author: LOTTINGER, Judge.

text:
    Charles E. ANDERSON v. Gilbert MOSES, State Farm Insurance Company & Aetna Life & Casualty Company.
    No. 13849.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 15, 1980.
    Robert J. Prejeant, Houma, for plaintiff and appellant.
    Jerry H. Schwab, Houma, for defendants and appellees, Gilbert Moses and State Farm Insurance Co.
    Carlos E. Lazarus, Jr., Houma, for defendant and appellee, Aetna Life & Casualty Co.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

This automobile accident case arises out of a relatively minor collision in a shopping center parking lot in Houma, Louisiana. From a trial court judgment absolving the defendant of liability and dismissing plaintiff’s demands, the plaintiff appeals.

The plaintiff-appellant, Charles E. Anderson, claims that when he was backing out of a parking space in the Lynn Park Shopping Center his front bumper was struck by a vehicle driven by the defendant-appellee, Gilbert Moses. Anderson admitted while on the stand that he could not see to his right when he pulled out of the parking space but that he relied on the statement of a passenger in his vehicle that no one was approaching from that direction. When he had pulled out only about four feet, Anderson testified that his passenger told him to stop. Immediately upon stopping, he contends, he was struck by the Moses vehicle, which plaintiff claims was travelling too fast under the circumstances.

Moses, however, testified that he was driving at a reasonable rate of speed in the travel lane of the parking lot and that the Anderson vehicle suddenly and abruptly pulled out in front of him. Moses said he did not have enough time to stop before striking the Anderson car.

In oral reasons for judgment, the trial court held that Anderson created an emergency from which Moses could not extricate himself. Additionally, he found that Anderson was at fault for pulling out in front of the Moses vehicle. As is often the case in this type of situation, the testimony from the two sides was conflicting. It is the function of the trial court in such a case to decide the facts, including the fact of how the accident occurred. Unless the trial court’s decision on factual issues is clearly wrong, that decision will not be disturbed on appeal. Canter v. Koehring Co., 283 So.2d 716 (La.1978); Arceneaux v. Dominque, 365 So.2d 1330 (La.1978).

From our thorough review of the pleadings and transcript we cannot say that the trial court clearly erred in his factual conclusion. Indeed, the preponderance of the evidence shows that the plaintiff was at fault in pulling out of the parking slot without detecting the oncoming vehicle.

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

AFFIRMED.


source: Caselaw Access Project

license: Public Domain

text:
    Linda W. PETERSON v. COLEMAN OLDSMOBILE, INCORPORATED et al.
    No. 13840.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 15, 1980.

      Keith D. Jones, Baton Rouge, for plaintiff-appellee Linda W. Peterson.
    Robert L. Kleinpeter, Baton Rouge, for defendant-appellee Coleman Oldsmobile, Inc.
    Henry D. Salassi, Baton Rouge, for defendant-appellee General Motors Corp.
    Richard Creed, Jr., Baton Rouge, for defendant-appellant Coachmen Industries, Inc.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

This redhibition action arises out of the sale of a “Jimmy Mini” recreational vehicle to the plaintiffs, Nelson and Linda Peterson, by Coleman Oldsmobile, Inc. (Coleman). The plaintiffs originally sued Coleman, General Motors Corporation, the manufacturer of the cab and chassis of the vehicle, and Coachmen Industries, Inc., the manufacturer of the remainder of the mobile home. Coleman filed a third party demand against GM and Coachmen; and Coachmen filed a. third party demand against GM and Onan Corporation, which manufactured and supplied an auxiliary generator plant to the recreational vehicle.

In written reasons for judgment, the trial court ruled in favor of the plaintiffs and against Coachmen Industries in the amount of $26,884.91. Of that amount $20,544.82 represents the purchase price and $6,340.09 represents interest paid on the purchase loan.

The trial judge’s written reasons also allowed Coachmen a credit of $3,360.00 representing the plaintiffs’ use of the vehicle calculated at $.15 per mile for 22,400 miles of use. The written reasons also gave the plaintiffs a credit for the defendant’s use of the purchase price. The judge calculated the credit at 7% for a total figure to date of judgment of $4,022.01. An additional $1,250.00 in attorney’s fees for the plaintiffs was allowed but plaintiffs’ claim for mental anguish and inconvenience was rejected. Coleman was not cast in the judgment; rather, it was allowed indemnity for the full amount of judgment against Coachmen Industries. All other demands were dismissed.

It should be noted at this point that the final judgment as prepared by plaintiffs’ counsel and signed by the trial court differs in some pertinent respects from the trial court’s written reasons. This difference plays an important part in one of the issues raised on appeal, and we will address this issue later in this opinion.

Coachmen brings this appeal from the trial court judgment alleging six specifications of error. For purposes of this opinion we adopt the following well-reasoned views of the trial court as our own:

“In early February, 1977, plaintiffs visited the showroom of Coleman Oldsmobile, Inc., for the purpose of purchasing a recreational vehicle. Coleman Oldsmobile, Inc. (hereinafter Coleman) is apparently an Oldsmobile dealer, but is not an authorized dealer for the truck division (GMC Trucks) of the parent company, General Motors. While there, plaintiff decided to buy a 1977 ‘Jimmy Mini’ motor home. The ‘Jimmy Mini’ reached Coleman in the following manner: (1) GMC Trucks delivered a chassis to Coachmen Industries, Inc.; (2) Coachmen constructed on the chassis a ‘living area’, i. e., the recreational portion, and delivered it to Coleman, an authorized Coachmen dealer; (3) the local GMC dealer, Capitol Mack, invoiced Coleman for the chassis, and Coachmen invoiced Coleman for the recreational portion. The logo ‘GMC’ appeared on the chassis, but the evidence is unclear as to whether that logo appeared on the recreation portion, or, if it did, whether GMC knew or approved of such use. Plaintiff paid a total of $20,544.82 for the vehicle; he was allowed a credit of $7,077.31 for a ‘trade in’, paid $1,000.00 in cash, and financed the remainder, $12,477.51, through GMAC.

“Plaintiffs testified that at the time of the purchase, they thought they were buying a GMC product and would have a general warranty from that corporation. However, within less than 24 hours after the sale, they were presented with a number of warranty documents which clearly revealed to them at that time that GMC was warranting only the chassis. They made no complaint thereafter to GMC, Coachmen or Coleman about the limited warranties afforded in this case.

“Trouble with the vehicle began almost immediately. The plaintiff noticed that the thermostat on the roof air conditioner was not cooling properly, so he returned the vehicle to Coleman the morning after the purchase. At that time, he waited for more than six hours, but was then advised that it would be two weeks before he could be given an appointment to have the thermostat fixed. Plaintiff took the vehicle back home and used it, and then noticed that RV relay was not working. When he returned for servicing he complained about the fact that the relay was not working, and was told that this type of vehicle did not have such a relay. Plaintiff continued arguing with Coleman about this, and the argument was not resolved until eight months later, when plaintiff obtained a copy of the owner’s manual and through the use of the manual convinced Coleman that there was such a relay and that it was not working properly. During the interim, he could not run the recreational vehicle power plant and had to use jumper cables to start the electricity in the living area of the RV.

“In the interim, in March, he took the vehicle to Toledo Bend, and experienced substantial difficulties. The engine was skipping, the oil pressure was low and the vehicle burned an unusual amount of oil. The refrigerator quit working and all of the groceries were lost. In addition, the cruise control was not working properly. Plaintiff changed the plugs and returned the vehicle to Baton Rouge and to Coleman for service. Coleman then advised plaintiff that the vehicle would have to be taken to Capitol Mack for service on the chassis portion; this was done, and Capitol Mack kept the vehicle for about a week. The cruise control was repaired, and the advice of Capitol Mack was to drive the vehicle a while to see if the engine would ‘seal in’. The RV was then returned to Coleman for repair of the RY relay and the power plant; although it remained there a week, neither was repaired. Upon discovering this, plaintiff immediately returned the vehicle to Coleman, but when he returned to check, no work had been done, and, in fact, Coleman had removed the battery and battery cable (apparently to supply some other vehicle) and had put in a smaller battery. After plaintiff called this to their attention, a new, larger battery was installed. Plaintiff took the vehicle home and apparently attempted some repairs of his own, but then took it back to Coleman, determined to leave it there until they were able to fix it. It remained there four weeks, at which time plaintiff regained possession. The power plant at this time was running better, but the problem with the RV relay had not been fixed, and the refrigerator was not working properly. The engine oil consumption problem still remained. It should be noted that at this time, there were only 3,000 miles on the vehicle; considering that there were 1,500 and 1,600 miles on the vehicle when it was bought, plaintiff had been able to accumulate about 400 miles per month, including numerous trips to Coleman.

“Other problems had developed, however. Plaintiff was having difficulty hauling a boat with the RV, and the bottom rear of the RV was striking the roadway (‘bottoming out’) on less than level roads. For this problem, the vehicle was referred to Capitol Mack, and the GMC representative was called in. GMC had Capitol Mack ‘shim the coach up’, i. e., raise the body. This satisfied the ‘bottoming out’ problem, but made the vehicle less stable in handling.

“After these problems were taken care of, the ‘body’ of the ‘living area’ began to cause problems. Early leaking had been noted (in April or May), but by June the walls were ‘moving’, cabinets were coming loose, and the leakage had reached a point at which some rotting and staining was occurring. Apparently, in late June, the vehicle was returned to Coleman for repair of these defects, together with repairing the RV relay. It remained there for about three months, during which some of the defects were repaired, but the replacement patches of the carpet did not match the initial carpet, and apparently nothing was done to correct the moving walls. After this, suit was filed to rescind the sale; Coleman thereafter made efforts to remedy some of the complaints, but apparently did not do so to the satisfaction of plaintiff.

“Suffice it to say that plaintiff was unable to average more than 400 miles per month during the first year, and at the end of that time, many of the initial defects had not been corrected. The court is of the opinion that the ‘Jimmy Mini’ contained such defects that it was either absolutely useless or its use was so inconvenient that plaintiff would not have purchased it had he known of the defects, and that the defects existed at the time of the purchase but were neither known [nor] apparent to plaintiff. Thus the seller(s) are liable in redhibition, if it (they) were given an opportunity to correct the defects but were unable to do so.

“Coleman was the ‘seller’, but this determination does not answer the question, for (1) the retailer seller may be entitled to indemnity from the manufacturer seller(s), and (2) the manufacturer seller(s) may be liable directly to the purchaser for redhibition. Thus the court must determine who was the ‘manufacturer-seller’ in the instant case.

