearsay as well. It has been held that letters written by an attorney to his client are inadmissible (after the attorney’s death) because the letters are private writings between the attorney and client and the defendant would have no way of cross-examining the attorney. Heinz v. Tourne, 18 So.2d 46 (La.App.Orl. Cir. 1944). The trial court acted properly in sustaining the objection to the admissibility of this letter.

EXPERT WITNESS FEES AND ASSESSMENT OF COSTS

Appellant complains the amount of the expert witness fees was excessive and should be reduced accordingly. We disagree. The amount of expert fees is a matter within the discretion of the trial court and should not be disturbed unless found to be manifestly erroneous. La.R.S. 13:3666; Prentice Oil & Gas Co. v. Caldwell, 355 So.2d 1327 (La.App.1st Cir. 1977), writ refused 1978. Because of the extremely complicated nature of the case we find no error in awarding Mr. Robert Miller $6,260.00 and Mr. Robert Romero $1,500.00 for their services. Mr. Miller and his staff prepared two aerial photo overlays, two extensive maps of the property, and studied the numerous deeds in order to understand the property description. Mr. Romero also examined all pertinent deeds and ran “takeoffs” on all transactions by Ozeme and Clothilde Ditch. There is no question that these tasks took many hours to complete.

Appellant also complains the trial court erred in awarding appellee $222.15 for the cost of obtaining certified copies of the various documents used to prove the title to the land. We find no error here. Except as otherwise provided by law the court may render judgment for costs or any part thereof against any party as it may consider equitable. La.Code Civ.P. 1920. It is firmly established the trial court has a great deal of discretion in this matter. Succession of Batton v. Prince, 384 So.2d 506 (La.App.2d Cir. 1980); Gatheright v. State Farm Mut. Auto. Ins. Co., 352 So.2d 428 (La.App.3d Cir. 1977). Considering the circumstances surrounding this case, we feel it is entirely equitable that appellants be cast for these costs. Because of the appellants’ suit, appellees were forced to “prove their title” to the disputed land and it was absolutely necessary to procure the certified copies of the documents in order to do so. It has been held that in a petitory action, costs of deeds to land involved (where necessary to the cause) were properly allowed as costs. Levy v. Stephens, 54 So.2d 842 (La.App.2d Cir. 1951).

For the foregoing reasons, the judgment of the trial court is affirmed. Appellants are to pay all costs of these proceedings.

AFFIRMED.

      . Florentine Ditch, Milton J. Arceneaux, Charles B. Arceneaux, Floribell A. Manou, Sr., Irma Ditch Yarborough, Leo Ditch, Melvin F. Ditch, Roland J. Ditch, Elaine D. Thayer, Patricia Ditch Resweber, Olivier P. Ditch, Lionel A. Ditch, and Austin Ditch.

      . Fanny Katz Finkelstein, Shirley Finkelstein Saltz, Paula Finkelstein Nelkin, Ida Elaine Finkelstein, Ruth Oppenheimer Finkelstein, individually and in her capacity as testamentary executrix of the succession of Joseph J. Finkel-stein, Ann Jacob Levy Choa, Ruth Tophan Levy Phillips, Mary Lynn Levy Loket, Gayle Levy Lewis, Carol Jean Levy Lubritz.

      . There are only two minor variations in the descriptions in the two documents, neither of which affect the substance of the property being described.

      . Since the basis of the res judicata objection is a compromise, the term thing “demanded” is not particularly descriptive, since by nature a compromise is a mutual agreement and there is no thing “demanded” in the usual sense of the word. However, in a very liberal sense it could be said Willard Ditch was “demanding” to be declared full owner of the now disputed tract of land.


author: CHEHARDY, Judge.

text:
    HORACE MANN INSURANCE COMPANY and Henry Kirsch v. Morrison DANIELS, Georgia B. Osby and New Orleans Public Service Inc.
    No. 12522.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 26, 1981.
    Sessions, Fishman, Rosenson, Boisfon-taine & Nathan, Steven A. Glaviano, New Orleans, for plaintiffs-appellees.
    Roger Jacobs, New Orleans, for Morrison Daniels, defendant-appellant.
    Floyd F. Greene, New Orleans, for New Orleans Public Service Inc. and Georgia B. Osby, defendants-appellants.
    Before BOUTALL, CHEHARDY and KLEES, JJ.
   CHEHARDY, Judge.

