author: LEMMON, Justice,

text:
    State of Louisiana In the INTEREST of Ray Mitchell CALDWELL, Jr.
    No. 67699.
    Supreme Court of Louisiana.
    July 24, 1980.
   On application' for Writ of Certiorari to the Juvenile Court, Parish of Caddo; Gor-man E. Taylor, Judge.

In re Ray Mitchell Caldwell, Jr., Applying for Writs of Certiorari, Prohibition, Mandamus and Stay Order, Parish of Caddo, No. 24,408-C.

Denied. Moot.

DIXON, C. J., would grant the writ.

DENNIS, J., would grant the writ.

LEMMON, J., concurs and assigns reasons.

LEMMON, Justice,

concurring.

This matter is before the court on defendant’s June 2, 1980 application for supervisory writs, complaining of the trial court’s May 27th order transferring the 16-year old defendant from the Juvenile Court of Cad-do Parish to the criminal docket of the First Judicial District Court, to be tried for the crime of aggravated rape. The application basically seeks a review by this court of the transfer proceedings conducted pursuant to R.S. 13:1571.1 and C.J.P. Art. 106, but defendant also requested an order staying grand jury proceedings against him, pending this court’s action 'on his application.

On June 4 the court refused to stay grand jury proceedings and ordered the filing of a transcript of the transfer hearing in order to accord the review mandáted by R.S. 13:1571.4 B. On June 6 the grand jury indicted defendant for the March 10, 1980 crime. The court then instructed counsel for both sides to file briefs on the issue of whether defendant’s application had been rendered moot by the action of the grand jury. See State ex rel Coco, 363 So.2d 207 (La.1978).

On the issue of mootness defendant points out that the Coco case was decided under La.Const.1974, Art. 5, § 19, which at that time provided:

“Except for a person fifteen years of age or older who is alleged to have committed a capital offense or attempted aggravated rape, the determination of guilt or innocence, the detention, and the custody of a person who is alleged to have committed a crime prior to his seventeenth birthday shall be exclusively pursuant to special juvenile procedures which shall be provided by law. However, by law enacted by two-thirds of the elected members of each house, the legislature may (1) lower the maximum ages of persons to whom juvenile procedures would apply and (2) establish a procedure by which the court of original jurisdiction may waive such special juvenile procedures in order that adult procedures would apply in individual cases.”

Defendant further points out that Section 19 was amended, effective November 30, 1979 (after the Coco decision and before the crime at issue in this case), to read as follows:

“The determination of guilt or innocence, the detention, and the custody of a person who is alleged to have committed a crime prior to his seventeenth birthday shall be pursuant to special juvenile procedures which shall be provided by law. However, the legislature may (1) by a two-thirds vote of the elected members of each house provide that special juvenile procedures shall not apply to juveniles arrested for having committed first or second degree murder, manslaughter, aggravated rape, armed robbery, aggravated burglary or aggravated kidnapping, and (2) by two-thirds vote of the elected members of each house lower the maximum ages of persons to whom juvenile procedures shall apply, and (3) by two-thirds vote of the elected members of each house establish a procedure by which the court of original jurisdiction may waive special juvenile procedures in order that adult procedures shall apply in individual cases. The legislature, by a majority of the elected members of each house, shall make special provisions for detention and custody of juveniles who are subject to the jurisdiction of the district court pending determination of guilt or innocence.”

Defendant accordingly argues (1) that the 1979 amendment to Section 19 removed the exception for juveniles over 15 years of age, while permitting the legislature to enact statutory exceptions, and (2) that since the legislature had failed to enact such an exception at the time of the crime for which defendant is charged, the juvenile court has exclusive jurisdiction unless that jurisdiction is waived in a transfer proceeding.

I conclude that the grand jury indictment was proper under R.S. 13:1570 (A)(5), which is not in conflict with La.Const.1974, Art. 5, § 19, as amended in 1979, and which was not intended to be affected by the 1979 amendment.

R.S. 13:1570(A)(5) was amended in 1975 to overrule legislatively the decision in State ex rel. Moore v. Warden, 308 So.2d 749 (La.1975). In the Moore case the 15-year old defendant was charged by indictment with the capital offense of first degree murder, but the state accepted a plea to the non-capital, responsive offense of second degree murder. Moore’s life sentence was set aside when the court held that the guilty plea divested the court of jurisdiction over the case. The 1975 amendment, allowing district courts to retain jurisdiction when juveniles charged with capital offenses enter guilty pleas to lesser included offenses, was adopted by a two-thirds vote of both houses.

