author: CHEHARDY, Judge. SAMUEL, Judge,

text:
    Larry KRAAZ and Joyce Kraaz v. LA QUINTA MOTOR INNS, INC.
    No. 11693.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 10, 1981.

      Barnett & Vedros, Ralph L. Barnett and George P. Vedros, Gretna, for plaintiffs-ap-pellees.
    Phelps, Dunbar, Marks, Claverie & Sims, Jesse R. Adams, Jr. and John C. L. Guyer, New Orleans, for defendant-appellant.
    Before SAMUEL, CHEHARDY and KLIEBERT, JJ.
   CHEHARDY, Judge.

Defendant, La Quinta Motor Inns, Inc. (La Quinta), appeals a district court judgment in favor of the plaintiff Mrs. Joyce Kraaz in the following sums: $3,500 for physical pain and suffering, $13,000 for future psychological and psychiatric treatment, and $30,000 for past and future mental pain and suffering; and in favor of plaintiff Larry Kraaz for physical and mental pain and suffering in the amount of $2,500. The district court order further granted judgment in favor of Mr. and Mrs. Kraaz for property loss in the amount of $23,000, including legal interest from the date of judicial demand and for all costs of the proceedings.

The record reveals that on or about December 31, 1978 the plaintiffs, who were registered guests at the La Quinta motel in Metairie, Louisiana, were robbed of approximately $23,000 in cash by two robbers who broke into their motel room during the early hours of the morning while they were asleep.

Mr. and Mrs. Kraaz both testified they heard a close catching sound which was followed by their door opening and the chain breaking away. Mr. Kraaz testified that one of the intruders jumped on him and forced his head down into the carpet with a gun, while shouting obscenities, causing a laceration to the back of his neck, and severely obstructing his ability to breathe. He testified the gunman drew back the hammer of the gun and released it, while demanding the money and threatening to kill him. The other assailant took Mrs. Kraaz into the bathroom, put her into the bathtub and gagged her. The plaintiffs were then bound hand and foot, and after the robbers ascertained the location of Mrs. Kraaz’s purse and abstracted the money, they fled the room. Mr. Kraaz then got free of his ties and gave chase, but could not locate the assailants, who escaped. As a result of the incident, Mrs. Kraaz suffered a laceration of her lip and an extensive bruise on her hip.

The Kraazes testified that earlier the preceding day Mr. Kraaz picked up his wife at the airport in New Orleans where she had flown for the purpose of bringing him $25,-000 in cash for the possible purchase of a racehorse. They then, after stopping for a cup of coffee, proceeded to the Fair Grounds where they had lunch, watched the races, and engaged in betting. At one point during the luncheon Mrs. Kraaz extracted approximately $1,500 from the roll of $25,000 in cash (which she was carrying in a brown paper bag in her purse) in order to pay Thomas Tomillo, a horse trainer for the plaintiffs. Both Tomillo and Mr. Kraaz testified that racehorses frequently are bought and sold through cash transactions rather than by check or by means of the racetrack registry.

Several days after the robbery and assault, Mrs. Kraaz consulted Dr. Terry Pass-man, a psychiatrist, regarding her emotional upset and sleeplessness, who administered a tranquilizer and then sent her to East Jefferson General Hospital for stronger medication. After seeing her on a number of subsequent occasions his diagnosis was acute traumatic neurosis, evidenced by problems with sleeping (requiring the use of sleeping pills), inability to enjoy sexual relations with her husband, and fear of staying in motel or hotel rooms, in which plaintiffs had previously resided for the greater part of the year due to their travels as racehorse owners. Dr. Passman recommended at the time of trial that Mrs. Kraaz get future psychiatric treatment and estimated the length of time necessary for carrying out the therapy to be at least two years, at the rate of two or three sessions per week. He estimated costs, based on his own fees, at approximately $65 per session.

W. L. Quattlebaum, Jr., a resident of Pine Bluff, Arkansas, and also an owner of racehorses, testified that he knew both Mr. and Mrs. Kraaz and that he, himself, was a registered guest at the La Quinta in December of 1978. He described an unsuccessful attempt by someone using a ski mask to gain entrance to his room by identifying himself as the manager of the motel. Although he called the front desk, where an individual volunteered to call the police for him, no law enforcement authorities ever came to his room. Quattlebaum further stated that several days later he was called to the office of the manager, Mr. Croucher, to discuss the attempted robbery and at that time learned of the assault of the Kraazes; Croucher, however, denied having ever spoken to Quattlebaum, but said he had only heard rumors of another incident through the desk clerks.

Articles 2964 through 2971 of the Louisiana Civil Code address themselves to the responsibility of the innkeeper. We should particularly note the following provisions, applicable to the present case:

“He is responsible if any of the effects be stolen or damaged, either by his servants or agents, or by strangers going and coming in the inn.” Art. 2967.
“Every landlord or keeper of a public inn or hotel, shall be required to provide with an iron chest or other safe deposit for valuable articles belonging to his guests or customers, and each landlord or hotel keeper shall keep posted upon his doors and other public places in his house of entertainment, written or printed notices to his guests and customers that they must leave their valuables with the landlord, his agent or clerk, for safe keeping, that he may make safe deposit of the same in the place provided for that purpose.” Art. 2968.
“Every landlord, hotel or inn keeper who shall comply with the requirements of the preceding articles [article], shall not be liable for any money, jewelry, watches, plate, or other things made of gold or silver, or of rare and precious stones, or for other valuable articles of such description as may be contained in small compass, which may be abstracted or lost from any such public inn or hotel, if the same shall not be left with the landlord, his clerk or agent, for deposit, unless such loss shall occur through the fraud or negligence of the landlord, or some clerk or servant employed by him in such inn or hotel; provided, however, that the provisions of this article shall not apply to a wearing watch, or such other articles of jewelry as are ordinarily worn about the person.” Art. 2969.
“He is not responsible for what is stolen by force and arms, or with exterior breaking open of doors, or by any other extra-ordinary violence.” Art. 2970.
“No landlord or innkeeper shall be liable under the provisions of the foregoing six articles to any guests or party of guests occupying the same apartments for any loss sustained by such guests or party of guests by theft or otherwise, in any sum exceeding one hundred dollars, unless by special agreement in writing with the proprietor, manager or lessee of the hotel or inn a greater liability has been has been contracted for.
“Provided that no guest shall be held bound by the limitation of value established in this Article unless this Article is conspicuously posted in the guest room.” Art. 2971.

Nordmann v. National Hotel Company, 425 F.2d 1103 (Ct. of App., 5th Cir. 1970), was an action against a hotel for negligence in failure to exercise ordinary care to protect patrons from injury by third persons. The jury awarded $16,000 to the wife against whom the robber made indecent advances and $5,000 to the husband, who had been bound and assaulted with a gun. In that case the Nordmanns had attended a ball in the hotel, and later when they were reentering their room, they were accosted by the robber. It was held that the hotel was negligent in maintaining only one security guard, one room clerk and one bellboy on duty in an establishment with 1,200 rooms and a large ball in progress. That case, however, did not involve any large sum of money stolen from the plaintiffs as in the present case.

In the case of Zurich Insurance Co. v. Fairmont Roosevelt Hotel, Inc., 250 So.2d 94 (La.App. 4th Cir. 1971), this court reviewed a situation wherein a traveling salesman had had a number of fine furs stolen from his hotel room at a time when he was not present in the room, which had been locked, and there were no signs of forced entry. In that case, however, since the record established beyond a doubt that a notice stating that safety deposit boxes were provided for guests, and that the notice was conspicuously displayed in the salesman’s room, the court held that the hotel was freed from the strict liability imposed by LSA-C.C. arts. 2966 and 2967, whether it had been negligent or not, and, therefore, limited the hotel’s liability to $100.

In the case of Lack v. Anderson, 27 So.2d 653 (La.App. 2d Cir. 1946), the court also held that an innkeeper who had not provided a safe deposit for his guests (although there were posted in the rooms of the inn notices that there was a safe in the front office and that the inn would not be responsible for losses) had not availed himself of those laws designed to limit his liability, and therefore was responsible to plaintiff for the value of the articles stolen from his room by means of a key; however, the court noted that the theft had been perpetrated without force or violence.

In the present case this court has no difficulty in affirming that part of the trial court judgment awarding the Kraazes damages for their physical and emotional injuries suffered as a result of the assault, which we hold, as did the trial judge, was occasioned by defendant’s negligence in giving out a passkey to their room. Testimony regarding the hotel’s maintenance of only one security guard (who was apparently asleep at the time of the incident) and further establishing that a 17-year-old boy was left in charge of the entire hotel, during the night, at a time when it had virtually all of its rooms occupied, further supports a finding of negligence on the defendant’s part. The hotel’s attitude toward the safety of its guests was emphasized by the testimony of Quattlebaum, who was not given any assistance by the motel’s management in connection with the attempted robbery of his own room. We agree with the district court’s judgment that Nord-mann v. National Hotel Company, supra, is controlling. The room was partially entered by force, which necessitates our consideration of LSA-C.C. art. 2971. However, LSA-C.C. art. 2970 does not in any way exempt a hotel or motel from exercising ordinary care to protect its patrons from injury from third parties.

Neither can we find the Kraazes contributorily negligent for carrying around such sums of money as were required for Mr. Kraaz should he decide to purchase one of the horses he was considering. In the case of Laney v. Stubbs, 217 So.2d 468 (La.App. 1st Cir. 1968), the court explained that for a plaintiff to be guilty of contributory negligence his own conduct must have been unreasonable in view of the foreseeable risk. Certainly the risk of an assailant opening their motel room door with a passkey in the middle of the night, leaving them no time to defend themselves from attack or call for help, was not one which could have been foreseeable to the plaintiffs.