A study of the record to determine our jurisdiction disclosed an apparent defect which would indicate a lack of jurisdiction. Accordingly we issued a rule to show cause to appellant New Orleans Public Service Inc. why their appeal should not be dismissed.

Their appeal is from a judgment in favor of plaintiffs’ subrogation suit arising out of a vehicular collision. Judgment was rendered on March 16, 1981 and on the same date notice of judgment was mailed. There was no application for a new trial by either defendant. Appellant New Orleans Public Service Inc. petitioned for appeal on April 1,1981 and filed their bond on April 1,1981. Allowing three days’ delay to request a new trial and the suspensive appeal delay of ten days, New Orleans Public Service Inc.’s appeal should have been filed no later than March 30, 1981. Consequently, New Orleans Public Service Inc.’s appeal filed on April 1, 1981 was untimely. Accordingly the judgment became final and this Court has no jurisdiction to entertain the appeal.

Therefore, the appeal of New Orleans Public Service Inc. is dismissed.

APPEAL DISMISSED.


text:
    E. D. HABER HEATING & AIR CONDITIONING, INC. v. Herbert KOPPENAL.
    No. 14415.
    Court of Appeal of Louisiana, First Circuit.
    May 26, 1981.
    John A. Cvejanovich, Covington, for plaintiff, appellee.
    Bernard S. Smith, Covington, for defendant, appellant.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

Appellee moved to dismiss the appeal on the grounds that it was untimely.

The timeliness of the appeal is the sole issue. We deny the motion.

Trial on the merits was had September 22, 1980. On October 7, judgment was signed. A motion for a new trial was denied on October 14. Defendant filed the motion for appeal December 12, within the time limits prescribed by C.C.P. Art. 2087.

The order of appeal, however, was not signed until December 16, after the delays for a devolutive appeal had run.

Appellee argues that under LSA-C.C.P. Art. 2121, an order of appeal must be signed within the delay allowed for obtaining an appeal or be dismissed as untimely.

In the consolidated case of Joseph N. Traigle, Collector of Revenue, State of Louisiana v. Gulf Coast Aluminum Corporation, et al., 399 So.2d 183 (1981), the Supreme Court held a timely filed appeal, signed after delays have run, shall not be dismissed as untimely. Basing its decision on LSA-C. C.P. Art. 2161, the court held the fault of the Clerk of Court in not signing the appeal himself or in not obtaining the judge’s signature thereon shall not be imputable to the appellant.

MOTION DENIED.

      . LSA-C.C.P. Art. 2087:
      “Except as otherwise provided in this Article or by other law, an appeal which does not suspend the effect or the execution of an ap-pealable order or judgment may be taken within sixty days of:
      (1) The expiration of the delay for applying for a new trial, as provided by Article 1974, if no application has been filed timely;
      (2) The court’s refusal to grant a timely application for a new trial, if the applicant is not entitled to notice of such refusal under Article 1914; or
      (3) The date of the mailing of notice of the court’s refusal to grant a timely application for a new trial, if the applicant is entitled to such notice under Article 1914.
      When a devolutive appeal has been taken timely, an appellee who seeks to have the judgment appealed from modified, revised, or reserved as to any party may take a devolutive appeal therefrom within the delays allowed in the first Paragraph of this Article or within ten days of the mailing by the clerk of the notice of the first devolutive appeal in the case, whichever is later.”

      . LSA-C.C.P. Art. 2121:
      “An appeal is taken by obtaining an order therefor, within the delay allowed, from the court which rendered the judgment.
      An order of appeal may be granted on oral motion in open court, on written motion, or on petition. This order shall show the return day of the appeal in the appellate court and shall provide the amount of security to be furnished, when the law requires the determination thereof by the court.
      When the order is granted, the clerk of court shall mail a notice of appeal to counsel of record of all other parties, to the respective appellate court, and to other parties not represented by counsel. The failure of the clerk to mail the notice does not affect the validity of the appeal.”

      . LSA-C.C.P. Art. 2161:
      “An appeal shall not be dismissed because the trial record is missing, incomplete or in error no matter who is responsible, and the court may remand the case either for retrial or for correction of the record. An appeal shall not be dismissed because of any other irregularity, error or defect unless it is imputable to the appellant. Except as provided in Article 2162, a motion to dismiss an appeal because of any irregularity, error, or defect which is imputable to the appellant must be filed within three days, exclusive of holidays, of the return day or the date on which the record on appeal is lodged in the appellate court, whichever is later.”


author: FORET, Judge.

text:
    James BUCKLEY et al., Plaintiffs-Appellants, v. EXXON CORPORATION et al., Defendants-Appellees.
    No. 7480.
    Court of Appeal of Louisiana, Third Circuit.
    May 27, 1981.