“Quite naturally, GMC accuses Coachmen, and vice versa. However, we are unable to hold GMC liable as the manufacturer-seller of the entire unit, for these reasons: (1) viewed objectively, its role was more that of a seller of a component part; (2) Coachmen had exclusive control of the way in which the GMC component would be used, and (3) the use of the GMC emblem was either restricted to the component (the chassis) or was used beyond the chassis without the knowledge or consent of GMC.

“The court also is not convinced that any belief by the plaintiffs that GMC was the warrantor of the whole unit was a motivating factor in their purchase. They learned within 24 hours after the sale that GMC warranted only the chassis, but they made no protest, and plaintiff admitted candidly that they probably would have bought the RV even if they had known that GMC did not warrant the entire unit.

“Thus if GMC is liable at all, it is as manufacturer-seller warrantor of the chassis. In this respect, GMC was given only two opportunities to repair the defects attributable to the chassis. On one of these occasions, GMC reasonably believed it had solved plaintiff’s problems, and the plaintiff never did return the vehicle to GMC’s dealer, Capital Mack, for further repairs. On the second occasion, GMC did all that it could to alleviate the problem — the weight distribution problem — but (a) this defect was not attributable to GMC, and (b) under the circumstances, GMC could do no more about it than it did. The court does not believe the chassis was defective. Under these circumstances redhibition against GMC should not be permitted.

“Onan was the manufacturer of the generator in the recreational vehicle, and has been third partied by Coachmen. However, the only complaints in the pleadings about the auxiliary generator manufactured by Onan was that (1) it was hard to start and (2) it made a knocking noise. No evidence was offered to prove the second complaint, and as to the first complaint, the evidence revealed that there were two starters, the panel (remote) starter inside the living area, and the direct starter, outside on the generator, and the panel starter was the only one which was defective, and that this starter was manufactured by Coleman (sic) [Coachmen]. Under these circumstances, Onan is not liable, and the third party demand should be dismissed.

“This leaves as remaining defendants Coleman, the retailer-seller, and Coachmen, the manufacturer-seller. The court is of the opinion that the defects which made the vehicle useless — the lack of an RV relay, the defects in the frame of the ‘living area’, the ‘overloading’ of the rear end of the chassis, and the defects in the power plant and refrigerator — are attributable to both defendants. Under these circumstances, both should be cast for the damages plaintiff has sustained. However, CC Article 2531 provides in relevant part that:

In any case in which the seller is held liable because of redhibitory defects in the thing sold, the seller shall have a corresponding and similar right of action against the manufacturer of the thing for any losses sustained by the seller.

Under this article, Coleman is entitled to indemnity over against Coachmen. Coachmen argues, however, that under the jurisprudence [Daigle v. Robinson Brothers, Inc., 268 So.2d 186 (La.App. 1st Cir. 1979) and Perrin v. Read Imports, Inc., 359 So.2d 738 (La.App. 4th Cir., 1978)] the court should deny indemnity because Coleman failed to properly repair the RV. As the court understands the cases, the ‘estoppel to claim indemnity’ against the retailer applies only where the defects are easily remediable or are caused by the repairs. While the repair work in this case was clearly unsatisfactory by any standard, the defects arose out of the manufacture of the product and were probably impossible to remedy. For example, the 'overloading’ or improper weight distribution of the living area on the chassis simply could not be corrected; in the like manner, the defects in the frame were not easily repairable.

“The court is hesitant to deny the retailer’s right to ‘recover over’ against the manufacturer, clearly granted by the legislature, beyond that which is compelled by the decisions of higher courts. In this case, where the defects which the retailer failed to correct were minor, and the major defects which support the redhibition were not reasonably remediable by the retailer, indemnification will be granted.”

Coachmen claims the trial court erred:

1. In granting Coleman indemnity against Coachmen;

2. In not holding General Motors liable for defects in the components it manufactured;

3. In not holding Onan responsible for the defects in the power plant;

4. In finding that the defects complained of entitled plaintiff to rescission of the sale of his motor home;

5. In admitting hearsay evidence; and

6. In granting plaintiff a credit for defendants’ use of the purchase price.

We will address these specifications one by one.

COLEMAN’S INDEMNITY AGAINST COACHMEN

While we certainly agree with the trial court’s finding that Coleman’s repair attempts were often unsatisfactory and even sloppy at times, the court’s conclusion allowing Coleman indemnity against Coachmen is supported by the law and jurisprudence of this state. La.C.C. art. 2531 gives the seller who is held liable because of redhibitory defects a corresponding right of action against the manufacturer for any losses sustained by the seller. A review of the list of defects quoted in the trial court’s opinion above will show that most of the major problems complained of by the plaintiffs were problems resulting from the manufacture of the Jimmy Mini motor home by Coachmen. While Coleman was not a good faith seller in the sense that the dealership had knowledge of some of the defects prior to sale, knowledge of these redhibitory defects alone does not abrogate Coleman’s right to indemnity under Article 2531. Millin v. Dawson, 387 So.2d 1213 (La.App. 1st Cir. 1980). Coachmen cites Bagwell v. Coleman Oldsmobile, Inc., et al., 391 So.2d 1260, No. 13432 on the Docket of this court, wherein Edwards, J. as the organ of the court, affirmed a trial court decision which disallowed indemnity. Bagwell is distinguishable. There, the trial court found that the defects for which redhibition was granted were not attributable to the manufacturer. In the case at bar, the major defects found by the trial court, particularly the overloaded rear end, were directly attributable to the manufacturer.

LIABILITY OF GENERAL MOTORS

As shown in the trial court’s opinion, General Motors’ connection to this vehicle was through the cab and chassis GM manufactured. As we see it, the only defect which could possibly be considered hidden and redhibitory as concerns GM is the excess consumption of engine oil. However, as the trial court found, this problem seemed to have more to do with the sealing in of the engine than with any kind of defect in the engine. The cause of the motor home “bottoming out” on the road appears to have been the oversized and overweight coach placed upon the chassis by Coachmen.

ONAN’S LIABILITY

The preponderance of the evidence in this case shows that the problems with the power plant manufactured by Onan Corporation occurred as a result of faulty switches installed by Coachmen and not as a result of any defect in the manufacture of the power plant. We agree with the trial court absolving Onan of liability.

SUFFICIENCY OF DEFECTS TO MERIT RESCISSION

Under Article 2520 of the Civil Code a buyer is entitled to rescission of a sale if the vices or defects in the thing sold render it either absolutely useless or so inconvenient and imperfect that it would be assumed that a buyer would not have bought it had he known of the defects. Our thorough review of the pleadings and transcript in this case convinces us that had the plaintiffs known of the hidden defects afflicting this motor home prior to the time they purchased it they would not have bought the unit. The motor home was often absolutely useless for its intended purpose or its use was so inconvenient and imperfect that the plaintiffs would not have purchased it had they known of the problems with which they would be faced. The malfunctioning RV relay, the defects in the frame of the living area, the overloading of the rear end of the chassis, the defects in the power plant and refrigerator and the numerous other lesser defects complained of by plaintiffs were of such magnitude as to allow plaintiffs to rescind this sale.

HEARSAY EVIDENCE

Coachmen contends that the trial court erred in allowing the plaintiff to identify figures he saw on a weight receipt shown to him by an employee of Coleman. The court allowed the plaintiff to testify as to the weight figures, concluding that Coleman’s employee had adopted the weight figures as his own. The admission of a party opponent is one of the exceptions to the hearsay exclusionary rule. The evidence was thus admissible as to Coleman. Coachmen contends on appeal, however, that the trial court used this hearsay evidence against Coachmen in finding that the rear end of the motor home was overweight and that the weight problem was caused solely by Coachmen. Coachmen’s prime objection is that hearsay evidence should not be used against Coachmen unless it is shown that Coleman was acting as Coachmen’s agent in this regard.

While our review of the record shows that Coleman arguably was acting as Coachmen’s agent for warranty repairs of Coachmen products, we need not decide whether Coachmen’s hearsay objection has merit. Other evidence in the record shows that the weight problem which resulted in the unit bottoming out on the highway was caused solely by Coachmen’s placement of the living unit on the chassis. Even if the trial judge incorrectly admitted hearsay evidence, we cannot find that he relied on it in deciding this case.

USE OF PURCHASE PRICE

In its final specification of error, Coachmen contends the trial court erred in allowing the plaintiff a credit for the defendants’ use of the purchase price. Coachmen claims the plaintiff is entitled only to legal interest from the date of judicial demand. Double recovery would result, Coachmen says, if the plaintiff is given a credit for the defendant’s use of the purchase price. While we see some merit in the defendant’s contention in this regard and will discuss our views thereon below, this discussion will necessarily be dicta for reasons hereafter explained.

As indicated at the outset of this opinion the trial court in written reasons awarded the plaintiff of $20,544.82 for the purchase price, $6,340.09 for finance charges and $4,022.01 for the defendant’s use of the purchase money. The trial court also gave the defendant a credit of $3,360.00 representing the plaintiff’s use of the recreational vehicle. However, the final judgment as prepared by the plaintiff and signed by the trial judge does not conform to the trial judge’s written reasons. The $4,022.01 allowed to the plaintiff by the trial court for the defendant’s use of the purchase price is not mentioned in the final judgment. Instead, the two paragraphs in the final judgment pertinent to this discussion read as follows:

“IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Defendant, COACHMEN INDUSTRIES, INC., be granted a credit for use of the vehicle in the amount of THREE THOUSAND THREE HUNDRED SIXTY AND NO/lOO ($3,360.00) DOLLARS.
“IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Defendant, COACHMEN INDUSTRIES, INC., be ordered to pay unto Plaintiff the sum of SIX THOUSAND THREE HUNDRED FORTY and 09/100 ($6,340.09) DOLLARS representing interest paid by Plaintiff on the chattel mortgage together with legal interest on the sum of TWO THOUSAND EIGHTY AND 09/100 ($2,080.09) DOLLARS representing a difference between the interest paid by Plaintiff on the chattel mortgage note and the credit to which Defendant is entitled from the 21st day of November, 1979.”

At the outset, it is apparent that a mathematical miscalculation was made in subtracting the credit for use ($3,360.00) from the finance charge ($6,340.09). The difference is $2,980.09, not $2,080.09 as stated in the judgment. Be that as it may, we think the trial judge erred in calculating the award for use of the purchase price by the defendant.