R.S. 13:1570(A)(5) remained valid and viable in March, 1980, the date of the crime at issue here. Both R.S. 13:1570(A)(5) and R.S. 13:1571.1 (the transfer statute) drew their constitutional basis from the former La.Const.1974, Art. 5, § 19 (before the 1979 amendment), and neither statute is in conflict with Section 19, as amended. Indeed, one evident purpose of the 1979 amendment was to expand the legislature’s authority to provide for “automatic” jurisdiction of district courts for certain crimes, thereby eliminating the need for transfer proceedings. Moreover, implied repeal is not favored. Liter v. City of Baton Rouge, 245 So.2d 398 (La.1971). Accordingly, I conclude that the 1979 amendment to La.Const.1974, Art. 5, § 19 did not require re-enactment of all non-conflicting statutes enacted pursuant to the former Section 19’s grant of authority and therefore did not affect or restrict R.S. 13:1570(A)(5).

      . R.S. 13:1570(A)(5) provides:
      “Except as otherwise provided herein, the court shall have exclusive original jurisdiction in proceedings:
      A. Concerning any child whose domicile is within the parish or who is found within the parish:
      ******
      (5) Who violates any law or ordinance, except a child who, after having become fifteen years of age, is charged with having committed a capital crime, or a crime defined by any law defining attempted aggravated rape; provided that once such a child has been actually charged with a capital crime, armed robbery, or attempted aggravated rape, the district court shall retain jurisdiction over his case, even though the child pleads guilty to, or is convicted of, a lesser included offense: and a plea to, or conviction of, a lesser included offense shall not revest the juvenile court with jurisdiction of such a child.”


source: Caselaw Access Project

author: DIXON, C. J., DENNIS, J.,

license: Public Domain

text:
    STATE of Louisiana v. Gary POSER.
    No. 80-K-1840.
    Supreme Court of Louisiana.
    Aug. 12, 1980.
   In re Gary Poser, applying for writs of certiorari, prohibition, mandamus, and stay order. Parish of Orleans. Number 277-499.

Writ denied.

DIXON, C. J.,

concurs in the denial because the application does not show enough facts to justify a reduction.

DENNIS, J.,

dissents. Relator has properly invoked the supervisory jurisdiction of this Court, and the testimony of record fully supports his claim that the trial court has improperly refused a reduction of bail to $10,000. C.Cr.P. Arts. 317, 322.


author: DENNIS, J.,

text:
    James U. BLANCHARD, III, et al. v. James H. BROWN, Secretary of State for the State of Louisiana.
    No. 80-C-1848.
    Supreme Court of Louisiana.
    Aug. 14, 1980.
   In re James H. Brown, Secretary of State for the State of Louisiana, applying for Certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. No. 13,905.

Denied.

DENNIS, J.,

would grant. Act 588 of 1977, finally passed on July 10, 1977, contains provisions contrary to and irreconcilable with those of Act 523, which received final passage on July 9, 1977. The former law was, in part, impliedly repealed by the later expression of the legislative will. C.C. Arts. 1, 23. The lower court decisions reaching the opposite result are clearly incorrect.


text:
    STATE of Louisiana v. Wayne Robert FELDE.
    No. 80-K-1869.
    Supreme Court of Louisiana.
    Aug. 15, 1980.
   In re Wayne Robert Felde applying for Writs of Remedial and Supervisory, Parish of Rapides, No. 196,240.

Writ granted. Trial judge’s order of a mid-trial mental examination of defendant by the prosecution’s experts as to defendant’s mental condition at the time of the offense is vacated.

Since the prosecution was apprised of defendant’s insanity defense over one year before trial and was aware ten days before trial that defendant claims he is the victim of a mental disorder resulting from his exposure to agent orange, the prosecution cannot and does not claim to be surprised by this potential trial issue. Accordingly, the prosecution by delaying until the third day of trial its motion to have defendant examined on this issue (on a day in the midst of the defendant’s case) waived whatever right it may have had to such an examination.


author: DOUCET, Judge.

text:
    Curt E. BOWERS, Plaintiff-Appellee, v. D. C. GREENE and Greene’s Marine Products, Inc., Defendants-Appellants.
    No. 7455.
    Court of Appeal of Louisiana, Third. Circuit.
    May 21, 1980.
    Writ Refused Sept. 12, 1980.
    See also, La.App., 386 So.2d 925, and La.App., 386 So.2d 926.

      Charles L. Bull, Jr., Welsh, for defendants-appellants.
    Marcantel & Marcantel, Bernard N. Mar-cantel, Jennings, for plaintiff-appellee.
    . Camp, Carmouche, Palmer, Barsh & Hunter, J. A. Delafield, Lake Charles, for defendant-appellee.
    Before CULPEPPER, GUIDRY and DOUCET, JJ.
   DOUCET, Judge.