      Evans, Bradley & Wallace, C. Allen Bradley, Jr., DeRidder, for plaintiffs-appellants.
    William J. Sommers, Jr., New Orleans, Hall, Lestage & Lestage, W. E. Hall, Jr., DeRidder, for defendants-appellees.
    Before GUIDRY, FORET and CUTRER, JJ.
   FORET, Judge.

James and Earline Buckley (Plaintiffs) brought this action ex delicto on behalf of their minor child , Joel Buckley, to recover damages for personal injuries he suffered in an accident involving a large tractor-trailer truck. Defendants are Gilbert L. Royer, the driver of the truck, and his employer, Exxon Corporation, the owner of the truck.

The action was tried by a jury which returned a unanimous verdict in favor of defendants. The trial court, pursuant to that verdict, rendered judgment dismissing plaintiff’s claim with prejudice, and plaintiff appealed to this Court. We affirmed the judgment of the trial court in an unpublished opinion. Plaintiff then applied for and was granted a writ of review by the Honorable Louisiana Supreme Court. The Supreme Court, in James Buckley, et al v. Exxon Corporation, et al, 390 So.2d 512 (La.1980), reversed the judgment of this Court and remanded the case to us solely for a determination of the amount of damages to which plaintiff is entitled.

FACTS

See the opinion of the Supreme Court in Buckley v. Exxon Corporation, supra, for an account of the facts surrounding the accident in which Joel Buckley was injured. It is sufficient for our purposes to simply state that Joel was injured when the rear wheel or wheels of a trailer being pulled by a tractor (commonly known as an eighteen-wheeler) either passed directly over his legs or over a bicycle which was lying partially on top of his legs.

Joel was seven years old at the time of the accident and suffered multiple traumatic fractures of both legs. He was immediately taken by ambulance to the emergency room of the Beauregard Memorial Hospital where he was initially treated. He was then transferred and admitted to the Huey P. Long Memorial Hospital in Pineville, Louisiana, that same day.

X-rays and diagnostic procedures performed at the Huey P. Long Memorial Hospital revealed that Joel had suffered the following major injuries:

1. A closed mid-shaft fracture of the left femur;
2. A closed type 1 avulsion fracture of the left tibia spine;
3. A closed non-displaced fracture of the right tibia; and
4. A closed fracture of the first metatarsal of the right foot.

A Steinman pin was then inserted through Joel’s left leg so that traction could be applied to it and a cast was applied to both legs. Joel was given in-patient care for nineteen days until he was discharged from the hospital on April 21, 1977. However, prior to his discharge, Joel was placed under general anesthesia and a double hip spica cast was applied.

Joel’s condition was monitored by physicians at the Huey P. Long Memorial Hospital after his discharge. He was then re-admitted to that hospital on June 14,1977 for removal of the spica cast and physical therapy. He was discharged some six days later. Joel has been seen for treatment and evaluation by a number of physicians since that time, and members of his family have participated in his recovery by learning and applying certain physical therapy treatments.

QUANTUM

A. SPECIAL DAMAGES.

The medical expenses incurred for the treatment of Joel’s injuries were stipulated to by counsel at trial. They amounted to $74.00 for use of the emergency room at the Beauregard Memorial Hospital and $968.40 and $197.80 from the Department of Health & Human Resources, Office of Hospitals, for the Huey P. Long Memorial Hospital, all of which amounts to a total of $1,240.20.

We therefore award plaintiff the sum of $1,240.20 for medical expenses.

B. GENERAL DAMAGES.

An injured party is entitled to damages for past and future pain and suffering, loss of past and future earnings, permanent disability and incurred related medical expenses where such damages are supported by competent evidence. Reeves v. Louisiana and Arkansas Railway Company, 304 So.2d 370 (La.App. 1 Cir. 1974), writ denied, 305 So.2d 123 (La.1974); Barrois v. Service Drayage Company, 250 So.2d 135 (La.App. 4 Cir. 1971), writ denied, 259 La. 805, 253 So.2d 66 (1971); Brignac v. Pan American Petroleum Corporation, 224 So.2d 84 (La.App. 3 Cir. 1969).