Plaintiff was awarded $6,340.09 which represented the finance charge on the $12,-477.51 loan he obtained from GMAC to pay for the vehicle. This was the expense the plaintiff incurred to use GMAC’s money to buy the motor home. By requiring Coachmen to pay this sum the court has fully compensated the plaintiff for the defendant’s use of this portion of the purchase price. There is, however, another part of the purchase price, i. e., the $1,000.00 cash payment and the $7,077.31 trade-in representing a total downpayment by the plaintiff of $8,077.31. The defendant should rightfully pay the plaintiff for the use of this portion of the purchase price at 7% per annum from the date of purchase until the date of final judgment. See Smith v. Max Thieme Chevrolet Company, Inc., 315 So.2d 82 (La.App. 2nd Cir. 1975).

As the final judgment now stands, Coachmen is in a better position than it would have been had the trial court’s written reasons been followed or if our views were incorporated into the final judgment. The plaintiff has neither appealed nor answered the defendant’s appeal. Thus, we cannot amend the judgment to Coachmen’s detriment.

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

AFFIRMED.

      . “The RV/Relay apparently is a small but essential part of a recreational vehicle. As the court understands it, the relay permits the user to ‘charge’ the living area battery while the vehicle is being operated on the highway, but then to avoid ‘draining’ the vehicle battery when the vehicle is parked and living area is being used.”

      . “The distance from Coachmen’s factory in Indiana to Baton Rouge; the vehicle apparently was driven to its destination for resale.”

      . “The evidence is in conflict on the consent of GMC to the use, if any, by Coachmen of the GMC emblem on the portion of the RV manufactured by Coachmen. The court notes that there is evidence in the record that Coachmen obtained GMC’s permission to use the term ‘Jimmy’ in ‘Jimmy Mini’ on the theory that ‘Jimmy’ might be a trademark infringement on ‘GMC’. While not directly relevant to this suit, this tends to prove that Coachmen did not believe it had the right to use GMC on this finished ‘Jimmy Mini’ without GMC’s express consent. This, in turn, negates Coachmen’s right to use ‘GMC’ anywhere on the portion of the RV which is constructed in the absence of proof of such right, and none was offered by Coachmen or plaintiff.”

      . “The court is of the opinion that the evidence also fails to establish the existence of any defects in the chassis engine, but merely initial difficulties before the engine was ‘broken in’.”

      . “The defect resulting from improper weight distribution of the living area on the chassis could not be corrected short of rebuilding. Similarly, the ‘warping’ of the frame of the living area couid not be corrected, as new movement would cause it to go back out of line.”


text:
    Clarence W. FIFE v. MORRISON CAFETERIA COMPANY OF LOUISIANA, INC.
    No. 13855.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 15, 1980.
    Writ Refused Feb. 13, 1981.

      Edward J. Walters, Jr., Baton Rouge, for plaintiff-appellant Clarence W. Fife.
    Jack W. Thomson, New Orleans, for defendant-appellee Morrison Cafeteria Company of Louisiana, Inc.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

This is a slip and fall case. The plaintiff claims he slipped on a lemon peel at a cafeteria operated by the defendant and aggravated a pre-existing back condition which eventually resulted in disc surgery. The trial judge expressed disbelief in the plaintiff’s testimony and found no connection between the slip and the plaintiff’s serious medical problems. He ruled in favor of the defendant, and the plaintiff perfected this appeal.

The plaintiff’s four specifications of error revolve around the trial court’s finding that the plaintiff failed to establish a prima fa-cie case as to the degree of the slip and the connexity between the slip and the cause of the injury. The plaintiff also claims the trial court erred in deciding the case based solely on the plaintiff’s credibility and in failing to award the plaintiff damages.

The plaintiff claims that on November 9, 1976, he slipped on a lemon wedge while standing in line at the cafeteria in the Department of Education Building in Baton Rouge, Louisiana. He prevented himself from falling by grabbing the tray rail.

More than two months prior to the slip incident, the plaintiff visited his family physician, Dr. Vincent A. Bella, complaining of low back pain. As a result of this August 31, 1976 visit, Dr. Bella prescribed muscle relaxants, bed rest and heat to the back area. He diagnosed the plaintiff’s condition as sciatica.

About one week after the slip incident, the plaintiff saw Dr. William Smith on November 17, 1976. Dr. Smith recommended physical therapy consisting of deep heat, sand bags and rub downs, and the plaintiff said he underwent the physical therapy treatments for about two weeks. He saw Dr. Smith off and on for a year. Dr. Smith did not testify at trial or by deposition.

In November of 1977, Dr. Smith referred the plaintiff to Dr. Thomas B. Flynn, a neurological surgeon. A myelogram was performed on the plaintiff on November 28, 1977. The myelogram showed a probable disc herniation at the L-4 level. On November 29, 1977, Dr. Flynn performed a laminectomy, excising the herniated disc.

Between his visits to Dr. Smith and Dr. Flynn, plaintiff saw Dr. James Halley, an orthopedic surgeon, on August 4, 1977. He complained of back pain and related the slip incident at the cafeteria. X-rays of the lumbar spine taken by Dr. Halley showed no definite evidence of arthritis and revealed well preserved disc spaces. The plaintiff saw Dr. Bella three times during 1977 mainly in relation to pain in the abdomen and chest areas. He also saw a Dr. Harris A. Lappin, a heart specialist, a couple of times in 1977. The plaintiff was unable to perform Dr. Lappin’s exercise routine because, as he told the doctor in a follow-up visit on May 11, 1977, he had pain in his back and leg.

Two other persons who witnessed part of the slip incident testified at trial. One of them, an employee of the plaintiff in the Department of Education, said he saw the plaintiff grab the rail to prevent falling. He said the plaintiff picked up a lemon wedge and, after they had sat down, told him that he had twisted something in his back. The other witness, Mrs. Eva Tem-plet, a cashier at the time of the incident, had no knowledge of the lemon wedge and believes the plaintiff slipped on a small spot of water. Mrs. Templet and the plaintiff’s employee agreed that the incident occurred in the morning hours. Plaintiff said the incident took place in the afternoon.

In written reasons for judgment, the trial court found “as a fact that plaintiff failed to establish a prima facie case as to the degree of his slip and fall and as to whether or not the fall is the cause of his injury. Simply stated, the Court does not believe the testimony of the plaintiff. His demean- or on the stand, his unresponsiveness to questions, his inexplicable lack of memory on important points and variance with his own witnesses as to material facts leads the court to believe that he has embellished his testimony as to the degree and cause of the slip in the cafeteria, and the connection between that slip and his admittedly serious medical problems.” As an after thought, the trial court observed that had the plaintiff established a prima facie showing of connexity, “the defendant would not have been successful in demonstrating that its cleanup procedures were reasonable towards the plaintiff under the circumstances of this case.”

After a careful review of the record we are convinced the trial judge was correct.

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

AFFIRMED.


text:
    Drew Gustave SCHMIDT v. Judie Elaine Vallation SCHMIDT.
    No. 13858.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 15, 1980.
    James E. Kuhn, Denham Springs, for plaintiff.
    Richard Derbes, Baton Rouge, for defendant.

      Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

This is a suit for divorce based on adultery and for child custody. The trial court granted a divorce to the husband-plaintiff, Drew Gustave Schmidt, and awarded the husband custody of 11- and 9-year-old daughters born of the marriage.

From this judgment, the defendant-wife, Judith Elaine Schmidt, appeals. She alleges the trial court erred in admitting evidence pertaining to specific acts of adultery when there was no specific act of adultery alleged in the petition; in finding that the plaintiff was entitled to a divorce based on adultery; and in finding that the plaintiff-husband was entitled to the permanent care and custody of the two minors born of the marriage.

The appellant correctly points out that the plaintiff’s petition does not allege specific acts of adultery. However, the petition contains general allegations of acts of adultery and the defendant filed no exception of vagueness to have the allegations specifically elucidated. See La.C.C.P. art. 926. Additionally, there was no objection at trial to the introduction of evidence concerning the specific acts of adultery. Given this set of circumstances, we find the trial court correctly admitted the evidence regarding the specific acts of adultery. There is no merit to the defendant’s specification of error in this regard.

We find additionally that the preponderance of the evidence shows that Mrs. Schmidt committed a number of acts of adultery after her physical separation with Mr. Schmidt. She admitted that she slept with one Brandon Babin on a number of occasions, and that the only reason she required Mr. Babin to move out of her apartment shortly before the custody hearing was that his moving out might help her obtain custody of the two children. The admissions of Mrs. Schmidt, along with the reports of two private investigators, show by a preponderance of the evidence that an adulterous relationship took place. There is no error in the trial court’s finding in this regard.

When Mrs. Schmidt moved from the matrimonial domicile in June of 1979, the two daughters remained in the home with Mr. Schmidt and continued attending the school they had attended prior to the separation. The trial judge spoke to the two children, viewed the witnesses on the stand and made a determination that the best interests of the children would be served by continuing their custody with the father. La.C.C. art. 157. He allowed the mother liberal and reasonable visitation privileges. In custody matters, the trial court’s judgment is entitled to great weight. It will be disturbed only in cases where he has clearly abused his discretion. We are convinced that the trial court correctly decided the custody issue and did not abuse his discretion.

Therefore, for the above and foregoing reasons, the decision of the trial court is affirmed. The defendant-appellant will pay the costs of this appeal.

AFFIRMED.


text:
    Jack Floyd HALL v. Millard SMITH.
    No. 13862.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 15, 1980.
    Rehearing Denied Jan. 26, 1981.
    Writ Refused April 6, 1981.

      Michael R. Wheeler, Baton Rouge, for plaintiff-appellant Jack Floyd Hall.
    D. Bert Garraway, Baton Rouge, for defendant-appellee Millard Smith.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

The plaintiff, Jack F. Hall, filed this suit against Millard Smith to rescind the sale of a 1968 Volkswagen Van which he purchased from Smith on March 11, 1978, for $1,400.00. From a trial court judgment in favor of the plaintiff, the defendant Smith brings this appeal.

The plaintiff bought the ten-year-old van in response to an ad in the local newspaper. He paid the defendant $700.00 in cash on the day of purchase and drove the vehicle, which had more than 120,000 miles registered on the odometer, to Bogalusa. During the drive, the vehicle stalled a number of times. The plaintiff claims he talked to the defendant about the problems on the following Monday, but never specifically asked the defendant to repair the vehicle. The defendant denies he and the plaintiff spoke about the vehicle on the following Monday. In any event, on the following Wednesday the plaintiff paid the final $700.00 of the purchase price in cash.