Regarding the cash actually stolen from the room of the Kraazes, however, this court would necessarily, due to our prior ruling in Zurich Insurance Co. v. Fair-mont Roosevelt Hotel, Inc., supra, have to declare that the defendant’s liability was limited to $100, if it had complied with the applicable codal articles, supra, in posting a notice requesting the deposit of valuables. The trial judge, however, was not convinced that such a notice had actually been posted in the room of the Kraazes, and we do not find manifest error in that finding of fact. The notice appeared nowhere in the photographs of the room taken by the Jefferson Parish Police Department, nor did Mr. and Mrs. Kraaz, the investigating detectives or Quattlebaum recall seeing such a notice posted in the rooms. The only testimony, in fact, that such a notice was actually posted came from the hotel’s manager at the time (Croucher), whose contradictory testimony allowed the district court, as trier of fact, to disregard it in its entirety. In further following Zurich, therefore, we must hold that since it was the court’s finding the defendant did not comply with the provisions of LSA-C.C. arts. 2968 and 2969, he is strictly liable to the plaintiffs under the terms of LSA-C.C. arts. 2966 and 2967 for the loss of their stolen money. Accordingly, the issue of whether the plaintiffs were contributorily negligent in carrying around such large sums of money is rendered moot.

It is questionable whether LSA-C.C. art. 2970, exempting innkeepers from what is stolen by force and arms or with exterior breaking open of doors, applies only to money or valuables stolen from the safe provided by the innkeeper or whether it also applies to valuables stolen from guests themselves. However, since the theft from the room of the Kraazes was perpetrated partially by the use of a passkey, in addition to the breaking of the chain lock, we hold that in this case LSA-C.C. art. 2970 is not controlling.

The $2,500 award of damages to Larry Kraaz for physical pain and suffering was certainly substantiated by his testimony of the physical and mental abuse suffered by him during the attack by the robbers upon his person. There is no evidence that the trial judge awarded him damages, as contended by defendant, for the mental suffering he experienced because of concern for his wife during the assault, although Mr. Kraaz did testify that, quite naturally, he also feared for her safety during their unfortunate experience.

Mrs. Kraaz’s award of $3,500 for physical pain and suffering was substantiated by testimony as well as a photograph of her physical injuries.

Regarding the award of the trial court to Mrs. Kraaz of $30,000 for past and future mental pain and suffering, the record supports that this amount was well within the district court judge’s discretion. Mrs. Kraaz testified that she is now afraid to stay in hotel rooms, precluding the possibility of her traveling frequently, as she once did. She stated in this regard, "I was scared. I was just scared. * * * I kept seeing this guy’s face. I just wasn’t comfortable.” She also explained that she has difficulty sleeping at night and stated, “I just don’t care about going around people.” Mrs. Kraaz also said: “I’ve lost weight. I go on sometimes weeks at a time and I just don’t have an appetite, my stomach — I’m just nervous inside all the time. The tranquilizers, they just don’t seem to help that much.”

The emotional effects of the assault and robbery on Mrs. Kraaz were also borne out by the testimony of Dr. Passman. He stated that when he first saw her on January 3, 1979, “since this had happened she was unable to sleep, not any more than two or three hours a night, that she was so upset she could not keep her mind off of it. She would mistake people just seeing them in everyday life for people they had seen in the motel lobby.” He added:

“ * * * I felt she was totally incapacitated. By totally I mean that I would not trust her to cross the street without getting hit by a vehicle. * * *
“ * * * She had a responsible husband with her who could take charge of her. If there had not been an outside partner who could accept that responsibility she would have needed hospitalization.”

Dr. Passman said that he also saw Mrs. Kraaz on January 17, 1979 and on January 22,1979, when he noted: “She was afraid to go to sleep. She felt like a recurrence of the same sort of incident was likely. She was fantasizing the same thing happening, having frightening dreams.” When Dr. Passman saw Mrs. Kraaz on January 29, 1979, when she was getting ready to leave New Orleans, he noted, “She had early morning awakenings which is a very classic sign of depression. She was thinking of the incident throughout the day and continuing to have fear and a possibility of some quality of guilt.” Although Dr. Passman did not see Mrs. Kraaz again until one week before the trial, he described her at that point as:

“ * * * She looked more haggard. Before there was a certain freshness, in spite of the anxiety, in spite of the depression which was not present. There was a look of long term tension as if for the past year she’s never relaxed. She continued to be very well groomed but with a subtle, haggard look, a person who is just never able to relax. And, the general appearance went from somebody who had an immediate problem to someone who’s been living with a problem.”

This court cannot find error, moreover, in the district court judge’s award of $13,000 for future psychological and psychiatric treatment. Regarding the fact that Dr. Passman had not recommended extended therapy to Mrs. Kraaz right after the accident, he testified:

“Q. Did you make any recommendations as to her seeking further treatment or therapy?
“A. No, I try not to make major recommendations over a telephone.
“Q. When you last or when you saw her January 29, this was approximately a month after the incident?
“A. Yes.
“Q. Would you have expected that the problems that she suffered would be gone or that she should be over these problems?
“A. Well, if it was going to be an immediate improvement it should have been substantially better by then. There was significant improvement over that month, so I was optimistic that things would continue to improve but I felt that we might be in for much more serious problems in the long run and in the course of it all it was just too early to predict how things were going to work out.”

Dr. Passman was very specific, however, regarding his recommendations to Mrs. Kraaz after meeting with her on several occasions shortly before the trial took place, and stated:

“A. And, it was at this point that I discussed with both of them her need for future treatment. And, my recommendation to her that she get this treatment, more specifically, I felt that she needed to be in therapy at least twice a week to be able to get to these problems, to deal with them. It might be more often than that and I quesstimated [sic]. You never can really tell the length of time the therapy would be necessary, was at least two years.
“Q. Could it be possibly longer?
“A. It could possibly be longer. I would say at least. I would say that would be pretty much a minimum figure. And, I went through a directory of psychiatrists in Chicago and gave her several names there for referral purposes.
“Q. Doctor, what would the cost of a psychiatrist be at the rate of two or three times per week?
“A. Well, my current fee is sixty-five dollars a session. This varies somewhat from area to area. * * * ”

Mrs. Kraaz also explained in her own testimony why she had not sought further treatment during the year before the trial and why she now intended to follow Dr. Passman’s recommendations:

“Q. When did you last see Dr. Passman?
“A. I saw him last Thursday, I think it was.
“Q. Did he make any recommendation to you at that time?
“A. Yes, he did. He recommended that when we get back to Chicago that I go see a psychiatrist up there and he gave me quite a few names to choose from, for some of the best ones up there that I should go see.
“Q. Is it your intention to follow his recommendation?
“A. Yes, because my husband thought that if 1 just wouldn’t talk about this and that it would all go away but it hasn’t and every time I talk about it or start thinking about it, it’s all just like it was yesterday. It’s the same thing over again. So, I got to go see someone. Someone’s got to help me.”

In considering the damages awarded to the Kraazes this court finds that they were just, reasonable, and well within the discretion of the district court judge; therefore, we can find no basis to disturb them on review. Reck v. Stevens, 373 So.2d 498 (La.1979).

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

AFFIRMED.

SAMUEL, J., concurs with written reasons.

SAMUEL, Judge,

concurring.

I have serious doubts regarding: (a) whether or not the notice limiting liability was posted as required; (b) the amount of money actually lost in the robbery; and (c) the amounts of the awards for mental and physical injuries allegedly sustained by the plaintiffs (which I believe are excessive). However, under the guidelines established by the Supreme Court relative to our Constitutional fact-finding authority, I cannot say the majority is incorrect.

Accordingly, I respectfully concur.

      . It should be noted that the investigating deputies were not interested in determining or observing whether or not there was a notice posted, and in the photographs of the room the door was open and the inside of the door, on which the manager testified the notice was posted, is not shown.


source: Caselaw Access Project

author: BOUTALL, Judge.

license: Public Domain

text:
    Walter T. LANAUX v. ACE PRODUCTION, INC. et al.
    No. 11695.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 10, 1981.

      Tortomasi & Tortomasi, Bernard J. Torto-masi, Jr., New Orleans, for Walter T. La-naux, plaintiff-appellant.
    Frank E. Beeson, III, New Orleans, for George MeGehee Brown, Jr., defendant-ap-pellee.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   BOUTALL, Judge.

This appeal is by shareholder complaining of an inadequate award of costs and expenses to enforce his inspection rights as provided in L.R.S. 12:172(D).

Walter T. Lanaux is a qualified shareholder of the defendant corporation, Ace Production, Inc. In accordance with L.R.S. 12:103(D) he made written demand upon the corporate president, George MeGehee Brown, Jr. for examination of the corporate records. Receiving no response, Lanaux filed a petition for writ of mandamus against the corporation and Brown to permit the statutorily authorized examination. Despite personal service on Brown, no appearance was made on behalf of the defendants. After a hearing, the court made the alternative writ of mandamus peremptory ordering compliance, but suggesting to petitioner that the issue of costs and attorneys’ fees as provided in L.R.S. 12:172(D) be reserved to a later date.

Personal service was made of the mandamus judgment, but Brown still did not comply. This action caused petitioner to file a rule for contempt for failure of Brown to follow the directive of the court, cumulated with a prayer for costs, attorneys’ fees and damages. The contempt rule was fixed for November 16,1979 and on that date Brown finally appeared in court, but was unrepresented by an attorney, and the matter was continued to December 21, 1979 to permit compliance. However, no compliance was had and on December 21, 1979 the respondent Brown failed to show present in court. The court then found him in contempt of the orders of the court and imposed a sentence of 24 hours confinement in the Parish Prison together with a fine of $250, and issued a writ of attachment for the arrest and production of the defendant for execution of sentence. The court further ordered judgment against the defendants for $250 attorneys’ fees for that proceeding only, and reserved the right of plaintiff’s attorney to request fees for other proceedings. Brown somehow learned of his impending arrest and appeared in court with attorney during the year-end recess and obtained a stay of sentence from another judge. On January 3, 1980 Brown’s attorney filed a motion and order to rescind and recall the judgment of contempt, and the court set that matter for January 18th, requiring the production of the corporate records at the same time.

At that hearing the judge recalled and annulled the prior judgment of December 21 that held Brown in contempt and awarded attorneys’ fees, ordering defendants to pay attorneys’ fees in the sum of $150 and to pay all court costs of the proceedings. However, for some reason unknown to us, this judgment of January 18 was also recalled and annulled and on the 25th of January judgment was rendered ordering defendants to pay plaintiff’s attorney fees in the sum of $150 and to pay $18.00 of the court costs of these proceedings. Plaintiff’s appeal followed. We conclude that the judgment is manifestly erroneous and the award is inadequate. We note that the penalties provided in R.S. 12:172(D) are only authorized in the case of a bad faith refusal to permit the exercise of inspection rights. We have detailed the circumstances of this case above because they clearly show the bad faith of the defendant. The only excuse offered in the record for defendants lack of action is that offered by his attorney on January 18th that Brown was not represented by counsel in any of the prior proceedings and that now, having obtained counsel, he complied with the court’s order and the plaintiff’s request. The court made obvious its feeling of compassion for the defendants, but at the same time we cannot permit the plaintiff to be punished by denying him the costs statutorily accorded him to assist in compliance with his right as shareholder. To affirm the judgment of the trial court would render those statutory rights meaningless.