Factors to be considered in assessing quantum for pain and suffering are the severity and duration thereof. Walker v. St. Paul Insurance Companies, 339 So.2d 441 (La.App. 1 Cir. 1976), on remand, 343 So.2d 251 (La.App. 1 Cir. 1977), writ denied, 345 So.2d 61 (La.1977).

The record indicates, and eommon sense verifies, the fact that the injuries suffered by Joel were extremely painful. The frequent administration of narcotics and other pain killers as revealed by Joel’s medical records, together with the observations of the nurses who attended him, convince this Court that Joel suffered through a painful ordeal made all the worse by his tender age. There is evidence in the record which indicates that Joel was still experiencing some pain as a result of the injuries suffered in the accident over seventeen months from the date of its occurrence.

The record also shows that Joel was an active child before he was injured but was unable to move his legs in any manner for some three months after the accident due to the cast which had been applied. He is still unable to participate in normal athletic activities with other children his age as there is still some stiffness in his left leg. We find that all of these factors produced much mental arid physical pain and suffering for Joel and that such were a direct result of the injuries sustained by him in the accident.

Plaintiff also seeks to recover general damages for loss of future earning capacity and permanent disability.

Dr. J. Lane Sauls, a family practitioner in DeRidder, Louisiana, testified that he examined Joel twice, once on April 2, 1977, immediately following the accident, and again on May 31, 1979, approximately two weeks before the trial of this matter. He stated that at the time of his second examination, he found that Joel had only limited motion in his left knee and a limited ability to rotate his left leg. It was his opinion that the injuries suffered by Joel in the accident could lead to the above mentioned disabilities and limitations.

Dr. Jerome W. Ambrister, an orthopedic surgeon practicing in Lake Charles, Louisiana, first examined Joel on August 16,1977. He found no residual symptoms with respect to Joel’s right lower extremity, but did find some residual trouble in the left lower extremity, particularly the left knee in that it was rigid. He also found that the left leg was longer than the right and that Joel’s thighs and calves were different in size. He attributed these residual effects to the injuries suffered by Joel in the accident.

He next examined Joel on September 5, 1978, which was some seventeen months after the occurrence of the accident. He noted that Joel was still complaining of pain in his left hip and was still walking with a limp. His examination revealed that there was still some limitation of motion in Joel’s left knee, though it was much less than had been observed in the first examination. Dr. Ambrister testified that, at this time, he suspected that Joel was also suffering from a rotary malunion of the left femur which could cause a person’s foot to either point inward or outward, depending on which way the fractured bone had rotated and then healed. He also felt that Joel’s residual condition would improve with the passage of time.

Dr. Ambrister last examined Joel on May 7, 1979, a little over a month before trial. He testified that Joel had regained even more motion in his left knee at this time. His examination revealed that Joel’s left leg was still longer than the right and that there were still differences in the size of the knees and calves. Dr. Ambrister’s best medical opinion was that there was a possibility that Joel would permanently suffer from some stiffness of the left knee. He again diagnosed a rotary malunion of the left femur but felt that there was no indication that this disability was severe enough to warrant corrective surgery. Dr. Ambris-ter also expressed the opinion that Joel would continue to improve with the passage of time. However, he did state that the different lengths of Joel’s legs, together with the presence of the rotary malunion of the left femur and fracture of the left tibial epiphysis could lead to growth deformity in the future. We note, though, that there was expert medical testimony to the effect that the best method for detecting a rotary malunion was by special x-rays which were not employed by Dr. Ambrister in making his diagnosis of the presence of this condition.

Dr. James R. Oates, a specialist in physical medicine and rehabilitation practicing in Houston, Texas, first examined Joel on December 12, 1977. He too found that there was very limited motion in Joel’s left knee and stated that this was consistent with the fact that the joint had been immobilized for such a long period of time.

He next examined Joel on May 8,1979, at which time he found great improvement in Joel’s ability to move his left knee. He stated that Joel’s gait was perfectly normal. He could find no evidence of a rotary ma-lunion of the fracture of the left femur but did state that he had made no x-rays.

Dr. Oates felt that Joel would have a slight (six percent) permanent residual disability in his left knee which would hamper his ability to perform in athletic competition. He also recommended, as did the other medical experts, that by placing a one-eighth to one-quarter inch lift in the heal of Joel’s right shoe further problems with respect to the different lengths of Joel’s legs could be avoided.

We find that plaintiff has proven that Joel will have a slight permanent disability of his left knee as a result of injuries suffered in the accident.