This case was consolidated for trial and appeal with Numbers 7456, Bowers v. Greene’s Marine Products, Inc., 386 So.2d 925, and 7457, Calcasieu Marine National Bank of Lake Charles v. Greene’s Marine Products, Inc., 386 So.2d 926, on the docket of this Court. Some of the issues are com-, mon to all three cases and will be discussed herein, although separate opinions in each case are being rendered on this day.

These cases arise out of a number of business transactions, which the defendants in this suit, D. C. Greene and Greene’s Marine Products, Inc., conducted in 1977 for the purpose of moving their boat manufacturing business from Texas to Louisiana. This suit is concerned with a lease that was entered into by the plaintiff, Curt E. Bowers, and the defendants on July 11, 1977.

Plaintiff leased to defendants a small tract of land and a building in rural Jefferson Davis Parish, west of Jennings, Louisiana. According to the terms of the written agreement, the land and building were to be used by defendants as a boat manufacturing plant. Defendants agreed to take immediate possession of the building, as it was, and modify it at their expense, according to their needs and specifications. Plaintiff agreed to construct two additional buildings on the property, “as soon as possible”, for defendants’ use. The rent provided for in the agreement was $900.00 per month for the original building, and upon their satisfactory completion, $475.00 per month for the second building and $100.00 per month for the third.

Shortly after the lease was executed, a concrete floor was installed in the building, and defendants began moving their manufacturing equipment from Texas. Part of the equipment was moved into plaintiff’s building, and part of it was stored in another building in nearby Roanoke, Louisiana. On Saturday, September 17, 1977, plaintiff learned that defendants had removed the equipment from the building in Roanoke. Defendants’ rental payments were two months in arrear at that time, and plaintiff became concerned, about protecting his lessor’s privilege on the equipment in his building.

On Monday, September 19,1977, plaintiff filed this suit to collect the past due rent. Later, he amended his petition to ask for an additional $2,808.24, which he paid to satisfy a materialman’s lien that was filed against his property by the supplier of the concrete used in the floor of the. building. In connection with the suit, plaintiff obtained a writ of sequestration of the movable property in the building. The writ was issued on the basis of plaintiff’s lessor’s privilege and his allegation that defendants would dispose of the property while the suit was pending. Plaintiff also obtained a writ of attachment based on the facts that defendants were nonresidents and that rent totalling $107,100.00 would become due under the terms of the 10-year lease.

Defendants answered plaintiff’s petition and reconvened, seeking the cancellation of the lease and damages for plaintiff’s allegedly wrongful attachment of their property. In addition, they filed a motion to dissolve the writs. After a hearing on the motion, the district court dissolved the writ of sequestration on the ground that by the time of the hearing the past due rent had been paid. The writ of attachment was maintained, however, on the grounds that defendants were nonresidents and that they were obligated to pay rent that was not yet due under the lease. That judgment was appealed by defendants and affirmed by this Court. Bowers v. Greene, 360 So.2d 639 (La.App. 3rd Cir. 1978), writ denied, 362 So.2d 801 (La.1978).

On April 18, 1979, the trial judge held a pre-trial conference with the attorneys for all of the parties. One of the matters that they dealt with was. discovery. Upon the request of one of the attorneys, counsel for defendants agreed to make arrangements for taking the deposition of D. C. Greene, who was living in Texas. In addition, the trial judge verbally ordered the parties to exchange the names of any witnesses, who would be called to testify, at least 10 days prior to the trial. However, he did not issue a written pre-trial order.

On May 1, 1979, counsel for defendants served notice on the other parties that he intended to take the depositions of D. C. Greene, Jack Tethford, Scott Stone, and Kay Greene on May 7, 1979 in Pasedena, Texas. The depositions of Kay Greene and Scott Stone were taken on that date, however, D. C. Greene failed to appear. On May 21,1979, defendants’ attorney mailed a notice to the other parties, informing them that D. C. Greene would be called to testify at the trial. That notice was not received until May 22, 1979, the day before the trial. Because of defendants’ failure to comply with his verbal pre-trial order and D. C. Greene’s failure to appear and be deposed, the trial judge excluded Greene’s testimony at the trial. It was allowed into the record as an offer of proof, but it was not considered by the trial judge in reaching his decisions.

After the trial, judgment was rendered in favor of plaintiff and against defendants in solido in the sum of $17,100.00 for the unpaid rent, plus $2,808.24 for the concrete that was installed in the building. Defendants’ reconventional demand was dismissed. Prom that judgment, defendants appeal. We affirm.