By stipulation of the parties, plaintiff introduced a detailed statement showing the time required of his attorney to afford proper representation in the numerous proceedings made necessary by defendant’s constant refusal to appear and comply. This amounted to 18 hours of work at $50 per hour or the sum of $900. Additionally, the court costs expended at that time amounted to $90. We recognize that there is discretion vested in the trial judge in the setting of attorney’s fees, and that attorney’s fees are ordinarily set upon a myriad of considerations which we have enumerated in past jurisprudence. However, noting the trial judge’s award of attorney’s fees in the sum of $250 only for the contempt proceeding, when we consider the several other proceedings, we believe that the sum of $900 is just under the circumstances. We especially note that the many hours detailed by the attorney were necessitated because of Brown’s constant refusal to comply with the rights of the shareholder.

Similarly, it was this same refusal which caused the imposition of the court costs necessary to carry out all of the procedures to finally obtain examination of the record. We can perceive no legal basis for reducing the stipulated court costs from $90 to an award of only $18. Accordingly, we award $90 as costs and expenses under R.S. 12:172(D). Additionally, we tax whatever other court costs may be due in this proceeding below and this appeal against the defendants as provided in C.C.P. Art. 2164.

For the reasons assigned above, the judgment appealed from is amended and increased and there is now judgment rendered in favor of Walter T. Lanaux and against Ace Production, Inc. and George McGehee Brown, Jr. in solido in the sum of $900 as attorney’s fees and $90 as costs. Defendants are additionally cast for all court costs in the trial court and this court. As thus amended, the judgment is affirmed.

AMENDED AND AFFIRMED.


author: KLIEBERT, Judge.

text:
    Warren STEIB and Emmanuel Falgoust v. SCHWEGMANN BROS. GIANT SUPERMARKETS, INC. and Kevin Moon.
    No. 11697.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 10, 1981.
    Beard, Blue, Schmitt, Mathes, Koch & Williams (Melvin W. Mathes and A. J. Schmitt, III), New Orleans, for defendants-appellants.
    Lee, Martiny & Caracci (Mark N. Carac-ci), Metairie, for plaintiffs-appellees.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   KLIEBERT, Judge.

On January 7, 1978, two trucks collided on St. Louis Street in the City of New Orleans. One was a refrigerated truck owned by the defendant Schwegmann Brothers Giant Supermarkets, Inc. (hereinafter referred to as Schwegmann). The other was a panel body truck owned by Warren Steib, one of the plaintiffs. The accident occurred on St. Louis Street approximately twenty-five (25') feet south of its intersection with North Rocheblave Street in the City of New Orleans. St. Louis Street is an undivided, two-lane, two-way traffic roadway. The defendant, Kevin Moon, employed by Schwegmann, had just turned right from North Rocheblave Street onto St. Louis Street. The other plaintiff, Emmanuel Falgoust, was a guest passenger in the Steib vehicle. The accident was a “side-swipe” collision, the left side of each truck being damaged.

The trial court awarded damages of $3,670.00 to plaintiff, Warren Steib, and $2,797.48 to plaintiff, Emmanuel Falgoust. The defendants, Kevin Moon and Schweg-mann Brothers, appealed.

Appellants contend the trial court erred in finding the defendants negligent and in failing to find the plaintiffs contrihutorily negligent. Additionally, appellants contend the trial court awards were excessive.

Three fact witnesses testified at the trial. Warren Steib, plaintiff, testified the defendant’s truck was traveling at approximately 25 miles per hour as it rounded the corner onto St. Louis Street and struck his vehicle. (In his earlier deposition, he stated it was traveling at 35 miles per hour). Steib claims that when he saw the defendant’s truck approaching, he veered to his right behind a parked car to avoid being hit. Nevertheless, he was side-swiped by the defendant’s truck. His testimony was corroborated by Emmanuel Falgoust, his guest passenger, as well as by the physical facts surrounding the accident.

Kevin Moon, the operator of the Schweg-mann truck was not licensed to drive the truck. The particular truck involved in the accident had only been driven by him twice before the accident. According to his version of the accident, as he rounded the comer onto St. Louis Street, a car was partially blocking his lane of traffic causing him to swing wide around the parked vehicle. While returning to his proper lane of traffic, he contends plaintiff’s truck pulled out in front of his truck. Later, Kevin Moon stated he did not see the plaintiff’s vehicle before the collision. Still later, he testified he saw the truck three feet before the collision. At another and later time, he testified he saw the truck as he rounded the comer. Moon admitted plaintiff’s vehicle was in the correct lane of traffic at the time of the accident. He further admitted his vehicle was protruding into the lane of traffic for the plaintiff’s vehicle. The trial court accepted the plaintiff’s version of the accident. So do we. Hence, we are not in a position to or desirous of disturbing the trial court’s findings of negligence and absence of contributory negligence.

Credibility of witnesses is particularly a matter as to which the trier of fact has much discretion. Dupre v. South Central Bell Tel. Co., 318 So.2d 145 (La.App. 3d Cir. 1975); LeBlanc v. Cordaro, 378 So.2d 1027 (La.App. 2d Cir. 1979). A trial court’s judgment in regard to credibility of witnesses will not be disturbed unless clearly erroneous. McMillan v. Travelers Insurance Company, 371 So.2d 1213 (La.App. 1st Cir. 1979), and cases cited therein.

Appellants also contend error by the trial court in the fixing of the damage award. .Warren Steib was awarded judgment of $3,000.00 for general damages and $670.00 as special damage for medical expenses and property damages. Emmanuel Falgoust was awarded judgment of $2,500.00 for general damages and $297.48 as special damages for medical expenses. Appellants contend this is unreasonable and excessive.

The narrative medical report of Dr. David Aiken, the treating physician for both plaintiffs, was introduced into evidence in lieu of his testimony.

Dr. Aiken diagnosed Steib’s injuries as an acute cervical dorsal sprain, mostly right-sided, and a contusion of the right elbow with a possible tear in the brachioradialis muscle or fascia. He also felt the injuries were caused by the accident of January 7, 1978. Dr. Aiken treated Steib from January 16, 1978 until his discharge on May 9, 1978. The medical narrative shows Steib received physiotherapy treatments until February 28, 1978, at which time the cervical sprain was reported as “greatly improved.” After the March 21, 1978 visit to Dr. Aiken, he reported Steib’s neck as well and not bothering him. He also reported his right elbow as much improved and “gives him practically no discomfort.”

Warren Steib stated he received heat treatments twice a week for four months after the accident. The treatments gradually decreased the pain. Steib felt it was four months after the accident before he was in good health again.

Dr. Aiken diagnosed Emmanuel Fal-goust’s injuries as an acute right cervical sprain and an acute right dorsolumbar back sprain. He attributed the injuries to the accident of January 7, 1978. Dr. Aiken prescribed physiotherapy, but, when the neck did not improve by February 14, 1978, he prescribed a cervical collar. Subsequent reports of March 3 and March 17, 1978 revealed the cervical collar lessened plaintiff’s pain and permitted Dr. Aiken to discharge Falgoust on March 17, 1978.

Emmanuel Falgoust testified he received heat treatments three times a week for approximately ten weeks. At the time of the trial, he still had problems with his neck and back, but he was not then under any doctor’s treatment.

Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977) established the standard for appellate review of awards for general damages when it stated, at 335:

“We do re-emphasize, however, that before a Court of Appeal can disturb an award made by a trial court that the record must clearly reveal that the trier of fact abused its discretion in making its award. (Citations omitted) Only after making the finding that the record supports that the lower court abused its much discretion can the appellate court disturb the award, and then only to the extent of lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion afforded that court. (Citations omitted) It is never appropriate for a Court of Appeal, having found that the trial court has abused its discretion, simply to decide what it considers an appropriate award on the basis of the evidence.”

The Supreme Court further refined the necessary inquiry in Reck v. Stevens, 373 So.2d 498 (La.1979), wherein it stated, at 501:

“Thus, the initial inquiry must always be directed at whether the trier court’s award for the particular injuries and their effects upon this particular injured person is, a clear abuse of the trier of fact’s much discretion,” La.Civ.C. art. 1934(3) in the award of damages. It is only after articulated analysis of the facts discloses an abuse of discretion, that the award may on appellate review, for articulated reason, be considered either excessive ... or insufficient.”

Given the foregoing, we cannot say that the trial judge abused his discretion in his awards.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.


author: CHEHARDY, Judge.

text:
    Marti F. MONGRUE v. STATE FARM MUTUAL AUTOMOBILE LIABILITY INSURANCE COMPANY et al. Robert L. BEAVER et al. v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. Robert L. BEAVER et al.
    Nos. 11700 to 11702.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 10, 1981.

      Porteous, Toledano, Hainkel & Johnson, C. Gordon Johnson, Jr., New Orleans, for State Farm Mut. Auto. Ins. Co., plaintiff-appellant.
    Gauthier & Murphy, Patrick J. McCabe, Kenner, for Robert L. Beaver and Loretta Wise Beaver, defendants-appellees.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   CHEHARDY, Judge.

State Farm Mutual Automobile Insurance Company (State Farm) appeals a March 5, 1980 summary judgment of the district court in favor of defendants, Robert L. Beaver and Loretta Wise Beaver, in an action by State Farm to recover $10,000 paid by it to the Beavers in compromise of their claim against State Farm in a consolidated case, an action for the wrongful death of their son Mitchell Beaver. This compromise resulted in the Beavers’ dismissal with prejudice of State Farm from that action on December 27, 1978. In the trial court the two aforementioned cases were consolidated with the case of Marti F. Mongrue versus State Farm Mutual Automobile Liability Insurance Company, et al., No. 19216 on the docket of the Twenty-ninth Judicial District Court for the Parish of St. Charles; however, the summary judgment granted in tha,t case has not been appealed.