As to plaintiff’s claim for loss of future earning capacity, we find that the record contains no evidence as to how, when, or how much the injuries sustained herein will affect the future earning capacity of this seven-year-old boy. We therefore find no merit in plaintiff’s demands for damages for loss of future earning capacity.

For the above and foregoing reasons, judgment is rendered in favor of plaintiff and against defendants in the following amounts:

1. $1,240.20 for medical expenses;

2. $40,000.00 for mental and physical pain and suffering and disability, past, present and future.

It is therefore ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of Earline Buckley, individually, in the amount of $1,240.20, plus legal interest thereon from the date of judicial demand; and

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of Earline Buckley, as natural tutrix and in behalf of the minor child, Joel Buckley, in the amount of FORTY THOUSAND AND NO/lOO ($40,-000.00) DOLLARS, plus legal interest thereon from the date of judicial demand.

All costs of proceedings at trial and appellate. level are assessed against defendants-appellees.

RENDERED.

      . At trial the defendants raised the peremptory-exception of no right of action of James Buckley in the lawsuit because Joel Buckley was born fourteen months before the dissolution of an earlier marriage between his mother, Earline Buckley and Purvis Lewis. This exception was sustained at trial, leaving Joel Buckley’s mother, Earline Buckley, as the remaining plaintiff.

      . A Steinman pin is actually placed through the flesh and the bone of an injured extremity. The device which will place that extremity in traction is then attached to this pin. Joel was initially placed in what is termed Split Russell Skeletal traction.

      .A double hip spica cast consists of a stockinette (bandage-type material easily applied) which is placed over the trunk and both lower extremities. Cast padding is then placed over the stockinette and cast material is applied and allowed to harden. The result is that both lower extremities are held rigidly in one position with respect to the trunk.

      . A rotary malunion describes a medical problem in which parts of a bone which has been fractured rotate with respect to each other and then heal in this manner.


author: CUTRER, Judge.

text:
    Jackie O. PROTHRO, Plaintiff-Appellee, v. LOUISIANA PAVING COMPANY, INC., et al., Defendants-Appellants.
    No. 8057.
    Court of Appeal of Louisiana, Third Circuit.
    May 27, 1981.
    Mayer, Smith & Roberts, Paul R. Mayer, Shreveport, for defendants-appellants.
    Charles W. Seaman, Natchitoches, for plaintiff-appellee.
    Before GUIDRY, FORET and CUTRER, JJ.
   CUTRER, Judge.

In this workmen’s compensation case, the plaintiff, Jackie Prothro, sued defendants, Louisiana Paving Company, Inc. (Louisiana Paving), T. L. James, Inc., and their insurer, Highlands Insurance Company (Highlands), claiming total and permanent disability resulting from injuries he received in a one-vehicle accident which occurred while he was returning to his home in Natchitoch-es from the job in Leesville. The trial court granted judgment in favor of the plaintiff and against Louisiana Paving for total disability benefits and all necessary medical services resulting from the accident. Louisiana Paving and Highlands have appealed. We affirm.

The sole issue raised on appeal is whether the plaintiff was in the course of his employment at the time of the accident.

The trial court, in a well reasoned opinion, set forth the facts and correctly disposed of the issue before us. We adopt those reasons as our own, as follows:

“The evidence reflects the following facts: On April 28, 1978, plaintiff was an employee of the Louisiana Paving Company as a mechanic. His job was to maintain and care for the diesel equipment of his employer. His rate of pay was $5.28 per hour. Plaintiff supplied his own 3A ton pickup and the employer paid plaintiff $100.00 per month for plaintiffs use of same plus minor repairs. On this truck, plaintiff carried his own tools plus some special tools furnished by employer. The work on April 28, 1978, for plaintiff was to place certain water trucks and pumps in ‘ready’ condition. Plaintiff on this date traveled from his residence in Natchitoches to Winnsboro and from there followed two water trucks that were being driven to Leesville. The group left Winnsboro about 8:30 o’clock A.M. and arrived at Leesville about 2:15 o'clock P.M. the same day. Plaintiff’s immediate superior was John Edward Garrett, Field Supervisor for Louisiana Paving Company, who accompanied the group in his own vehicle to Leesville.
“Soon after the group arrived at Lees-ville, Mr. Garrett authorized plaintiff and the two truck drivers to go to lunch. About 3:00 o’clock P.M. Mr. Garrett received a phone call at the employer’s local office that plaintiff and the two truck drivers (both of whom were females) were having lunch at the Continental Restaurant in Leesville and requested Garrett to join them for a steak dinner. Garrett went to the restaurant. Before arrival he planned to have plaintiff to drive his vehicle and return the two truck drivers to their homes. On arrival at the restaurant Garrett found that plaintiff had drank two beers and then changed his mind and decided to take the two drivers himself. Garrett advised all of the parties they were given credit of employment until 4:00 P.M. that day. Garrett and the two other employees left plaintiff at the restaurant.
“The next information given this Court was that of State Trooper Gilcrease. He stated he received a call at 5:15 P.M. of a one car accident on the highway about 4V2 miles north of Leesville. He stated the evidence at the scene showed a one car accident in which plaintiff as driver lost control of the pickup truck which had overturned and plaintiff had been thrown out and had suffered severe injuries. The Trooper stated he found no alcoholic beverages involved and that no test was made on plaintiff due to his injuries.
“The remaining question for this Court is: ‘Did the injuries suffered by Jackie 0. Prothro occur within the course and scope of his employment?’ For the reasons hereafter stated the court answers this question in the affirmative.
“The general rule is an employee injured going to or returning from work is not entitled to compensation. This general rule is, however, subject to certain well recognized and established exceptions. One such exception to the above rule which permits recovery of compensation is when the employee is being transported to and from work by means of transportation furnished or supplied by the employer as an integral part of the contract of employment.
“In this case employer paid plaintiff the sum of $100.00 per month for the use of his truck plus minor repairs. This was an integral part of the contract of employment. This agreement provided the plaintiff with the mobility he was required to have by his employment and to carry his tools plus the special tools fur nished him by the employer. In this contract of employment the employer had assumed an interest in the transportation of plaintiff to and from work to the various job sites and because it served some useful purpose of the employer other than simply having plaintiff on the job. In such an employment agreement the employee-employer relationship is no longer confined to the job premises and extends to travel to and from home. See: Boutte v. Mudd Separators, Inc., 236 So. (2d) 906 (3rd Cir., 1970). Writ denied [256 La. 894] 240 So. (2d) 231 (SC, 1970).
“The plaintiff had been given credit by Mr. Garrett for time until 4:00 P.M. He departed soon thereafter from Leesville en route to his home in Natchitoches. The injuries to plaintiff occurred during this proposed trip. It is clear that this trip was in both the interest of plaintiff and his employer. Mr. Garrett actually called the day following the accident to determine the whereabouts of plaintiff for work that day. It was then Garrett learned of plaintiff’s accident.
“Obviously the trip was not at an unusual time. There was only a few minutes after Mr. Garrett left plaintiff that plaintiff began his ill-fated trip to go home. The accident report to the trooper was received at 5:15 P.M. which indicates it would have been several minutes after discovery of the accident that Trooper Gilcrease was told of same. This Court would from the evidence reason that the accident occurred just prior to 5:00 P.M. It is certainly not an unusual time for plaintiff to have been traveling to his home from the Leesville area.
“This Court is of the opinion that plaintiff’s claim for workmen’s compensation benefits falls within the above exception and that he is entitled to benefits provided by the Louisiana Workmen’s Compensation Statutes.”

Defendants urge on appeal that the plaintiff’s duties for the day were terminated by Garrett at 4:00 P.M. for a violation of a company policy. Defendants contend that a result of this termination of duties, the accident occurring approximately one hour later, did not occur in the course of plaintiff’s employment. This position is without merit.

Garrett did not discharge the plaintiff from his employment. He merely terminated plaintiff’s duties for the day at 4:00 P.M. Garrett manifested no intention to terminate any responsibility which the company may have had regarding plaintiff’s transportation to and from his job, arising out of their agreement to provide gas, maintenance and monthly rental for plaintiff’s truck. He only relieved the plaintiff of the additional job of transporting his co-workers for which purpose he would have remained on company time.

The plaintiff was clearly in the course of his employment as he was driving the truck from Leesville to Natchitoches, Louisiana.

For these reasons the decision of the trial court is affirmed. The costs of this appeal are assessed to defendants-appellants.

AFFIRMED.

      . T. L. James, Inc. is apparently the parent company of Louisiana Paving. The trial court, in its reasons for judgment, found that Louisiana Paving was the actual employer of plaintiff. No dismissal of T. L. James, Inc. was included in the trial court judgment, however. Only Louisiana Paving and its insurer were cast in judgment.

      . The defense of intoxication has not been raised by defendants.