On March 27, on another trip, the van caught fire and burned. The plaintiff claims he lost several items of personal property in the fire including camping and fishing gear, clothes, a pistol and perhaps some stereo-like equipment.

The defendant testified that the van’s motor had been rebuilt soon after he bought the vehicle in 1977 for $950.00. He claims he made about $800.00 in repairs on the vehicle. He furnished the plaintiff with copies of bills showing the repairs he had made while the van was in his possession.

The evidencé shows that ¡while the plaintiff may have spoken to the defendant about the stalling problem when he paid the remainder of the purchase price and while the plaintiff may have taken the vehicle to the automobile shop which rebuilt the engine, the plaintiff took no affirmative steps to have the vehicle repaired prior to the fire. In this connection, the defendant pled that the loss of the vehicle was caused through no fault, negligence or other action of his.

The trial judge, calling the case “somewhat unfortunate,” said he “is convinced that defendant was in absolute good faith and had represented honestly and candidly the condition of the vehicle insofar as he knew it.” However, the trial court said the vehicle’s defects rendered its use so inconvenient and imperfect that the plaintiff would not have purchased it had he known of the defects. The court apparently believed the plaintiff’s expert, Charles Dillon, a friend of the plaintiff and a Volkswagen mechanic, who said lack of heater ducts and a loose carburetor caused the overheating and fire. The court ordered the defendant to repay the purchase price of $1,400.00 and noted that it was impossible to rescind the sale and order the return of the van since it had burned. Using Civil Code Article 2532, the judge placed the loss of the vehicle on the seller. He disallowed damages, relying on the same article.

In his brief before this court, the defendant relies heavily on the fact that the plaintiff did not give him a chance to repair the vehicle, which chance must be accorded a good faith seller under La.C.C. art. 2531 before the action of redhibition can be brought. Jordan v. LeBlanc and Broussard Ford, Inc., 332 So.2d 534 (La.App. 3rd Cir. 1976); see also Burns v. Lamar-Lane Chevrolet, Inc., 354 So.2d 620 (La.App. 1st Cir. 1977). While it is true that a good faith seller must be given a chance to repair a vehicle before rescission of the sale is granted, both Jordan and Burns, supra, suggest that the seller who has not been given a chance to repair the vehicle should raise this objection in a dilatory exception of prematurity. La.C.C.P. art. 926(1). Failure to raise a dilatory exception prior to answer or judgment by default generally results in a waiver of the exception. La.C.C.P. art. 928. We are certainly cognizant of the fact that, in the case at bar, the defendant may have thought it an exercise in futility to raise the exception of prematurity since the vehicle was destroyed and there was nothing to be repaired by the time suit was commenced. We find, however, that the dilatory exception of prematurity is the procedural vehicle by which a defendant in a redhibition action should assert his right to repair. Having failed to file such an exception, the exception is considered as having been waived.

As noted above, defendant in his answer pled he was not at fault in the van’s destruction. The defendant’s contention is that the plaintiff knew of the stalling and overheating problems in the van but continued to drive it until the van caught fire and burned. We find merit in this defense. The plaintiff knew full well that he was buying an old vehicle which had had a number of repairs made upon it prior to the purchase. The plaintiff experienced numerous stalling and overheating problems during the short period of time he possessed the vehicle, but did nothing to get the problems corrected even though he was planning a long trip. The plaintiff’s knowledge of a loose exhaust on the engine, and his knowledge of the stalling and overheating problems, should have put him on notice that something was wrong with this 10-year-old and well-worn vehicle. His failure to take action to have the problems checked out resulted in the vehicle being consumed by fire. In most cases, it should be obvious to a purchaser of a 10-year-old vehicle which has more than 120,000 miles on it that the vehicle may possess defects which will hinder its use. Having purchased this old vehicle and paid the full price with complete knowledge that the engine was malfunctioning, the plaintiff must bear the loss which occurred in this case.

Therefore, for the above and foregoing reasons, the judgment of the trial court is reversed, and plaintiff’s petition is dismissed with prejudice. All costs in both the trial court and in this court are assessed against plaintiff-appellee.

REVERSED AND RENDERED.


text:
    Russell DURBIN et al. v. ARGONAUT INSURANCE CO. et al.
    No. 13867.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 15, 1980.
    Robert Mack, Hammond, for plaintiff.
    Carlos E. Lazarus, Jr., Houma, for defendant Argonaut Insurance Co.
    Leonard E. Yokum, Hammond, for defendant Dibert, Bancroft & Ross Co.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

The parents of a deceased employee brought this action for death benefits against the employer’s workmen’s compensation insurance carrier. The insurer appeals the trial court judgment awarding the plaintiffs $25.00 per week for 400 weeks. The plaintiffs have not appealed the trial court judgment rejecting their tort suit against the employer’s executive officers. That matter is now final.

The sole issue on appeal is whether the plaintiffs proved they were actually dependent upon the deceased at the time of death. La.R.S. 23:1252, 1254.

Eddie Durbin suffered a compensable fatal injury in 1976 while in the course and scope of his employment with Dibert Bancroft & Ross, Limited. At the time of death and for the two or three months he was working for the company, Eddie lived at home. Both parents testified that Eddie gave them $10.00 to $20.00 per week, depending upon the size of his check, up to a month before his death. His mother told him he need not continue contributing the money because he was getting married and he needed the money to establish his new apartment.

Eddie’s mother fixed him two meals a day while he lived at home and she fixed him a lunch to take to work. She washed his clothes and took care of his room. In his spare time, Eddie helped around his family’s 110-acre farm by feeding the animals and getting the corn ground for about 100 head of cattle. He also occasionally helped out at a family restaurant. The father claimed the deceased on the father’s income tax during the year of death. Both parents testified that the money given to them by Eddie was not in return for his living at the house.

In written reasons for judgment, the trial court found that there was a “partial actual dependency” on the part of the plaintiffs attributable to Eddie’s earnings and to his work on the farm. The court explicitly took into account Eddie’s contributions through work on the farm in finding under La.R.S. 23:1231 that Eddie contributed 20% of his total weekly wages to the plaintiffs.

The defendants contend on appeal that the plaintiffs failed to prove that they were dependent either partially or fully on contributions from the deceased for their support. They cite the following facts to back up their claim:

—The parents’ testimony regarding the contributions was self serving;

—The parents instructed the deceased to stop payments one month before the fatality since the son was soon to be married;

—The father claimed the son on his income tax return;

—The father occasionally gave Eddie money for work Eddie did on the farm or at the restaurant.

Under La.R.S. 23:1252 the question of legal and actual dependency in cases in which conclusive dependency does not exist shall be determined “in accordance with the facts as they may be at the time of the accident and death.” La.R.S. 23:1254 provides that “the relation or dependency must exist at the time of the accident and at the time of death, and the mere expectation or hope of future contribution to support of an alleged dependent by an employee, shall not constitute proof of dependency as a fact.”

In its latest discussion of the dependency issue, the Louisiana Supreme Court in Hurks v. Bossier, 367 So.2d 309 (La.1979), cited with approval Larson’s definition of dependency.

“The general test of dependency may be stated as follows: A showing of actual dependency does not require proof that, without decedent’s contributions, claimant would have lacked the necessities of life, but only that decedent’s contributions were relied on by claimant to maintain claimant’s accustomed mode of living.” The Law of Workmen’s Compensation, Matthew Bender, Volume 2, 1976, § 63.11.

As to partial dependency, Larson states at 63.12:

“Partial dependency may be found when, although the claimant may have other substantial sources of support in his own work, from property, or from other persons on whom claimant is also dependent, the contributions made by the decedent were looked to by the claimant for the maintenance of his accustomed standard of living.”

The court in Hurks held that the contributions by the deceased of $50.00 to $60.00 a week to his mother who lived in poverty with her invalid mother and with the deceased supported a showing of dependency. The Hurks court cited McDermott v. Funel, 258 La. 657, 247 So.2d 567 (1971), where the Supreme Court held that a mother proved dependency by showing that her son contributed $15.00 to $20.00 a week out of a $55.00 paycheck. The mother earned about $40.00 a week as a domestic worker.

The defendants assert that the rule fashioned in Hurks and McDermott, supra, requires the plaintiffs to show that Eddie’s contributions were relied on by his parents to maintain their accustomed mode of living. They also claim that the fact that the payments had ceased one month before the time of death shows that the Durbin family did not rely on Eddie’s contributions to maintain their accustomed mode of living.

In 14 Louisiana Civil Law Treatise, Workers’ Compensation, Section 309 (West, 2nd Ed. 1980), Professors Wex Malone and H. Alston Johnston, III, comment that:

“. .. in all cases (except where the dependency of the spouse and child is conclusively presumed), the claimant must prove dependency by establishing both a need for support and also the fact that contributions to his support were actually made by the deceased during the latter’s lifetime
* * * * * *
“Thus, it is commonly held that neither need for support nor the existence of a moral or legal obligation to support is sufficient proof of dependency if there is not showing that the deceased in fact contributed to the claimant’s support * * * * * *
“The dependency must have existed at the time of the accident and death. Proof of prior dependency is not sufficient, and contributions made by the deceased to a partial dependent more than a year before the death cannot be included in determining the amount of compensation to which a partial dependent is entitled.”

We think the law of this state is clear that for a dependency relationship to be shown the relationship must exist at the time of death. Additionally, a decedent’s contributions must be relied upon by the claimant to maintain the claimant’s accustomed mode of living. The fact that the decedent in this case stopped making the payments to his mother about one month prior to his death and the fact that his parents were adequately supporting themselves without the decedent’s contribution leads us to the conclusion that the decision of the trial court must be reversed. See Darrow v. Travelers Ins. Co., 175 So. 98 (La.App. 2nd Cir. 1937), writ denied, June 21, 1937, wherein termination of contributions more than a year prior to death was used by the court to hold that the decedent was not supporting his parents at the time of death.

Therefore, for the above and foregoing reasons, the decision of the trial court is reversed, and plaintiffs’ petition is dismissed with prejudice. All costs in both the trial court and this court are assessed against plaintiffs-appellants.

REVERSED AND RENDERED.

      . The parents are Russell and Nacine Durbin. Other plaintiffs are Brenda Durbin, Debbie Durbin and Shari Durbin, three minor children of Mr. and Mrs. Durbin; and Joei Durbin, John Durbin, Wayne Durbin and Russell Durbin, Jr., major brothers of the deceased. The trial court’s award was in favor of the parents only, and the plaintiffs do not contest this decision. The issue of liability vel non to the brothers and sisters will therefore not be addressed in this opinion.