The facts of this case arose out of an automobile-train collision on July 17, 1977 involving the automobile of Marti Mongrue. It is uncontroverted that appellant, State Farm, was the insurer of the Mongrue vehicle. In a deposition taken of Mongrue on September 11, 1978, he stated that Mitchell Beaver was driving Mongrue’s car at the time of the accident and that he (Mongrue) had lost all recollection of the incident until 10 months after the collision.

The compromise in settlement of the Beavers’ claim against State Farm was executed between those two parties in October of 1977. Appellant now contends that this was done in reliance on the police report of the accident, which indicated that Mongrue was driving his car at the time of the accident; however, because Mongrue has later said, in his deposition, that not he but Mitchell Beaver, was driving the vehicle at the time of the collision, appellant argues that the compromise was executed based on an error of fact, which was the principal cause of the settlement. Accordingly, State Farm concludes the payment to the Beavers was of a thing not due, and, therefore, it is entitled to recover the amount paid under Articles 2301 and 2302 of the Louisiana Civil Code.

LSA-C.C. art. 2301 states:

“He who receives what is not due to him, whether he receives it through error or knowingly, obliges himself to restore it to him from whom he has unduly received it.”

LSA-C.C. art 2302 also recites:

“He who has paid through mistake, believing himself a debtor, may claim what he has paid.”

Let us first note that compromise and settlements of litigation are well favored by the law and jurisprudence. Benoit v. Fireman’s Fund Ins. Co., 347 So.2d 269 (La.App. 3d Cir. 1977); McKowen v. Gulf States Utilities Co., 358 So.2d 675 (La.App. 1st Cir. 1978).

In defining a compromise, LSA-C.C. art. 3071 explains:

“A transaction or compromise is an agreement between two or more persons, who, for preventing or putting an end to a lawsuit, adjust their differences by mutual consent, in the manner which they agree on, and which every one of them prefers to the hope of gaining, balanced by the danger of losing.
“This contract must be reduced into writing.”

In the case of Collier v. Administrator, Succession of Blevins, 136 So.2d 774 (La. App. 4th Cir. 1962), the court observed at page 780:

“A compromise may not be attacked on the ground that one of the parties has failed to receive everything to which he may have been entitled. Young v. Glynn, 171 La. 371,131 So. 51; Beck v. Continental Casualty Co., La.App., 145 So. 810.
“A compromise needs no other cause or consideration than an adjustment of differences or a desire to set at rest all possibility of litigation. Gregory v. Central Coal & Coke Corporation, 197 La. 95, 200 So. 832; DaPonte v. Ogden, 161 La. 378, 108 So. 777.”

Our courts have established that a party will not be allowed to recover on the ground that he has paid something to another by error or mistake when it appears that the mistake is the result of his own negligence or carelessness. Pennsylvania Casualty Co. v. Brooks, 24 So.2d 262 (La.App. 1st Cir. 1945); Talbot v. Douglas Moving & Warehouse Company, 228 So.2d 222 (La.App. 3d Cir. 1969); 15A C.J.S. Compromise and Settlement, § 36, p. 260.

In the present case it is apparent that State Farm executed its compromise in settlement with the Beavers in a desire to set at rest all possibility of litigation with those parties, as is evidenced by the fact that the agreement was executed only three months after the occurrence of the accident. The fact that State Farm assumed that Mon-grue had been the driver of his own vehicle at the time of the accident, based on a police report indicating that such had been the case is not sufficient error to invalidate the contract, the principal cause of which was simply and obviously to put at rest all possibility of future litigation between the Beavers and State Farm. Collier v. Administrator, Succession of Blevins, supra.

Although this court in view of the evidence cannot hold that State Farm was necessarily negligent or careless in concluding that Mongrue was the driver of the vehicle at the time of the accident, we must conclude that the cause for making the settlement was not that State Farm believed it was liable to the Beavers, as they now claim. The release itself expressly states that State Farm denies all liability to those parties and provides further that the reason for making the settlement was for the purpose of “precluding forever any further or additional claims arising out of the aforesaid accident.”

In the recent case of Saunders v. New Orleans Public Serv. Inc., 387 So.2d 603 (La.App. 4th Cir. 1980), this court also said at page 605:

“Compromises are favored in law, and the burden of proving the invalidity of a compromise is on the party attacking the contract. The mere fact that a bad bargain was made is not in itself a sufficient ground for invalidating the compromise. However, since an essential element of every contract is consent by the parties with regard to a matter mutually understood, reciprocally communicated, and resulting from a free and deliberate exercise of the will, a contract may be invalidated if the consent was produced by error. C.C. art. 1819. Nonetheless, the only error that invalidates a contract is an error in some point which was a principal cause for making the contract. C.C. art. 1823.”

In Saunders, this court invalidated a compromise agreement executed between the parties because there was mutual error that a proper medical examination had been made. In the present case, however, State Farm does not allege that the error they complained of was mutual or mutually communicated between the parties. We cannot hold, therefore, that if State Farm committed an error in judgment by executing the compromise agreement prematurely, resulting in a bad bargain, from that party’s point of view, that this is sufficient to invalidate the contract.

Transactions have, between the interested parties, a force equal to res judicata. LSA-C.C. art. 3078. Collier v. Administrator, Succession of Blevins, supra. Because there was no dispute as to any material fact of this case, therefore, we hold that the trial court appropriately granted summary judgment to the Beavers, who were entitled to it as a matter of law. LSA-C.C.P. art. 966.

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

AFFIRMED.

      . Robert L. Beaver, et al v. State Farm Mutual Automobile Insurance Company, et al, No. 19,-277 on the docket of the Twenty-ninth Judicial District Court for the Parish of St. Charles.


author: SCHOTT, Judge.

text:
    Edmond Gessner ROSE v. Margaret Falgoust ROSE.
    No. 11711.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 10, 1981.

      Harry R. Morgan, Luling, for plaintiff-appellant.
    Gerald J. Martinez, Metairie, for defendant-appellee.
    Before SAMUEL, SCHOTT and GARRISON, JJ.
   SCHOTT, Judge.

In this appeal a divorced husband seeks to reduce the amounts awarded appellee for alimony and child support for two adolescent boys. The issues are whether the trial judge abused his discretion in the amounts of the awards and whether appellee is entitled to any alimony considering the amendment to LSA-C.C. Art. 160 by Act 72 of 1979.

In the judgment alimony was set at $100 every two weeks and child support at $150 every two weeks. In addition, appellant was ordered to pay utility bills and allowance to each child in the amount of $10 every two weeks, medical and dental bills for the children, and clothing expenses for the children not to exceed $50 every two weeks, and to maintain appellee and the two children on his hospitalization program.

According to appellee, she requires over $1,000 per month for herself and her boys. This does not include any amount for rent as she is occupying the fully-paid-for house acquired by the community previously existing between the parties.

Appellant earns approximately $2,000 per month net income after taxes. He produced a list of monthly expenses which exceed $2,900, but these figures include all of the expenses incurred in the running of his household which he now has with a new wife and her four children, such as rent, $500, groceries, $200, and utilities $190. Although his new wife was employed appellant did not know her salary or whether she received any child support from her former husband. Also, his expenses included $700 per month for “Taxes (federal, state, local, both income and property taxes).” Since his income was considered in terms of net, after tax, figures this “expense” item of $700 monthly should be disregarded.

We are unable to conclude that the trial judge abused his discretion in arriving at the amount for alimony and child support. These parties had been before the same judge on at least two previous occasions, one at the time the suit for separation was obtained. The present judgment is identical to the previous judgments even though three years had intervened since the first judgment. While it is arguable that both lists of expenses are overstated, as is usually the case, the court undoubtedly took this into consideration.

However, appellant contends that the trial judge did not take into consideration the following provisions of Art. 160 as amended by Act 72 of 1979:

“. ... In determining the entitlement and amount of alimony after divorce, the court shall consider the income, means and assets of the spouses, the liquidity of such assets; the financial obligations of the spouses, including their earning capacity; the effect of custody of children of the marriage upon the spouse’s earning capacity; the time necessary for the recipient to acquire appropriate education, training, or employment; the health and age of the parties and their obligations to support or care for dependent children; any other circumstances that the court deems relevant.”

This is a middle aged couple who were divorced after thirty years of marriage. There is no evidence that appellee has ever worked and she has some heart and stomach problems which require her to observe a special diet and seek occasional medical attention. When asked why she does not seek employment she replied, “I really don’t feel like I should have to, and I don’t particularly care to. I’m not too well myself, and also my boys.”

While the amendment to Art. 160 requires the trial judge to consider the earning capacity of both spouses it also requires him to consider the time necessary for the recipient to acquire education and training, and the health and age of the parties. It ultimately leaves the final judgment to the discretion of the .trial court after considering these various circumstances. We conclude that the present award of $100 alimony every two weeks does not constitute an abuse of discretion under the amended provisions of Art. 160.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.


author: GULOTTA, Judge.

text:
    Randy E. MARTINEZ v. Johney MODENBACH, Deloris Modenbach, and State Farm Insurance Company.
    No. 11713.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 10, 1981.
    Writ Refused May 1, 1981.

      Chauppette & Genin, Daryl A. Higgins, Marrero, for plaintiff-appellant.
    Buckley & Ward, Joseph R. Ward, Jr., New Orleans, for defendants-appellees.
    Before „ GULOTTA, BOUTALL and HUGHES, JJ.
   GULOTTA, Judge.

Randy Martinez appeals from the dismissal of his personal injury suit against a neighbor for injuries sustained when he slipped and fell on wet grass in the neighbor’s yard while chasing the neighbor’s dog from his yard. At the time of the accident, the dog had been digging in and destroying plaintiff’s flower beds, as it had done on approximately twelve other occasions.

The facts are virtually undisputed. Defendants acknowledge that plaintiff had repeatedly complained that the dog had transgressed upon the Martinez’s property causing damage to the yard; that the dog was free to roam at will; that defendants had been told by plaintiff of this destruction on approximately five occasions; that defendants had assisted in the repair, of that damage on three or four occasions; and, that defendants had told plaintiff “. . . to do whatever they thought necessary to keep him out.” Plaintiff was injured in the chase when he slipped on wet grass in defendants’ yard. The wet grass was caused by Mrs. Modenbach’s washing her car in the driveway at the time of the accident.

In written reasons, the trial judge rejected plaintiff’s argument based on Holland v. Buckley, 305 So.2d 113 (La.1974) and Matte v. Guillory, 370 So.2d 1299 (La.App. 3rd Cir. 1979) in animal-related injury cases. The judge pointed out that in Holland the owner is exculpated from liability “if the injury was caused by the fault of the victim.” He went on to state, in pertinent part, in well-written reasons:

“The cases cited by the plaintiff to further extend the Holland v. Buckley doctrine are not appropriate to the facts herein. In each of the cases cited wherein recovery was granted, there was aggressive action on the part of the animal. In the instant case the only aggressive action was on the part of the plaintiff in pursuing the dog in such haste that he was careless of his own safety. The actions of the dog did not appear to warrant such a violent response from the plaintiff and fitting him into the average reasonable man mold is quite inconsistent with the actions of the plaintiff that brought about his injuries.”

Plaintiff’s argument before this court simply is that, under LSA-C.C. art. 2321, and Holland v. Buckley, supra, and its progeny, an owner is presumed to be at fault and is strictly liable when his domesticated animal harms another. According to plaintiff, the dog’s transgression on his property was a cause in fact of the injury which did not occur through his fault. Plaintiff claims that it was not unreasonable for him to chase the dog in the manner in which he did; that he had been advised by defendants to do whatever he could to keep the dog out of his yard; and that he was neither aware nor could have been aware of the wet conditions of his neighbors’ grass and therefore could not have been guilty of either contributory negligence or assumption of the risk.

As a prerequisite to the application of strict liability defined in the Holland case, the domesticated animal must have harmed another. Plaintiff’s harm did not result directly from the animal’s action. If plaintiff had been injured while being chased by the animal or had been injured while trying to elude an animal’s aggressive activity then perhaps a reasonable connection could be made between the direct action of the animal and the injury. Plaintiff’s claim is based on injury that is one step removed from the dog’s action. Although the animal’s trespass in plaintiff’s yard was a cause in fact of the injury, that cause is a remote and indirect one since plaintiff was injured by slipping in pursuit of the animal.

We point out further that liability under LSA-C.C. art. 2321, though strict in nature is not absolute. Holland v. Buckley, supra; Dufour v. Trosclair, 374 So.2d 186 (La.App. 4th Cir. 1979). The owner can exculpate himself from having his animal hurt someone by proving that the harm resulted from an independent cause: the victim’s fault, a third person’s fault for which the defendant is not responsible, or a fortuitous event. Holland v. Buckley, supra; Normand v. City of New Orleans, 363 So.2d 1220 (La.App. 4th Cir. 1978), writ denied, 366 So.2d 573 (La.1979). This independent cause must be a substantial factor in bringing about the harm. Daniel v. Cambridge Mut. Fire Ins. Co., 368 So.2d 810 (La.App. 2nd Cir. 1979). Thus, in Hebert v. Maryland Cas. Co., 366 So.2d 1044 (La.App. 1st Cir. 1979), a plaintiff kicked by a horse was denied recovery where her fault in approaching the animal too closely in the rear caused it to kick her. Likewise, in Daniel v. Cambridge Mut. Fire Ins. Co., supra, plaintiff’s voluntary participation in a trail ride was held an assumption of the risk of injury and a substantial contributing factor in her injury when the horse on which she was riding reared up and fell on her after a preceding horse had shied and backed into it.

We have searched in vain for animal-related injury cases where harm resulted indirectly from the animal’s action as in our case. In the extant cases, injury resulted from the direct act of the animal, although those acts may have been precipitated by an independent action on the part of the plaintiff or a third-party. In our case the animal did not directly harm plaintiff. The injury substantially resulted from plaintiff’» independent, intervening act. We hold, under the circumstances, the strict liability imposed under LSA-C.C. art. 2321, as interpreted by the Holland decision, is not applicable.

NEGLIGENCE

Because defendants are not strictly liable under LSA-C.C. art. 2321, plaintiff’s entitlement to recovery requires a finding of negligence.

The Louisiana Supreme Court in Hill v. Lundin & Associates, Inc., 256 So.2d 620 (La.1972), pointed out that the first inquiry under a duty-risk analysis is whether any causal relationship existed between the harm to the plaintiff and the defendants’ alleged negligent conduct and whether the defendant breached a legal duty imposed to protect against the particular risk involved. According to the Supreme Court, foreseeability is not always a reliable guide for determining whether there is a duty-risk relationship, but the more applicable guide is the “ease of association” between the injury and the defendant’s act. See also, Jones v. Robbins, 289 So.2d 104 (La.1974); Ainsworth v. Treadway, 361 So.2d 957 (La. App. 4th Cir. 1978).

Assuming that a causal relationship has been established between plaintiff’s harm and defendant’s failure to restrict the animal, we are confronted with the more difficult determination whether defendant breached a legal duty imposed to protect against a particular risk involved. It is clear that the risk involved by a dog owner in allowing complete freedom of movement of the animal is the danger of injury to others from dog bites or from fear of dog bites, or the danger of property damage. Perhaps, an ease of association might exist were injury inflicted as a result of being chased by a dog, however, these circumstances are not present in our case. There is no ease of association betweeh a breach of the duty to confine an animal and an injury resulting from one’s slipping while chasing a dog. Finding no ease of association between the injury and the activity of the dog, we conclude that injury was not within the ambit of the risk “reasonably anticipated.”

We are not unmindful that a state statute and applicable parish ordinances prohibit dog owners from allowing their animals to run at large. Nonetheless, violation of these statutes does not in itself make the owner liable for plaintiff’s injury. Although criminal statutes can serve as guidelines for a court in determining civil liability, the violation of a statute does not automatically create liability in a particular civil case since the statute may have been designed to protect someone other than the plaintiff, or to protect the plaintiff from some evil other than the injury for which recovery is sought. Boyer v. Johnson, 360 So.2d 1164 (La.1978). We conclude the state statute and the parish ordinances concerning confinement of animals are designed to prevent aggressive acts by those animals against persons and property and to avoid the creation of nuisances or dangers to the public health and welfare. The ordinances are not designed to prevent the type of risk and harm suffered by plaintiff in chasing a dog at large and slipping on wet grass.

Accordingly, we conclude plaintiff has failed to establish “legal and actionable” negligence on the part of defendants. Having so concluded, we affirm the judgment of the trial court.

AFFIRMED.

      . LSA-C.C. art. 2321 reads as follows:
      “Art. 2321. Damage caused by animals
      Art. 2321. The owner of an animal is answerable for the damage he has caused; but if the animal had been lost, or had strayed more than a day, he may discharge himself from this responsibility, by abandoning him to the person who has sustained the injury; except where the master has turned loose a dangerous or noxious animal, for then he must pay for all the harm done, without being allowed to make the abandonment.”

      . See, for example, Holland v. Buckley, supra, and Matte v. Guillory, supra, where the dog without provocation bit or attacked the plaintiff.

      . See, for example, Hebert v. Maryland Cas. Co., supra, where plaintiffs close approach to the rear of the stallion caused it to kick her.

      .See, for example, Betbeze v. Cherokee Nat. Ins. Co., 345 So.2d 577 (La.App. 4th Cir. 1977) where plaintiffs child was bit by a dog when another child pulled the animal’s tail, and Duf-our v. Trosclair, supra, where plaintiff was kicked by a horse when a third person pulled on the animal’s bridle.

      . See Hill v. Lundin and Associates, Inc., supra.

      . LSA-R.S. 3:2771 provides as follows:
      “§ 2771. Dogs not to run at large.
      No person shall suffer or permit any dog in his possession, or kept by him about his premises, to run at large on any unenclosed land, or trespass upon any enclosed or unenclosed lands of another.”

      . Code of Ordinances, Jefferson Parish, Louisiana § 4-16(c) provides as follows:

      “(c) Public nuisance. Every owner, or keeper of animals shall exercise proper care and control of such animals so as to prevent them from creating or becoming a public nuisance. Excessive or untimely barking, howling or yelping so as to disturb the peace and quiet of a neighborhood or its residents or to disturb the health or repose of the residents; attacking or molesting passersby or other animals; being repeatedly at large; chasing vehicles; scratching on or digging into or urinating or defecating upon lawns, shrubs, buildings or any property either public or private other than property of the owner or keeper of an animal, all shall be deemed to be the creation of a public nuisance and the owner or keeper of an animal causing such public nuisance shall be guilty of misdemeanor and subject to the pénalties of section 4-25 of this article.”
      See also, § 4-17(c) which, inter alia, prohibits dogs at large on public streets, and § 4-21(g), which sets forth the criminal liability of an owner for dogs at large.


text:
    The CECO CORPORATION v. MID-GULF CONSTRUCTION, INC. and Great American Insurance Company.
    No. 11721.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 10, 1981.

      Duke, Porterie & Hantel, John L. Hantel, New Orleans, for plaintiff-appellant.
    Don Almerico, Norco, for defendants-ap-pellees.
    Before GULOTTA, BOUTALL and HUGHES, JJ.
   GULOTTA, Judge.

In this construction contract case, plaintiff, a steel supplier, claims entitlement to $24,158.61, the amount of escalated costs of reinforcing steel, welded wire fabric and other steel materials furnished and delivered by plaintiff to defendant for the construction of a courthouse and jail facility in St. Charles Parish, in accordance with a contract entered into between the parties on April 19, 1974.

The trial judge in the judgment dismissing plaintiff’s suit stated that Ceco “... has failed to carry the burden of proof required . . .. ” Plaintiff appeals. We reverse.

In response to Mid-Gulf Construction, Inc.’s April 19, 1974 purchase order, Ceco Corporation agreed to deliver to Mid-Gulf certain steel materials in connection with the construction job at a cost of $194,883.52. The agreement provided that all materials would be shipped to arrive at the job by August 1, 1974. Conditions attached to the agreement and around which this dispute revolved, are as follows:

“All reinforcing steel prices listed herein are firm until August 12,1974, prices for materials shipped after that date will be increased a maximum of $25.00/ton for each 6-month period after August 12, 1974.
In the event that Ceco’s suppliers for Mesh and Rebar accessories increase their price to Ceco after February 12, 1974, material prices shall be increased by the actual amount of the increase.”