      . Eddie earned $3.26 per hour on the date of death which computes to $130.40 for a 40-hour week. A contribution of $10.00 to $20.00 per week out of that amount would represent 7.5% to 15% of the total weekly wage. The trial court apparently found that the work on the farm accounted for the remainder of the 20% which the deceased contributed to the plaintiffs.


author: EDWARDS, Judge.

text:
    Jean W. DUNAWAY v. BANKERS LIFE AND CASUALTY COMPANY and Life Insurance Company of North America.
    No. 13792.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 15, 1980.
    Rehearing Denied Jan. 26, 1981.

      Robert W. Stratton, Baker, Roy Mau-ghan, Baton Rouge, for plaintiff-appellant Jean W. Dunaway.
    Pam Crawford and Charles S. McCowan, Baton Rouge, for defendant-appellee Volunteer State Life Ins. Co.
    John Michael Parker, Baton Rouge, for defendant-appellee Banker’s Life & Cas. Co.

      Francis G. Weller, New Orleans, for defendant-appellee Life Ins. Co. of North America.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

Lampton E. Dunaway died from a shotgun wound to the chest on January 21, 1978. His wife, Jean W. Dunaway, plaintiff, sought to collect $36,001.17 in life insurance benefits from various policies. When the insurance companies refused payment on the ground that Mr. Dunaway had committed suicide which, according to the policies, precluded payment, plaintiff brought suit. Bankers Life and Casualty Company, Life Insurance Company of North America and Volunteer State Life Insurance Company were named defendants.

Following trial by jury, a verdict of ten to one against plaintiff was returned. Judgment was in accordance with the verdict and all costs, including $250 in expert witness fees, were assessed against plaintiff. From that judgment, plaintiff appeals. We affirm.

Appellant specifies that the trial court erred in commenting on certain testimony, in making various evidentiary rulings and in refusing to give all thirteen of plaintiff’s requested jury instructions.

Appellant complains of remarks made by the trial judge while the Reverend Gerald Boerger was testifying. A careful reading of that testimony shows that Reverend Boerger was remarkably forgetful and indefinite while on cross-examination by defense counsel. The court’s comments that “all we want you to do is be honest” and that the witness was being “evasive,” were not prejudicial but were attempts, albeit unsuccessful, to afford defense counsel a fair opportunity to cross-examine a witness who was reluctant, at best.

The admission of Sergeant Charles Bailey as an expert in homicide investigation was not an abuse of the trial court’s discretion.

Defense counsel’s reference during opening argument to a note left by the decedent as “a cry for help” was not prejudicial to plaintiff. Plaintiff produced the note in answer to a subpoena requesting any notes written by decedent within seventy-two hours of his death. The note, reading in part “I feel bad” and written in tortuous fashion, was properly admitted into evidence during trial. While the note may ultimately have weighed heavily against plaintiff’s case, its mention in opening argument was irrelevant since the trial judge correctly instructed the jury that argument by counsel was not to be considered evidence.

It was not error for the trial court to disallow certain testimony by Dr. Curtis A. Steele and Irving Johnson, Jr. Plaintiff’s counsel asked Dr. Steele whether a person as intoxicated as decedent was at the time of his death could understand the consequences of his behavior. The answer, calling for a conclusion of law, was properly disallowed. Irving Johnson’s testimony was quite rightly restricted to chemical analysis. He was not allowed to testify about the effect of alcohol on humans, an area beyond his expertise.

The cross-examination of Dr. Steele did not exceed permissible bounds and, contrary to appellant’s contention, he was not discredited at all.

Appellant urges that the trial court should have admitted the entire record from another case to impeach Dr. Hypolite Landry’s testimony that he had never made an error in labeling a case as suicide. Dr. Landry immediately corrected himself and admitted to having been wrong. There was, therefore, no need to impeach his testimony.

Appellant’s final contention is that the trial court erred in not giving all thirteen of plaintiff’s requested jury instructions. A comparison between the requested instructions and those that were actually given demonstrates that the jury was given adequate instruction as to the applicable law. Hanks v. Drs. Ranson, Swan & Burch, Ltd., 359 So.2d 1089 (La. App. 3rd Cir. 1978), writ denied 360 So.2d 1178 (1978). There was no need for the court to specifically instruct the jury as to the impairments caused by alcohol, such impairments being common knowledge.

Appellant's claim that the jury was not given the applicable law and that “the jury was confused” and therefore arrived at a verdict contrary to the law and evidence is wrong.

This trial was very hard fought. Plaintiff’s counsel objected to virtually any testimony or evidence supporting a finding that Lampton Dunaway committed suicide.

A careful review of the entire record convinces us that, far from suffering from the cumulative effect of numerous allegedly incorrect evidentiary rulings as urged by appellant, the jury heard the witnesses, considered the evidence and found Lampton Dunaway’s tragic death to be what it really was — a suicide. The note left by Dunaway, the fact there was a contact wound, the powder burns, the absence of a defective shotgun and all the testimony, particularly that of Officer Walter R. Mullins, Jr., make it all too clear that, despite all the testimonial conflict, Mr. Dunaway took his shotgun out of the closet, placed a shell in it, pointed the gun at his heart and pulled the trigger.

We can never know why decedent chose to kill himself. But we can determine that he did. A fair viewing of the evidence excludes every other reasonable hypothesis or explanation but suicide. The jury properly found that defendants had carried their burden of proof. Rome v. Life and Casualty Insurance Company of Tennessee, 336 So.2d 275 (La.App. 1st Cir. 1976), writ denied 338 So.2d 1155 (1976); Newdigate v. Acacia Mut. Life Ass’n of Washington, D.C., 180 La. 979, 158 So. 358 (1934); Webster v. New York Life Ins. Co., 160 La. 854, 107 So. 599 (1926).

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

AFFIRMED.

      . One juror failed to return for the second day of trial. All counsel stipulated to trial by a jury of eleven.


text:
    Warren J. and Ruth S. BOURGEOIS v. Michael B. O’NEIL and Peggy Ann O’Neil Eskew.
    No. 13861.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 15, 1980.

      Ralph Hillman, Thibodaux, for plaintiffs-appellees Warren J. and Ruth Bourgeois.
    Leslie J. Clement, Jr., Thibodaux, for defendants-appellants Michael B. O’Neil and Peggy Ann O’Neil Eskew.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

Plaintiffs, Warren J. and Ruth S. Bourgeois, purchased certain property and improvements in LaFourche Parish from defendants, Michael B. O’Neil and Peggy Ann O’Neil Eskew. When plaintiffs discovered defects in their roof, they sued for damages. Only Michael O’Neil was served. On January 29, 1980, plaintiffs took a preliminary default which was confirmed on February 7. Judgment against O’Neil was for $750, interest and costs.

On February 15, 1980, counsel for O’Neil filed a motion for a new trial claiming that on the day the preliminary default was confirmed, he, counsel for O’Neil, had checked the record out of the clerk’s office. The trial court was, therefore, unable to review evidence as to service, citation, entry of the preliminary default or the failure of defendant to answer or file responsive pleadings. It was further alleged that plaintiffs’ counsel had informally agreed to an extension of time for the filing of responsive pleadings and that he had not provided adequate notice of his intention to proceed with the default judgment.

Subsequent to a hearing, the motion for a new trial was denied. Defendant appeals, reurging the grounds for a new trial and also alleging that plaintiffs failed to state a cause of action.

A cursory reading of the petition shows that plaintiffs stated a cause of action in quanti minoris. LSA-C.C. Art. 2541. While the original petition was entitled “Petition for Damages,” every pleading shall be so construed as to do substantial justice, LSA-C.C.P. Art. 865, and pleadings are to be governed by their substance, not by the name a party uses. Cvitanovich v. Sorli, 347 So.2d 1204 (La.App. 1st Cir. 1977); Succession of Ridley, 247 La. 921, 175 So.2d 269 (1965).

Confirmation of default judgments is controlled by LSA-C.C.P. Art. 1702 which provides in part:

“A judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case.”

At the hearing on motion for a new trial, plaintiffs called Vernon Rodrigue, Deputy Clerk of Court. He testified that on the morning of the confirmation, plaintiffs’ counsel requested a copy of the charge card in the instant case. He further testified that the charge card is a record maintained by the clerk’s office which shows what items have been entered in the record and charged for by the clerk of court. No charges are made until entries in the record are actually filed.

Regarding the present case, Mr. Rodrigue reviewed the charge card and found no responsive pleadings filed by the defendant. The trial court was clearly correct in finding that plaintiffs had established a prima facie case. Furthermore, the only reason Mr. Rodrigue was called to testify was because counsel for defendant had taken the record. Without criticizing defense counsel, we must state that confirmation of a default judgment cannot be precluded by this means.

Appellant’s counsel urges that plaintiffs’ counsel informally agreed to an extension of time in which defendant might file responsive pleadings. There is, however, no conclusive proof that plaintiffs’ counsel agreed to any such extension.

For the foregoing reasons, the judgment appealed from is affirmed. All costs, both trial and appellate, are to be paid by Michael B. O’Neil.

AFFIRMED.


text:
    Edison FLATEAU and Amy Flateau v. Dr. James A. THOM III et al.
    No. 13869.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 15, 1980.
    William C. Dupont, of Dupont, Dupont, & Dupont, Plaquemine, for plaintiffs-appellants Edison Flateau and Amy Flateau.
    F. W. Middleton, Jr., of Taylor, Porter, Brooks & Phillips, Baton Rouge, for defendants-appellees Dr. James A. Thom III et al.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

Plaintiffs, Edison and Amy Flateau, brought suit against Dr. James A. Thom, III, and others claiming that Dr. Thom had, without obtaining Amy Flateau’s consent and over the objection of Edison Flateau, sterilized Amy Flateau via tubal ligation. Mrs. Flateau prayed for damages of $1,810,-000 while her husband sought $690,000 for mental anguish and the inability to father children during the remainder of his marriage.

Following a jury trial and pursuant to its verdict, judgment was signed awarding $15,000 to Amy Flateau and rejecting the demands of Edison Flateau. All costs, including $950 in expert witness fees, were assessed against Dr. Thom.

Plaintiffs have appealed specifying that the jury erred in 1) awarding the inadequate sum of $15,000 to Mrs. Flateau and 2) failing to award damages to Mr. Flateau.

Plaintiffs urge that Mrs. Flateau was “pressured, coerced and humiliated . without her legal, valid and competent informed consent, to be sterilized” by Dr. Thom. The record does not support this claim.