Also included in the purchase order is a recitation that:

“All materials will be delivered to the Job Site by the Seller’s Truck in the sequence and quantities required.”

Steel was first delivered on June 13 and 14, 1974, and then periodically as requested by Mid-Gulf and required on the construction job. Invoices were sent to Mid-Gulf in connection with each delivery. On September 9, 1974, defendant was notified by the district manager of Ceco that in accordance with the terms of the contract the escalation clause had become effective and the remaining steel shipment would be increased by the sum of $25.00 per ton.

In accordance with that letter, a September 27, 1974 invoice reflected the escalation increase. This increase was also reflected in subsequent invoices dated October 22, 1974, November 12, 1974, December 4, 1974, February 24, 1975, two invoices dated February 25,1975, March 3,1975, May 28,1975, June 16, 1975, June 19, 1975, and June 27, 1975. These escalation costs as reflected in the invoices were paid without any protest from Mid-Gulf. However, the sum of $24,-158.61, the total amount of the accumulated escalation costs charged to Mid-Gulf and now the subject of this suit, was withheld by Mid-Gulf from final payment, to Ceco under the contract.

According to plaintiff, although the purchase order specified that all materials were to be shipped for arrival at the job by August 1, 1974, the delivery dates were modified by Mid-Gulf as is customary in construction contracts involving large shipments. Plaintiff claims that requests for delivery were made by the Mid-Gulf superintendent on the job as required for use in the construction. Supportive of this position was a letter dated December 4, 1974 and addressed to Mid-Gulf by Ceco which states that confirmation was being made of a telephone conversation with Mid-Gulf’s assistant job superintendent rescheduling reinforcing steel shipments as per the job superintendent’s request.

Plaintiff also contends that Mid-Gulf’s silence and inaction to the invoice escalation charges and indeed payment of the invoice amount including the specific escalation charges is an implied assent to the contract modification and assessment of those charges. Plaintiff relies in support of this contention on LSA-C.C. arts. 1811 and 1816. We agree.

Robert Krejcu, Ceco’s district manager at the time the contract was entered into with defendant, testified that reinforcement steel is normally scheduled for shipment to the job site between the job superintendent of the construction contractor and Ceco’s chief draftsman who handles the details and scheduling. These shipments are usually scheduled when required in different phases of construction. When and where steel is delivered, according to Krejcu, are controlled by the general contractor’s general superintendent on the job, in this case, Mid-Gulf’s superintendent. Krejcu pointed out the first requested delivery by Mid-Gulf was on June 15, 1974 and the next request was made on August 30, 1974. The steel deliveries were made as requested by Mid-Gulf. Krejcu further supported Ceco’s claim that Mid-Gulf was notified after August 12, 1974 that the escalation clause in the contract was triggered by the later delivery and no exception was taken or objection made to that communication. Krejcu also pointed out that the invoices including the escalation clauses were paid by Mid-Gulf without objection. The shipments were not made prior to August 1, or August 12, according to Krejcu because they had not been requested. Delivery could have been made at any time that delivery had been requested. As late as June 6,1975, Ceco was still ordering steel to be fabricated in Houston for use on the job.

Eric Berger, Ceco’s superintendent and chief draftsman on the job in 1974 who handled the scheduling of shipments of steel, stated that the steel deliveries were made when requested by Mid-Gulf’s job superintendent, Al Schreffner. This witness, to a large extent, corroborated Krejcu’s testimony. He additionally testified that he had no recollection of any request for a delay in delivery made by Mid-Gulf prior to August 12, 1974.

Thomas B. Sellers, the president of the sub-contractor responsible for placement of the delivered steel on the courthouse and jail facility, testified that other than the initial delivery at no time was there an insufficiency of steel on the job site, but rather “more than enough steel to do the work.” He emphasized that there was a plentiful supply of steel on hand. On occasions he indicated that steel was being delivered to the site in amounts more than could be used at the time. No delays, according to this witness, were caused in delivery by Ceco. Sellers at first testified that if all of the steel required in the entire construction had been delivered prior to August 1 it could have been stacked on the job site in such a way as to permit its use as required in the development of the construction job. He later stated, however, that there was not enough space on the job site to store all of the steel required in the entire job. This sub-contractor testified that he was on the job site just about every day of construction and that it was not customaiy in construction jobs such as this one that all steel would be delivered to the job site at one time.

J. Michael Dixon, the department manager for Mid-Gulf at the time the construction job was in progress, testified that he had participated only “peripherally” in the original purchase order between Mid-Gulf and Ceco in April, 1974. His predecessor at Mid-Gulf, Cory Pittman, had handled the job until December 15,1974 and it had been Pittman’s original responsibility for the scheduling of delivery of the materials to the job site. Dixon testified that he had commenced work on the job in November, 1974. Made aware in November of the escalation charges being made, Dixon instructed that those charges would not be paid. This witness referred to an undated letter from Mid-Gulf to Cimini-Meric Associates, Architects, which referred to the delivery of miscellaneous reinforcing steel. This transmittal stated that the delivery of those items would be required on the job by June 1, 1974. At the bottom of that letter designated “Remarks” is a recitation: “Please review at once as we must take delivery of all reinforcing steel by August 5, 1974 or price will increase by $25 per ton.” According to Dixon, this statement in the letter indicates an awareness on the part of Mid-Gulf of the effective date triggering the escalation clause.

Dixon admitted that prior to August, 1974, or December, 1974, neither he nor any other one to his knowledge at Mid-Gulf notified Ceco that they were not going to honor the escalation clause. He reasoned that if they had notified Ceco to this effect plaintiff would have refused to deliver the steel to the job site. Dixon stated that during that time neither he nor other Mid-Gulf employees responsible for the steel deliveries had ever asked Ceco to delay the delivery of any shipment of steel. Contradicting Sellers’ earlier testimony, Dixon stated that at the time the delivery of steel shipments were to have been made, i. e., prior to August 1, 1974, the job site could have accommodated and stored all of the steel included in the purchase order to be used on the construction job,

Arbry Bill Bass, the superintendent for Mid-Gulf Construction in 1974, reiterated that it was not normal or usual custom for delays of delivery of materials to the job. One delay, according to his recollection, was made for delivery of steel in December. This delay was requested because other subcontractors had placed trailers and materials on the job site and there was a lack of available space to store the steel to be delivered. Bass testified that in August, 1974 the construction site was ready to accept and accommodate all of the steel ordered from Ceco.

From our consideration of the testimony, it is clear that although the purchase order specified that all materials were to be delivered to the job site by August 1, 1974, the contract was modified by requests for delivery as the steel was needed in the course of construction. The only contradictory testimony was that of Dixon. He admitted, however, that he was not involved in the consideration of the original purchase order in April 1974 nor subsequently thereafter, until November 1974, subsequent to the August 1, 1974 delivery date requirement. We find significant also, in the resolution of this dispute, that the purchase order contains a recitation that “All materials will be delivered to the Job Site by the Seller’s Truck in the sequence and quantities required.” This recitation is corroborative of the anticipated delivery in a sequence and in a quantity as required for use in the course of construction. This clause, to some extent, makes the delivery date requirement, August 1, 1974, less meaningful.

As pointed out by plaintiff, LSA-C.C. art. 1811, supra, states that a contract may be assented to expressly or impliedly. The assent may be implied when manifested by actions, or by silence or by inaction. See LSA-C.C. art. 1816, supra, and LSA-C.C. art. 1817. Southern Scrap Mat Co. v. Commercial Scrap Mat. Corp., 239 La. 958, 120 So.2d 491 (1960); Bank of Louisiana in New Orleans v. Campbell, 329 So.2d 235 (La.App. 4th Cir. 1976), writ denied, 332 So.2d 866 (La.1976); W.R. Aldrich & Company v. Spalitta, 285 So.2d 835 (La.App. 1st Cir. 1973); Sam Parish Const. Co. v. Cities Service Pipeline Co., 254 So.2d 73 (La.App. 3rd Cir. 1971), writ refused, 260 La. 289, 255 So.2d 773 (1972); and, Alliance Manufacturing Company v. Foti, 146 So.2d 464 (La. App. 4th Cir. 1962), writ refused, 243 La. 1005, 149 So.2d 763 (1963).

We hold, under the circumstances, that the delivery date was modified from August 1, 1974 to such times as requested and required by Mid-Gulf and a modification of the original purchase order was made by the subsequent actions of Ceco and Mid-Gulf thereby permitting the later deliveries. We conclude also that Mid-Gulf’s failure to object to the invoice escalation charges constituted an acquiescence in those charges. If Mid-Gulf had objected to the initial invoice escalation charge, perhaps all deliveries could have been made to the job site at that time to obviate any additional escalation costs.

Our factual situation is very similar to that in Stupp Corp. v. Con-Plex, Div. of U. S. Ind., 344 So.2d 394 (La.App. 1st Cir. 1977). In the Stupp case, a steel products supplier set forth as a condition of the sale that prices would be subject to escalation. The purchaser, on the other hand, believed that the price was firm for the duration of the contract. The Stupp court held that although the initial contract between the parties was void since there was no agreement as to price, the parties had entered into a subsequent contract at a higher price when the purchaser accepted without protest steel delivered at an escalated price. After citing LSA-C.C. arts. 1811 and 1816, the Stupp court stated:

“An examination of the record discloses that in its Order Acknowledgment, Stupp clearly stated its rights to increase prices and Con-Plex was informed of Stupp’s price increase before any shipments were made at the increased price. Thereafter, Con-Plex received, accepted and used seventeen shipments of pipe piling and end plates. Payments were made on fifteen of these shipments, without protest. Only after all shipments had been received by Con-Plex was there any objection to the price increase.
Therefore, we conclude that the trial court was correct in holding that Con-Plex entered into a subsequent contract at the higher price.”

We hold in our case that Ceco met its burden of proving a modification of the delivery date. Accordingly, the judgment dismissing plaintiff’s suit is reversed and set aside. Judgment is now rendered in favor of The Ceco Corporation and against Mid-Gulf Construction, Inc. and Great American Insurance Company, in solido, in the sum of $24,158.61 plus interest from date of judicial demand and costs.

REVERSED, SET ASIDE, AND RENDERED.