Mrs. Flateau, with Dr. Thom as her obstetrician, delivered her second child on September 5, 1975. The baby boy was normal save for a missing left forearm and hand.

Dr. Thom, just after the delivery, learned from a nurse that the Flateaus had previously been marijuana users. When Mr. Fla-teau approached him, shortly afterward, to find out why the child had a deformity, Dr. Thom explained that it was impossible to know for certain, but that he, Dr. Thom, had recently been reading that the use of drugs, including marijuana, had been implicated in the possible causation of abnormal births. Dr. Thom advised that, to prevent the possibility of future deformed children, the Flateaus might want to consider sterilization. The matter was then left with Mr. Flateau to discuss with his wife.

Dr. Thom called plaintiffs twice more on September 5. He discussed the matter briefly with Mrs. Flateau during one call and spoke to her husband during both. Sometime thereafter, plaintiffs advised Dr. Thom by telephone that the decision had been made for Mrs. Flateau to be sterilized. The operation was performed without complications on September 8, 1975.

Suit was instituted on September 7, 1976, just prior to the tolling of prescription.

At trial, Amy Flateau clearly testified that, prior to the birth of her second child, she knew tubal ligation would permanently prevent future children. She signed a permission slip for the operation knowing what she was going into surgery for. Her testimony reveals not that Dr. Thom ordered or pressured her to be sterilized but rather that his mention of her prior use of marijuana made her feel guilty. On redirect examination she testified that she wished she had asked more about the operation’s irreversibility.

Dr. Thom testified that he told Edison Flateau regarding the operation that “really it’s up to you to make the decision.” Defendant’s testimony shows great concern for plaintiffs’ well-being rather than undue pressure. Defendant did admit that at no time did he have a full discussion with Amy Flateau about all material aspects of the operation and that he failed to follow hospital procedures requiring consultation with other physicians prior to sterilization.

The jury, by a nine to three vote, awarded Mrs. Flateau $15,000 in damages, presumably because Dr. Thom failed to discuss fully the matter with her. In view of her admitted knowledge and consent and the record as a whole, that verdict will not be disturbed. Steele v. St. Paul Fire and Marine Insurance Company, 371 So.2d 843 (La.App. 3rd Cir. 1979), cited by appellants as authority for a $50,000 award, is inapplicable. In Steele, a $50,000 award was made by the appellate court because the district court made no award. In the present case, the jury awarded $15,000. We do not have a basis to change that award because the jury did not clearly abuse its “much discretion.” LSA-C.C. Art. 1934(3); Reck v. Stevens, 373 So.2d 498 (1979). See also Engolia v. Cumis Insurance Society, Inc., 383 So.2d 1055 (La.App. 1st Cir. 1980).

The jury rejected Edison Flateau’s demands. While the facts do not support any award in his favor, we note that defense counsel has filed a peremptory exception of no cause of action in this court. The timeliness of this exception is not an issue. LSA-C.C.P. Art. 927.

As a matter of law, Edison Flateau has no cause of action for injury, short of death, to another person, whether that person be his wife, unlawfully sterilized, or any other person harmed in any other manner. Steele v. St. Paul Fire and Marine Insurance Company, supra; Bourque v. American Mutual Liability Insurance Company, 345 So.2d 237 (La.App. 3rd Cir. 1977); McKey v. Dow Chemical Co., Inc., 295 So.2d 516 (La.App. 1st Cir. 1974); Black v. Carrollton Railroad Co., 10 La.Ann. 33 (1855).

For the foregoing reasons, the judgment appealed from is affirmed. All costs of this appeal are to be paid by Edison Flateau and Amy Flateau.

AFFIRMED.

      . Suit was filed under the name Flateau. The correct spelling of plaintiffs’ name is Flatau.


text:
    Walter FELDER v. GEORGIA PACIFIC CORP., Henry L. Turner, and Hartford Accident & Indemnity Co.
    No. 13874.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 15, 1980.
    Rehearing Denied Jan. 26, 1981.
    Joe R. Cortina, Baton Rouge, for plaintiff-appellant, Walter Felder.
    Daniel R. Atkinson, Baton Rouge, for defendant-appellee, Georgia Pacific Corporation, Henry L. Turner and Hartford Accident & Indemnity Co.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

On February 12, 1979, Walter Felder, a passenger in a truck driven by Larry W. Severio, was injured when the vehicle was struck by a truck owned by Georgia Pacific Corporation and driven by Henry L. Turner. Felder brought suit against Turner, Georgia Pacific and Hartford Accident & Indemnity Company, the insurer of Turner and Georgia Pacific.

Defendants filed a peremptory exception of res judicata on the ground that Felder had, on June 25, 1979, for consideration of $700.00, signed a release and settlement of all claims against the named defendants arising out of the February 12 accident. From a judgment maintaining the exception, plaintiff appeals. We affirm.

Appellant contends there was no compromise because 1) there was no consideration for the release, 2) the release did not encompass the whole oral contract and 3) both parties did not sign the release.

It is obvious that consideration was paid for Felder’s release. That the payment was by draft and not in cash is of no moment. Hartford’s draft was sent to Felder on June 26, 1979, the day after he signed the release. Felder is bound by the release and may not rely on his refusal to accept payment in support of his plea of lack of consideration. Tooke v. Houston Fire and Casualty Insurance Company, 122 So.2d 109 (La.App. 2nd Cir. 1960); Daley v. New Orleans Ry. & Light Co., 133 La. 270, 62 So. 903 (1913).

Appellant claims that the release as executed does not contain all aspects of the compromise. This argument is insupportable. The release states in part:

“I Walter Felder.for the sole consideration of Seven Hundred & no/100 Dollars . do hereby release.”

Clearly, any discussion prior to execution of the release dealing with different modes or amounts of consideration was merely preliminary negotiation. The release is complete on its face and no parol evidence can be admitted to vary the terms. LSA-C.C. Art. 2276.

Felder’s last objection to the compromise is that Hartford did not sign it. This is true, but irrelevant. Hartford, in answer to interrogatories propounded by counsel for Felder, admitted that Mr. William B. Petty, Jr., had authority to compromise claims. Petty made the offer of settlement, witnessed Felder’s signing of it, and immediately ordered that the draft be sent. Even if Petty had no authority, Hartford’s tender of the draft indicated its assent.

LSA-C.C. Art. 3071 defines a transaction or compromise:

“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.”

Felder and Hartford, through its agent, Petty, executed a compromise. Both are bound by it. Felder may not, in an obvious attempt to reap greater benefits, avoid the effect of his release by using tortured and incorrect reasoning to show that there never was a compromise. In the absence of error in the person, fraud or violence, none of which has been alleged, the compromise will stand. LSA-C.C. Art. 3079.

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

AFFIRMED.


text:
    LIVINGSTON ROOFING COMPANY, INC. v. Samuel B. KATZ.
    No. 13875.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 15, 1980.

      Jerry F. Davis, Baton Rouge, for plaintiff-appellee Livingston Roofing Co., Inc.
    Martin C. Schroeder, Jr., Baton Rouge, for defendant-appellant Samuel B. Katz.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

In 1976, Shatter Chenevert, owner of Livingston Roofing Company, Inc., was contacted by two men, Briggs and Birnbaum, relative to repairing roof leaks at the Village Square Shopping Center in Baton Rouge. Briggs and Birnbaum, claiming to represent the shopping center’s owners, had an office in, and access throughout, the center. Furthermore, they knew about the building’s workings and machinery.

Chenevert inspected the roof and informed Briggs and Birnbaum that the roof needed replacement rather than repair. Nevertheless, the men requested that Chenevert repair it in spite of his protestations that mere repair was insufficient.

Livingston Roofing made the initial repairs but was called back twice for further work. Three bills were submitted to Aries Engineering of Baton Rouge. Those invoices were for $4,660.14, $283.09 and $215.41. Partial payment was made by Village Square Construction of New Orleans. The entire bill for $283.09 was paid but only $3,000.00 of the $4,660.14 bill and none of the $215.41 charge was paid.

Chenevert, eventually learning that Samuel B. Katz was part owner of Village Square, through counsel demanded payment of the balance. On February 14,1978, using Village Square stationery, Katz answered as follows:

“Mr. E. Wade Shows
Adcock & Dupree
Attorneys at Law
621 Main Street
P.O. Drawer 3037
Baton Rouge, Louisiana 70821
Dear Mr. Shows:
Your letter addressed to the writer of February 13, 1978, has been received for which I thank you.
It was my understanding that Livingston Roofing Company, Inc., had been paid in full for the work performed at Village Square Shopping Center.
Unfortunately, satisfaction was never gotten from the work performed by Livingston Roofing Company, Inc., and ultimately it was necessary to bring in another roofer to sove (sic) the problem. I hereby deny any outstanding debt to your client as it is the writer’s feeling that he has been paid in full for the work performed.
Should additional information be needed concerning this matter kindly contact me at the address and phone on the letterhead.
Assuring you of my full cooperation,
I remain
/s/Samuel B. Katz Samuel B. Katz Partner”

Subsequent to this letter, Chenevert instituted proceedings in the name of Livingston Roofing Company, Inc. After trial, Katz was condemned to pay $1,875.65, interest and costs. Katz appeals. We affirm as amended.

Appellant specifies that the trial court erred in:

1. admitting evidence which enlarged the pleadings,
2. admitting hearsay to establish the agency, and
3. finding an agency relation in which Katz was a principal obligated to plaintiff.

After oral argument, appellant filed peremptory exceptions of no right or cause of action and prescription.

In the original petition, plaintiff alleged that Katz owed $2,158.64. At trial, some testimony was heard, over defendant’s objection, that the contract had been on a cost plus rather than a fixed basis. Appellant urges that this testimony prejudiced his ability to defend.

A review of the record demonstrates that whatever the contractual details, the buildings, roof leaks, work done and amount claimed were the same. There was no enlargement of the pleadings and appellant was not prejudiced.

Katz claims that hearsay was improperly allowed to establish the agency of Briggs and Birnbaum. It is true that the declarations and representations of an alleged or reputed agent are not admissible evidence to prove the fact of his agency against the principal. Lou-Ark Equipment Rentals Co., Inc. v. Hong Ah Fong, 355 So.2d 1019 (La.App. 4th Cir. 1978), writ denied 357 So.2d 1167 (1978). However, the finding of an agency and the liability of Katz are based on his ratification of the acts of Briggs and Birnbaum rather than on any claims made by them as purported agents.

Katz’ letter of February 14, 1978, together with the checks for partial payment of Livingston’s bills, clearly show that Katz got the benefit of, acknowledged and partially paid for plaintiff’s work. These facts show the clear and absolute intent required to ratify the acts of Briggs and Birnbaum. Bamber Contractors, Inc. v. Morrison Engineering & Contracting Company, Inc., 385 So.2d 327 (La.App. 1st Cir. 1980).

There is no merit to appellant’s claim of prescription because the action is one in contract and has nothing to do with liens.

Appellant, in a somewhat confusing exception filed after trial, claims that plaintiff has neither a right nor a cause of action. We believe these exceptions relate to the argument presented at trial that Village Square is a partnership in commen-dam rather than an entity owned in indivi-sión by Katz.

If Village Square were a partnership, plaintiff would be required to name the partnership as a party defendant or this court, on its own motion, could raise the peremptory exception of nonjoinder of an indispensable party. LSA-C.C.P. Arts. 737, 927. Venable v. Liberty Mutual Insurance Company, 142 So.2d 639 (La.App. 3rd Cir. 1962).

There is, however, no real proof in the record that Village Square is a partnership. Katz’ testimony and his signature in the letter of February 14, 1978, are the only signs of a partnership’s existence. Furthermore, partnership’s in commendam must be in writing and recorded. LSA-C.C. Art. 2845.

Katz, as record owner, was the proper party defendant. Katz, the self-acknowledged beneficiary of plaintiff’s work, must pay for same.

For the foregoing reasons, the judgment appealed from is affirmed except that the judgment casting Katz for $1,875.65 is amended to read $1,875.55, the adjustment being due to a minor clerical error by the trial court. All costs, both trial and appellate, are to be paid by Samuel B. Katz.

AFFIRMED AS AMENDED.


author: PONDER, Judge.

text:
    SUCCESSION of Melissa Mary RAIFORD.
    No. 13621.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 15, 1980.
    Rehearing Denied Jan. 26, 1981.
    Writ Granted April 6, 1981.
    Iddo Pittman, Jr., Hammond, for Marie Raiford, Gwendolyn Brown Cooper, George Allen Cooper, and Deborah Cooper Gill.
    Allen B. Pierson, Jr., Ponchatoula, for Elzy Peter Raiford.
    Allen B. Pierson, Jr., Ponchatoula, for Floyd Travis Lavigne and Margaret Raiford Lavigne.
    Before LOTTINGER, PONDER and COLE, JJ.
   PONDER, Judge.

This is a contest of will case.

The issue is the validity of an olographic will, dated invalid by the trial court. We reverse.

In 1963, testatrix made a statutory will leaving her estate to her brother. Appellants, Marie Raiford, Gwendolyn Brown Cooper, George Allen Cooper and Deborah Gwen Cooper Gill contend the statutory will was revoked by the following, written in pencil in a small booklet:

“Monday, 8. 1968
I want gwen cooper to have what I got when I died My land and all
Melisa Raiford”

Appellees argue that the latter is ineffective as a will because: it was not proved to have been written by the testatrix; it does not have a certain date, it does not show donative intent.

The trial court did not assign reasons. However, we have examined the record closely and have decided that the court must have concluded that the instrument, whatever its legal effect, was written by Melissa Mary Raiford. The proof is preponderant.

Recent jurisprudence permits the consideration of extrinsic evidence to establish the certainty of the date of an olographic will. Succession of Boyd, 306 So.2d 687 (La.1975); Succession of Greer v. Wiggins, 315 So.2d 46 (La.App. 2d Cir. 1975). Even when part of the date is missing, its certainty may be established. Succession of White, 367 So.2d 161 (La.App. 2d Cir. 1979).

The fact that the eighth day of the month occurred on Monday only in February, April and July in 1968, together with the testimony that the writing took place in the summer, and the existence of the date of July 8 on the note in the booklet immediately following the purported will fixes the date as July 8,1968. We find it sufficient.

We conclude, too, that the instrument shows donative intent sufficient to have it constitute a will. It expresses a desire that the entire estate devolve on Gwen Cooper, who, it was proved, was something of a favorite with the testatrix. LSA-C.C. Arts. 1712-1714; Carter v. Succession of Carter, 332 So.2d 439 (La.1976); Succession of Fertel, 208 La. 614, 23 So.2d 234 (1945).

Our decision is in accord with the strong public policy of sustaining the validity of wills and giving effect to the testator’s wishes when possible. Succession of La-Barre, 179 La. 45, 153 So. 15 (1934).

For these reasons, the judgment of the lower court is reversed and there is now judgment declaring the purported will and testament of Melissa Mary Raiford, dated March 18, 1963 and probated December 29, 1972, null and void, setting aside the order probating it, and allowing petitioners to probate the will and testament dated July 8, 1968.

All costs are assessed to the appellees.

The case is remanded for further proceedings not inconsistent with the above decision.

REVERSED, RENDERED AND REMANDED.


author: PONDER, Judge. EDWARDS, Judge,

text:
    Etna STAFFORD v. CITY OF BATON ROUGE and Parish of East Baton Rouge.
    No. 13749.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 15, 1980.
    Rehearing Denied Jan. 26, 1981.
    Guy A. Módica, Baton Rouge, for plaintiff-appellant, Etna Stafford.
    Samuel R. Cicero, Baton Rouge, for defendant-appellee, City of Baton Rouge and Parish of East Baton Rouge.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

This is a suit for wages, penalties and attorney fees under the provisions of LSA-R.S. 23:631-632.

Plaintiff appealed the dismissal of her suit on a motion for summary judgment. The sole issue is the applicability of LSA-R.S. 23:631-632 to a governmental agency.

We affirm.

When plaintiff was discharged from her job with the City-Parish of East Baton Rouge, she demanded her wages on two occasions. Defendant at first insisted no wages were due, and later that there was no wage dispute. Finally, the defendant filed a motion for summary judgment on the basis that the statutes do not apply to governmental agencies. The trial court relying on Barcena v. City of New Orleans, 221 La. 652, 60 So.2d 74 (1952) granted the judgment of dismissal.

In Barcena the court found that the phrase “person, individual, firm or corporation” did not include a governmental agency. This court held in Hays v. Louisiana Wild Life and Fisheries Commission, 165 So.2d 556 (1st Cir. 1974), writs refused 246 La. 855, 167 So.2d 672 (1964), that the amendment to “person” instead of “person, individual, firm or corporation” did not have the effect of making governmental agencies liable.

Appellant contends that the Louisiana Constitution of 1974 dictates a contrary result. The provision cited, Art. 12, Sec. 10(A), (B), is the one declaring no immunity in contract or tort. The Barcena case was not founded on such immunity, but rather on statutory interpretation.

It might be argued that the use of the term, “employer” in Section 632 indicates an intention to require a different result. However, the term “person” is still used in Section 631. An intention to change the result could have been much more plainly stated.

For these reasons, the judgment is affirmed at appellant’s costs.

AFFIRMED.

EDWARDS, J., dissents and will assign reasons.

EDWARDS, Judge,

dissents.

Etna Stafford, an accountant for the City-Parish of East Baton Rouge, was fired from her job on February 9, 1978. On February 10, she orally demanded her final paycheck. An identical demand was made by letter dated February 23. When Stafford’s final check was not forthcoming, she filed suit against the City of Baton Rouge and Parish of East Baton Rouge seeking wages owed, penalty wages and attorney fees, all pursuant to LSA-R.S. 23:631-632.

The City-Parish initially denied plaintiff’s claim for wages on the basis that no wages were due. Defendants subsequently filed a motion for summary judgment urging that there no longer was a wage dispute and that, at any rate, R.S. 23:631-632 were not applicable to municipalities.

The trial court, finding Barcena v. City of New Orleans, 221 La. 652, 60 So.2d 74 (1952), controlling, granted defendants’ motion for summary judgment and dismissed plaintiff’s suit at her cost.

In Barcena, the Supreme Court construed Act 138 of 1936, the forerunner of R.S. 23:631-632. That statute, which required any “person, individual, firm or corporation” to pay a discharged employee within twenty-four hours after dismissal, was found not to apply to those engaged in public service. The Supreme Court gave no cogent reasons for its holding.

Since Barcena, the statute has been changed. It now applies to “the person employing” the discharged or resigned employee. Barcena, therefore, is no longer the interpretive authority it was when decided and we are not bound to follow it.

This court, in Hays v. Louisiana Wild Life and Fisheries Commission, 165 So.2d 556 (La.App. 1st Cir. 1964), writs refused 246 La. 855, 167 So.2d 672 (2 cases) (1964), cited Barcena and held that despite the 1950 sub-summation of “individual, firm or corporation” into the all-encompassing “person,” R.S. 23:631-632 did not apply to public bodies.

A cursory examination of the statute’s text makes clear that no employer is exempted from its sweep.

R.S. 23:632 applies to “Any employer who fails.” to comply with R.S. 23:631. “Any employer” means what it says — any employer. When the state or any of its political subdivisions hires an employee, that public body becomes an employer subject to R.S. 23:632.

It cannot be argued with any rationality that while section 632 applies to “any employer,” that section is narrowed by section 631 and applies only to certain persons employing, not including public bodies. The legislative decision to include individuals, firms and corporations within the meaning of “person” as used in section 631 was clearly based on a desire for simplification and reduction rather than for complication and proliferation. I cannot believe that our legislators would make the effort to eliminate the express terms of “individuals, firms and corporations” and yet intend to retain the allegedly implied exception of public bodies. Furthermore, it is obvious that the words “person employing” found in section 631 can only mean an employer. As such, that “person employing” is bound by section 632.

R.S. 23:631-632 clearly applies to all persons employing another, including the state and its political subdivisions. To the extent that it holds otherwise, Hays v. Louisiana Wild Life and Fisheries Commission, supra, is wrong and should be overruled.

This position is buttressed by both the continued erosion of sovereign immunity and by the trend toward application of strict liability to the state.

Board of Commissioners of the Port of New Orleans v. Splendour Shipping & Enterprises Company, Inc., 273 So.2d 19 (1973), overruled Miller v. Board of Commissioners of Port of New Orleans, 199 La. 1071, 7 So.2d 355 (1942), and held that public bodies were not immune from suit in tort. This holding now has constitutional status.

Article 12, Section 10(A) of the Louisiana Constitution has not been construed narrowly but has been recognized as an “unequivocal constitutional rejection of the doctrine of sovereign immunity.” Jones v. City of Baton Rouge, 388 So.2d 737 (1980).