      . LSA-C.C. arts. 1811 and 1816 read as follows:
      “Art. 1811. The proposition as well as the assent to a contract may be express or implied: Express when evinced by words, either written or spoken;
      Implied, when it is manifested by actions, even by silence or by inaction, in cases in which they can from circumstances be supposed to mean, or by legal presumption are directed to be considered as evidence of an assent.”
      “Art. 1816. Actions without words, either written or spoken, are presumptive evidence of a contract, when they are done under circumstances that naturally imply a consent to such contract. To receive goods from a merchant without any express promise, and to use them, implies a contract to pay the value. If an offer is made of an article in deposit, and the article is received, the contract of deposit is complete. If a mandate is acted on, the mandatory is bound in the same manner as if he had accepted in writing. In all those cases and others of the like nature, all the conditions, which he, who gives or proposes, annexed to the delivery or the acceptance of the proposition, are also presumed to have been accepted by the act of receiving. If the merchant, in delivering the goods, declare that they must be paid for by a certain time; if the depositor designate how the deposit is to be kept, or the mandator in which manner his commission is to be executed, he who receives and acts is obligated to the performance of all these conditions.”

      . LSA-C.C. art. 1817 reads as follows:
      “Art. 1817. Silence and inaction are also, under some circumstances, the means of showing an assent that creates an obligation; if, after the termination of a lease, the lessee continue in possession, and the lessor be inactive and silent, a complete mutual obligation for continuing the lease, is created by the act of occupancy of the tenant on the one side, and the inaction and silence of the lessor on the other.


text:
    Geraldine Mary Fayard HEBERT v. SCHWEGMANN BROTHERS GIANT SUPERMARKETS, INC. and XYZ Insurance Company.
    No. 11726.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 10, 1981.
    Gauthier & Murphy, A Professional Law Corp., T. Peter Breslin, Kenner, for plaintiff-appellee.
    Beard, Blue, Schmitt, Mathes, Koch & Williams, William G. Tabb, III, New Orleans, for defendants-appellants.
    Before GARRISON, CHEHARDY and KLIEBERT, JJ.
   KLIEBERT, Judge.

On October 18, 1976, Geraldine Hebert, a fifty-three year old woman, was shopping at Schwegmann Brother’s store on West Airline Highway when she slipped on a green onion which was on the floor and fell to her left knee. When she fell, her right leg shot out in front of her. Plaintiff sued for damages. After trial on the merits, judgment was granted in plaintiff’s favor and against Schwegmann Brothers in the amount of $3,715.00. Defendant appeals.

Liability is not contested on appeal. The only issue before us is quantum. Basically, Schwegmann contends that the court below abused its discretion in its award for damages.

Plaintiff testified that immediately after she fell she had a burning sensation in her ankle. Subsequently, her entire leg, especially her knee, began hurting. She testified to feeling dizzy and being embarrassed because of the incident. Plaintiff treated herself for nine days after the accident, by staying in bed and getting “rub downs” and using heat pads.

On October 27, plaintiff visited Dr. Ger-non Brown, who had treated her previously for a serious back injury. Dr. Brown prescribed medication and told her to return in ten days. Plaintiff did not return to Dr. Brown because she was afraid he would hospitalize her. She was wary of the hospital because in her previous accident she was in and out of the hospital, in traction, for a year.

Plaintiff said her back had felt good before the instant accident. Before the accident she could do many activities (e. g., work in her garden and housework) which she cannot do since the accident.

Plaintiff stated she now suffers continuously with her left leg, has constant pain in her left knee and down the front of the leg, but her back does not hurt her as long as she does not irritate the left leg too much.

Elizabeth Troglen, plaintiff’s daughter, was with plaintiff at the time of the accident. She stated her mother was bedridden for a few months after the accident and now cannot walk as much as she did before the accident.

The medical narrative of Dr. Gernon Brown was admitted into evidence in lieu of his testimony. The only indicia of pain in his report was his assertion that “The patient stated that she had been experiencing back pain.” Dr. Brown’s examination report and opinion was as follows:

“EXAMINATION
Examination revealed restriction of motion of the lumbar spine with pain on motion. There was tenderness over the low back area.
Examination of the lower extremities revealed straight leg raising possible to about 40 degrees with the patient complaining of back pain but without radiating pain. The patellar and achilles reflexes were hypoactive but equal. X-rays of the patient’s lumbar spine revealed no evidence of a fracture or dislocation.
OPINION
It was my opinion on examination of the patient that her symptoms and physical findings were compatible with a low back syndrome. She was given a prescription for medication for pain and anti-inflammatory drug. The patient was requested to return in 10 days but did not do so.”

No other witnesses were called by plaintiff, nor did defendant call any rebuttal witnesses.

The standard of review of awards for general damages was established by the Supreme Court of Louisiana in Coco v. Winston Industries, Inc., 341 So.2d 332 (La. 1977). Basically, before a Court of Appeal can disturb a trial court’s award, the record must clearly reveal that the trier of fact abused its discretion in making its award. Reck v. Stevens, 373 So.2d 498 (La.1979), further stated that an articulated analysis of the facts must show a clear abuse of discretion before it can disturb the award.

Since we find no abuse of discretion in the amount awarded, the judgment of the trial court is affirmed.

AFFIRMED.


text:
    H. A. H. VANBERVOORT, Sr. v. Charles A. LEVY, Jr.
    No. 11728.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 10, 1981.

      LaBorde & Brooks, Gerald Thos. La-Borde, New Orleans, for plaintiff-appellee.
    Eric Oliver Person, New Orleans, for defendant-appellant.
    Jefferson, Bryan & Gray, Trevor G. Bryan, New Orleans, for defendant-appel-lee.
    Before GULOTTA, CHEHARDY and KLIEBERT, JJ.
   GULOTTA, Judge.

These three consolidated suits arose out of the renovation of a residence. In the first-filed matter, H. A. H. Vandervoort, the architect, seeks professional fees from the homeowner, Charles A. Levy, Jr. The owner reconvened for costs of decorations and renovation caused by the architect’s defective performance, and for pain and suffering, mental anguish and humiliation resulting from the filing of a lien against the residence by the contractor, Andrew P. Allain, d/b/a Allain Construction Co., for unpaid services. In the second suit, claim is made by the owner against the architect for damages based on allegations similar to those made in reconvention in the first-filed suit. Thereafter, the general contractor filed a third suit against the owner and the architect to enforce a privilege against the residence for unpaid labor and materials. The owner reconvened against the contractor; and both the owner and the architect third-partied each other.

After consolidation, the matter was referred to a commissioner and judgment was rendered, in accordance with the Commissioner’s report, in favor of the contractor and against the owner for $7,167.51. This amount represents the extra work performed by the contractor on the renovations. All other main and incidental demands were dismissed.

On appeal, the homeowner contends the trial judge erred in holding him liable to the contractor since there was no privity of contract between them. He further argues if any amount is owed to the contractor it is the architect’s liability since the architect employed the contractor, supervised him during the course of the work, and received a profit based on the contractor’s work. Finally, the homeowner contends extra work was performed without his knowledge or consent and this unauthorized work is the responsibility of the architect or contractor. In answer to the appeal, the contractor claimed that the judgment, though correct as to liability, should be increased to $12,744.51. The architect has neither appealed nor answered the appeal.

BACKGROUND

In 1972, Mr. and Mrs. Charles A. Levy, Jr. contacted the architect, Vandervoort, for the purpose of making improvements on their home. Initially contemplated by the homeowners were soundproofing and carpet installation. Vandervoort submitted a bid of $7,000.00, but after discussions with the Levys the scope of the renovation broadened considerably to include new furniture and extensive interior and exterior renovation at a proposed cost of approximately $31,000.00. Vandervoort and the Levys held extensive discussions, but no written contract was entered into between them.

Vandervoort prepared a list of specifications dated September 18, 1972, which set forth the scope of the work to be performed. Thereafter the architect contacted Andrew P. Allain and obtained a bid from him of $8,480.00 as the cost of the contracting work. According to the testimony of Allain’s supervisor on the Levy job, the $8,480.00 figure was not a fixed price for the contracting work but was a “budget” figure assigned to him. In an October 27, 1972 letter from Vandervoort to the Levys in which the proposed work is itemized at a total figure of $31,192.55, however, the $8,480.00 figure is listed as an “upset” price of the contractor.

Although it is not clear from the record, it appears that Allain began the renovation on the Levy residence sometime in November, 1972. With the exception of the first month of construction, Vandervoort apparently was at the job site at least twice a week at a minimum during the course of the project.

Levy testified that he advanced $8,000.00 to Vandervoort but had no written document or plans. Sometime between October 20 and December 15,1972 Levy received the plans and specifications, but did not read them at that time because of his concern for his wife’s health. Work continued on the project, however, and Levy made periodic payments to Vandervoort as requested.

In the course of the renovation, Allain’s crew and sub-contractors hired by Allain performed, without written change orders, certain “extra” work not included in the Vandervoort specifications. According to Allain’s supervisor, all the extra work was authorized orally by Vandervoort. Van-dervoort stated that certain extras had been approved by the Levys or had been done by Allain on his own initiative. Levy, on the other hand, testified that with the exception of some minor items, he did not authorize any extra work.

While the work continued in the latter part of February, 1973, the Levys took a vacation out of the country. Upon their return, the relationship among the parties deteriorated. At that time the Levys .had paid out $29,000.00 but were unsatisfied with the work performed and concerned about the added expenses. Vandervoort thereupon audited the invoices submitted by Allain for payment and prepared an itemization of various changes, additions and substitutions to the specification document of September 18, 1972.

According to the Vandervoort audit, Al-lain invoiced a total of $23,955.20 for labor and material through March 1, 1973. Van-dervoort determined that the correct figure for work performed by Allain was $19,-572.87. Since Allain had already been paid $12,000.00, a balance of $7,572.87 was still owed according to Vandervoort.

The Levys refused to make any further payments and work was terminated. Levy testified, however, that he later obtained a new contractor and interior decorator who started on the job in September, 1973 and finished it to his satisfaction on December 21,1973 at a total cost of $30,900.00 for the new work. This litigation followed.

The Commissioner’s report adopted by the trial judge, states, in pertinent part:

“The Court finds that no contract of any type existed between the owner and the architect which would guarantee an upset price to the owner....
Allain kept time records for his employees and material records for materials used. Some of the work .. . was encompassed within the original bid submitted by Allain to Vandervoort of $8,480.00. Other work was performed as extras either at the request of the owner, his wife, the architect, or was performed by Allain himself.
The architect went over the invoices from Allain and established that there was a variance between the amounts charged by Allain, the amount contractually agreed to by'Allain, and the extra work performed by Allain and that work which Mrs. Levy directly ordered from Allain’s employees.
The amount ... due and owing is $7,572.87 and the Court should recognize that a lien and privilege exists for such amount, subject to further credits outlined below.
While there exists controversy as to who exactly authorized such work, there is no doubt in the Court’s mind that the work was indeed performed and that its performance was adequate.
As the case was presented some of the items charged as extras were found by the Court to be in the original contracted price and consequently further credits of the following amounts should be imposed.
Drawers and hardware in
master bedroom and bath $163.79
Drawers in hall locker 18.71
Hardware and hamper — Bath No. 2 62.86
Gypsum board finish 161.00
The final amount found to be due and owing after consideration of all factors is $7,167.51.
The owners are responsible to Mr. Allain for this amount of money. Despite the contractural posture of the owner and Allain, it would be unjust to allow the owner to reap the benefits of the work and not pay for such. The law in regard to writing, bonding and recording of contracts was totally disregarded by all parties. This disregard gave rise to the conflicts which subsequently ensued between the parties.”

We adopt as our own the above statements. Upon review of the record and the exhibits, we conclude that the trial court properly placed liability for extra work on the Levys on a theory of unjust enrichment and we find no error in the amount awarded.

LIABILITY

The trial judge properly found the Levys liable for extra work performed by Allain outside of that contemplated by the original specifications and encompassed in Allain’s original bid of $8,480.00. As noted by the Commissioner, the Levys received a benefit in the form of this extra work and it would be unjust to allow them to retain the benefit without compensating Allain for it.

The requirements for recovery under the theory of unjust enrichment are that there be: 1) an enrichment, 2) an impoverishment, 3) a connection between the enrichment and the impoverishment, 4) an absence of “justification” or “cause” for the enrichment and the impoverishment, and 5) the unavailability to plaintiff of any other remedy at law. LSA-C.C. arts. 21, 1965, 2292 et seq., Minyard v. Curtis Products, Inc., 251 La. 624, 205 So.2d 422 (1968); Cap-itano v. Huber, Hunt & Nichols, Inc., 359 So.2d 308 (La.App. 4th Cir. 1978).

It is clear that these five requisites have been met in our case. The Levys have benefited from that extra work without paying for it and, therefore, are enriched. Conversely, Allain performed extra labor and furnished extra materials for which he has not received compensation. To that extent he has been impoverished. A connection between the enrichment and the impoverishment clearly exists. Furthermore, since Vandervoort hired Allain to perform the work there is no contractual relationship between Allain and the Levys. Accordingly, there is an absence of “justification” or “cause” for the enrichment and Allain has no other legal remedy to recover the cost of the extra work. Allain has established entitlement under the actio de in rem verso. See Scott Truck & Tractor Co. of Alexandria v. Daigre, 346 So.2d 1297 (La.App.3rd Cir. 1977),

In concluding that the trial court properly cast Levy in judgment under a theory of unjust enrichment, we reject Levys’ contention that lack of privity of contract between them and Allain bars his recovery. As noted previously, the absence of a contract is one of the prerequisites to recovery in unjust enrichment. Rather than serving to preclude Allain’s recovery, the lack of privity is an essential element of the actio de in rem verso.

With the exceptions noted hereinafter, the extra work performed by Allain is com-pensable. Levy, Vandervoort and Allain’s foreman testified in detail concerning each of the “extras” itemized by the architect. The extras are in conformity with the renovation work originally envisioned by the Levys and we cannot say that Allain made any drastic substitutions of material or implemented extreme changes. Rather, it appears that the extra work arose out of necessity as the work progressed. For example, the doors in certain rooms had to be “undercut” or adjusted to accommodate newly installed carpeting. Certain window sills were discovered to be rotten and had to be replaced. Likewise, leaking in a storage room required the pouring of new concrete.

Although it is true that a dispute existed as to who authorized the extra work, recovery in favor of Allain against Levy under an unjust enrichment theory is consistent with LSA — C.C. arts. 2763 and 2764, dealing with building contracts. Whereas Article 2763 provides that a workman undertaking a job according to an agreed plan cannot claim an increase in price unless he can prove that such changes have been made in compliance with the owner’s wishes, Article 2764 provides that there is an exception where the alteration or increase was necessary and unforeseen. From our examination of the record, we cannot conclude that the changes implemented in the Levy renovation were unnecessary or foreseeable.

We likewise reject Levy’s argument that he is entitled to indemnification from Vandervoort for any amount owed Allain. Acknowledging that Vandervoort authorized certain extra work without consulting Levy, it is clear that Levy has received the benefit of the additional work. Moreover, it is clear that Vandervoort’s authorization for some of the changes was required during the time the Levys were absent and unavailable. Levy testified that because of hospitalization and travels he and his wife were not available for more than a month during the five-and-one-half-month period of renovation and that no arrangement was made with Vandervoort to handle unforeseen things in their absence. Although Levy testified that he did not authorize Allain or Vandervoort to do anything beyond the scope of the original oral agreement, with the exception of cleaning an air conditioner, the fact remains that the scope of the renovations was extensive and unforeseen problems were likely to occur. Since the extra work, though unauthorized because of Levy’s absence, was reasonably required in furtherance of the contemplated renovation, we conclude any authorization by Vandervoort was for Levy’s benefit. Levy, therefore, is not entitled to recovery from Vandervoort of any amount found payable to Allain.

We likewise find no error in the trial court’s dismissal of claims asserted by Van-dervoort. Vandervoort has not appealed the judgment of dismissal and, therefore, it is final as to him. Nor do we find merit in the Levys’ claim for damages suffered and costs incurred in further renovation as a result of the improper work performed by Vandervoort and Allain. The Levys simply failed to show defective workmanship requiring specific corrective work. We find no error, thefefore, in the dismissal of these claims.

QUANTUM

In his answer to Levys’ appeal, Allain claims that he is owed the sum of $12,744.51 and that the trial court, although correctly deciding the issue of liability, unlawfully deducted $5,577.00 from the true amount owed. We disagree.

No brief was filed by Allain and there has been no argument by him concerning the particular items included in the $5,577.00 alleged to have been deducted in error. Accordingly, we can find neither basis nor support for Allain’s claim.

In arriving at the amount of the judgment, the Commissioner relied on Vander-voort’s audited summary of the work performed by Allain through March 1, 1973, as well as the original plans and specifications prepared by Vandervoort on September 18, 1972, and concluded that some of the work performed by Allain and claimed as extras were included in the original bid and specifications. Accordingly, the Commissioner, based on the audit, deducted $405.36 from the $7,572.87 figure found by Vandervoort to be the balance owed Allain for work performed.

Having examined these exhibits and the testimony of the witnesses, we cannot say the trial judge erred. Accordingly, we affirm the trial court’s award of $7,167.51 to Allain based on the Commissioner’s findings.

Finding no error, we affirm the judgment of the trial court.

AFFIRMED.

      . H. A. H. Vandervoort, Sr. vs. Charles A. Levy, Jr., No. 556-756, filed on June 6, 1973.

      . Mr. and Mrs. Charles A. Levy, Jr. vs. H. A. H. Vandervoort, No. 557-960, filed on July 2, 1973.

      . Andrew P. Allain d/b/a/ Allain Construction Co. vs. Charles A. Levy, Jr., and H. A. H. Vandervoort, Sr., No. 571-053, filed on April 5, 1974.

      . This document includes insulation of windows, roofing work, replacement and repair of exterior woodwork, electrical work, various miscellaneous items of repair and replacement, and painting, all of which is itemized in considerable detail.

      . The October 27 letter sets forth the cost of carpeting, furniture, draperies, lighting fixtures and decorative items in the family, living/dining, bedrooms, and baths. The total of the “decorative equipment” amounts to $19,383.90. The general contractor’s price and the cost of decorative painting, electrical work and glassing are added to this figure to give a sum of $31,192.55 as the cost of the total work.

      . Attached to Vandervoort’s table of figures were 17 pages listing the “breakdown of extra work” performed by Allain. These extras included work on the windows, roofing, exterior woodwork, sliding doors, plate glass installation, sills and closet doors, tub and tile enclosures, hall locker shelves, drawers and hardware in the master bedroom and bath, drawers in hall locker, a refrigerator pad, kitchen baseboards, hardware and hamper work in another bath room, additional doors, frames and added shelving, undercutting doors to accommodate carpeting, installing formica slides on bedroom drawers, cleaning an air conditioning sump pit, installing hardware and door stops in the closet of the master bedroom, removal of terrazzo, renailing of ceiling in workroom, moving furniture, installation of gypsum board, a stainless steel counter and stove, support brackets in the workroom, repairs to drawers in a bedroom, installation of wood stripping on the carpet, construction of a ladder and storage deck, replacement of kitchen cabinets and bar slides, installation of certain wall covering, reconstruction of an air conditioning duct, construction of a backyard shed, certain work in the utility room, insulation in certain walls, removal of light fixtures and patching of the ceiling in the living room, andf costs of supervising the extra work.

      . LSA-C.C. arts. 2763 and 2764 provide as follows:
      “Art. 2763. When an architect or other workman has undertaken the building of a house by the job, according to a plot agreed on between him and the owner of the ground, he can not claim an increase of the price agreed on, on the plea of the original plot having been changed and extended, unless he can prove that such changes have been made in compliance with the wishes of the owner.”
      “Art. 2764. An exception is made to the above provision, in a case where the alteration or increase is so great, that it can not be supposed to have been made without the knowledge of the owner, and also where the alteration or increase was necessary and has not been foreseen.”

      . See Hinrichs v. Editions Realty & Investment Co., App. 1918, Orleans No. 7254, 1 Peltier’s Orleans Appeals 45; Peresteras v. Lombardo, 3 La.App. 324 (Orl.La.App.1925).

      . Although Levy testified that $30,900.00 was expended to “finish the house” his testimony was not supported by that of the new contractor or decorator. Furthermore, the complained of defects were general in nature and not corroborated by expert testimony.