LSA-R.S. 23:631-632 fashions a remedy for employees who have been arbitrarily denied final compensation from their employment contract. Our constitution gives employees the right to sue the state in contract. To grant that right but to deny the remedy solely because a public body is the employer would fly in the face of the trend toward making the state, its subdivisions and employees accountable for their acts and would, in practical terms, make the recovery of modest sums arbitrarily withheld by a capricious supervisor virtually impossible.

Barcena has lost its precedential viability on the technical basis of statutory rewording. Furthermore, since Barcena was decided in an era when the state and its subdivisions could do no wrong, I have no doubt that were the Supreme Court to be faced with the case today, the result would be reversed.

The majority’s reliance on Barcena and Hays is misplaced and results in such an unfairness to Etna Stafford that I must dissent.

      . LSA-R.S. 23:631:
      “A. Upon the discharge or resignation of any laborer or other employee of any kind whatever, it shall be the duty of the person employing such laborer or other employee to pay the amount then due under the terms of employment, whether the employment is by the hour, day, week, or month, not later than three days following the date of discharge or resignation. Said payment shall be made at the place and in the manner which has been customary during the employment, except that payment may be made via United States mail to the laborer or other employee, provided postage has been prepaid and the envelope properly addressed with the employee’s or laborer’s current address as shown in the employer’s records. * * * ”
      LSA-R.S. 23:632:
      “Any employer who fails or refuses to comply with the provisions of R.S. 23:631 shall be liable to the employee either for ninety days wages at the employee’s daily rate of pay, or else for full wages from the time the employee’s demand for payment is made until the employer shall pay or tender the amount of unpaid wages due to such employee, whichever is the lesser amount of penalty wages. Reasonable attorney fees shall be allowed the laborer or employee by the court which shall be taxed as costs to be paid by the employer, in the event a well-founded suit for any unpaid wages whatsoever be filed by the laborer or employee after three days shall have elapsed from time of making the first demand following discharge or resignation.”

      . Article 12, Section 10(A) of the Louisiana Constitution of 1974 provides:
      “Neither the state, a state agency, nor a political subdivision shall be immune from suit and liability in contract or for injury to person or property.”

      . Jones held that the strict liability of LSA-C.C. Art. 2317 applies to municipalities.


text:
    Paula K. COBB v. COLEMAN OLDSMOBILE, INC.
    No. 13791.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 15, 1980.
    Rehearing Denied Jan. 26, 1981.

      Ralph W. Brewer, Baton Rouge, for plaintiff-appellee Paula K. Cobb.
    Robert L. Kleinpeter, Baton Rouge, for defendant-appellant Coleman Oldsmobile, Inc.
    Neal D. Hobson, New Orleans, for third party defendant-appellant BMW of North America, Inc.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

In this redhibition suit, the trial court rescinded plaintiffs purchase of an automobile from defendant-seller and awarded repair costs and attorney’s fees. The court then awarded defendant the entire amount of the judgment against third-party defendant manufacturer.

The issues are: prescription of defendant-seller’s claim against third-party defendant-manufacturer, redhibitory defects of the automobile, award of attorney fees and quantum of damages.

We reverse in part, amend in part and affirm in part.

From the date of purchase of a new BMW by plaintiff from defendant Coleman Oldsmobile, Inc. (Coleman) in October of 1974 until the final return of the automobile in June, 1976, there were repeated complaints and repairs and attempted repairs, of numerous complaints of faulty odometer, windshield wipers, buzzer for the ignition system, failure of the engine, emergency brake, park gear, air conditioner, exhaust system, disc brakes and overheating. Eventually, Coleman evidently repaired all except the overheating problem, which later resulted in permanent damage.

BMW alleges Coleman’s third-party claim is an action in redhibition pursuant to LSA-C.C. Art. 2531 and has prescribed. LSA-C.C. Arts. 2534, 2545 and 2546.

BMW’s argument is that the words “corresponding and similar right of action” necessarily means an action in redhibition subject to prescription of one year that begins to run at the same time prescription begins to run against the purchasers. We do not agree. The statute speaks in terms of the seller being held liable before the “similar right of action against the manufacturer” arises. We find no error in the court’s overruling of BMW’s exception of prescription.

BMW asserts that the automobile did not possess redhibitory vices; that the overheating and extensive engine damage resulted from plaintiff’s misuse of the auto combined with the effects of an accidental crimped tail pipe or from negligent repair by defendant Coleman; that the other various complaints of plaintiff including the defective transmission and emergency brake were ultimately repaired by Coleman.

Upon conflicting evidence, the court determined the overheating problem was due to a defect in the engine’s manufacture. We cannot say there was manifest error.

Because we find the overheating engine a redhibitory vice sufficient to rescind the sale, we need not address defendant’s allegation that the other major defects were repaired. We note, however, that this court has held that multiple defects can collectively form the basis of a redhibitory action even though the defects have eventually been repaired. Davidson v. New Roads Motor Co. Inc., 385 So.2d 319 (La.App. 1st Cir. 1980); Cangelosi v. McInnis Peterson Chevrolet, Inc., 373 So.2d 1346 (La.App. 1st Cir. 1979).

The next issue concerns attorney fees. BMW and Coleman claim plaintiff is not entitled to an award for attorney fees. Plaintiff requests increased attorney fees. We feel the claim of BMW and Coleman has merit. The purchaser of a vehicle is not entitled to an award of attorney’s fees against the seller in a redhibition action where the seller is in good faith and the buyer has not made the manufacturer a party defendant. LSA-C.C. Art. 2531, supra; Smith v. Max Thieme Chevrolet Co., Inc., 315 So.2d 82 (La.App. 2d Cir. 1975); Heckel v. Travelers Insurance Co., 340 So.2d 363 (La.App. 1st Cir. 1976). The trial court was in error in awarding plaintiff $2,500.00 in attorney fees against seller Coleman.

However, we feel Coleman is entitled to attorney fees against third-party defendant. A manufacturer is presumed to know the defects of the thing he manufactures and is therefore in bad faith and liable for attorney fees to the buyer under LSA-C.C. Art. 2545, supra. The court has interpreted this statute to include a buyer who, as an intermediary vendor, buys the car for resale. Porche v. Robinson Bros. Inc., 349 So.2d 975 (La.App. 1st Cir. 1977), writ denied 351 So.2d 171.

We find no merit in plaintiff’s request for increased attorney’s fees. An increase in attorney fees for services rendered on appeal is usually awarded when the defendant appeals and obtains no relief on appeal. The basis for awarding additional attorney’s fees is that the successful litigant must incur additional expenses to protect his rights on appeal. Riche v. Krestview Mobile Homes, Inc., 375 So.2d 133 (La.App. 3rd Cir. 1979). Here plaintiff has sought additional relief denied at trial. For this reason we feel additional attorney’s fees are not warranted.

Plaintiff claims she is entitled to nonpecuniary damages for loss of intellectual fulfillment due to the redhibitory defects of the automobile under LSA-C.C. Art. 1934(3). We find no merit in this claim. Unless a contract has for its principal or exclusive object some form of intellectual gratification, nonpecuniary damages are not recoverable under C.C. Art. 1934. Stratton-Baldwin Co., Inc. v. Brown, 343 So.2d 292 (La.App. 1st Cir. 1977); Meador v. Toyota of Jefferson, Inc., 332 So.2d 433 (La.1976).

For the above reasons, the judgment of the trial court is reversed insofar as it grants judgment in favor of Paula K. Cobb against Coleman Oldsmobile, Inc. for $2,500.00 in attorney fees. That portion of the judgment in favor of third-party plaintiff, Coleman Oldsmobile, Inc., against third-party defendant BMW of North America, Inc. which represents the $2,500.00 in attorney fees is also reversed. It is now ordered, adjudged and decreed that there be judgment in favor of third-party plaintiff, Coleman's Oldsmobile, Inc. against third-party defendant BMW of North America, Inc. in the amount of $2,500.00 for Coleman’s attorney fees. In all other respects the judgment is affirmed. Costs of the appeal are to be split equally between plaintiff and defendant BMW.

REVERSED IN PART, AMENDED AND RENDERED IN PART, AFFIRMED IN PART.

      . LSA-C.C. Art. 2531:
      “The seller who knew not the vices of the thing is only bound to repair, remedy or correct the vices as provided in Article 2521, or if he be unable or fails to repair, remedy or correct the vice, then he must restore the purchase price, and reimburse the reasonable expenses occasioned by the sale, as well as those incurred for the preservation of the thing, subject to credit for the value of any fruits or use which the purchaser has drawn from it.
      In any case in which the seller is held liable because of redhibitory defects in the thing sold, the seller shall have a corresponding and similar right of action against the manufacturer of the thing for any losses sustained by the seller, and further provided that any provision of any franchise or manufacturer-seller contract or agreement attempting to limit, diminish or prevent such recoupment by the seller shall not be given any force of effect.”

      . LSA-C.C. Art. 2534:
      “The redhibitory action must be instituted within a year, at the farthest, commencing from the date of the sale.
      This limitation does not apply where the seller had knowledge of the vice and neglected to declare it to the purchaser.
      Nor where the seller, not being domiciliated in the State, shall have absented himself before the expiration of the year following the sale; in which case the prescription remains suspended during his absence.”
      LSA-C.C. Art. 2545:
      “The seller, who knows the vice of the thing he sells and omits to declare it, besides the restitution of price and repayment of the expenses, including reasonable attorneys’ fees, is answerable to the buyer in damages.”
      LSA-C.C. Art. 2546:
      “In this case, the action for redhibition may be commenced at any time, provided a year has not elapsed since the discovery of the vice.
      This discovery is not to be presumed; it must be proved by the seller.”

      . LSA-C.C. Art. 1934(3):
      “Although the general rule is, that damages are the amount of the loss the creditor has sustained, or of the gain of which he has been deprived, yet there are cases in which damages may be assessed without calculating altogether on the pecuniary loss, or the privation of pecuniary gain to the party. Where the contract has for its object the gratification of some intellectual enjoyment, whether in religion, morality or taste, or some convenience or other legal gratification, although these are not appreciated in money by the parties, yet damages are due for their breach; a contract for a religious or charitable foundation, a promise of marriage, or an engagement for a work of some of the fine arts, are objects and examples of this rule.
      In the assessment of damages under this rule, as well as in cases of offenses, quasi offenses, and quasi contracts, much discretion must be left to the judge or jury, while in other cases they have none, but are bound to give such damages under the above rules as will fully indemnify the creditor, whenever the contract has been broken by the fault, negligence, fraud or bad faith of the debtor.”