On appeal, defendants argue that the trial court erred in (1) excluding D. C. Greene’s testimony, (2) refusing to cancel the lease, (3) rendering judgment in favor of plaintiff for the amount of the unpaid rent, (4) refusing to award damages to defendants for plaintiff’s attachment of their property, and (5) awarding to plaintiff the $2,808.24 that he spent for the concrete.

EXCLUSION OF GREENE’S TESTIMONY

In support of their contention that the trial judge erred in excluding D. C. Greene’s testimony, defendants argue that the verbal pre-trial order was not binding on them, because LSA-C.C.P. Art. 1551 requires that such orders be written. They further argue that LSA-C.C.P. Art. 1473, which provides sanctions for the failure to appear for a deposition, is not applicable, because it requires that proper notice be served on the party failing to appear, and they contend that a party cannot serve notice on himself.

We would not be inclined to accept those rather technical arguments under any circumstances. They are advanced in the hope that defendants will be allowed to flagrantly disregard an order of the trial court and mislead the other parties with impunity. However, we find it unnecessary to discuss them, since we have determined that defendants were not harmed by the exclusion of the testimony.

In Naquin v. Maryland Casualty Company, 311 So.2d 48 (La.App. 3rd Cir. 1975), 313 So.2d 598 (La.1975), this Court enunciated the following principles:

“When a review of the record indicates the trial court judgment is correct and that justice has been done, the judgment will not be overturned because of errors which [do] not affect the merits. LSA-C. C.P. 2164; Shows v. Williamson, 256 So.2d 688 (La.App. 2 Cir. 1972). When error is detected, it must be weighed to determine whether such error is harmless or prejudicial. Lauro v. Travelers Insurance Company, 261 So.2d 261 (La.App. 4 Cir. 1972). When there is evidence before the trier of fact which, upon reasonable evaluation, furnishes a factual basis for the trial court’s finding, the appellate court, on review, should not disturb this factual finding absent manifest error. Canter v. Koehring Company, 283 So.2d 716 (La.1973).”

Having examined the proffered testimony in light of those principles, we conclude that the alleged error urged by defendants does not afford a basis for the reversal they seek.

It is clear from the trial judge’s oral reasons for judgment that even if he had considered Greene’s testimony, he would not have accorded any weight to it, because he found that Greene lacked credibility. He based that conclusion on several facts. One was that in dealing with different banks Greene used different financial statements, and there were numerous unexplained discrepancies between two of those statements that were introduced into evidence. Another was that the trial judge felt that by confusing the pleadings and failing to produce proof of ownership after being ordered to do so, Greene had deliberately attempted to mislead him about the ownership of the property attached by plaintiff.

After carefully examining the record, we conclude that the trial judge’s unfavorable assessment of Greene’s credibility was reasonable. When his testimony is read in light of it, it is clear that it could not help defendants. All of the relevant parts of it that they rely on are contradicted by other more credible evidence. Under those circumstances, we find that the exclusion of Greene’s testimony was not prejudicial to defendants.

CANCELLATION OF THE LEASE

Defendants argue that they are entitled to have the lease cancelled for two reasons. First, they argue that plaintiff breached his obligation under LSA-C.C. Art. 2692 to maintain them in peaceable possession of the leased premises. They complain of several actions by plaintiff, none of which the trial judge found sufficient to justify cancellation of the lease. Our review of the record has not shown that finding to be manifestly erroneous.

The most significant act complained of was plaintiff’s attachment of the movable property on the leased premises. The mere presence of attached property in the building did not in and of itself constitute a disturbance of defendants’ peaceable possession, however. See Salim v. Louisiana State Board of Education, 289 So.2d 554 (La.App. 3rd Cir. 1974), writ denied, 293 So.2d 177 (La.1974). Defendants did not establish that they were denied access to the leased premises or that any actions by plaintiff rendered the property unfit for its intended use as a boat manufacturing plant. Therefore, we cannot say that the trial judge was clearly wrong in concluding that defendants could have conducted their manufacturing activities there if they had wanted to.

Defendants’ second argument is that plaintiff breached the lease provision requiring him to construct two additional buildings, “as soon as possiblé”. The trial judge rejected that argument also, concluding that constructing additional buildings would have been a vain and useless act when defendants’ rent payments were in arrear and they were not making any attempt to use the leased premises. We agree. We do not believe that the words “as soon as possible” can be reasonably construed to mean that plaintiff was required to have the buildings completed prior to the time that defendants breached their obligation to pay the rent, which was one month after the lease was executed. Since the delay in the construction of the additional buildings resulted from defendants’ own failure to comply with the terms of the lease, they cannot rely on it as grounds for cancellation.

UNPAID RENT

In addition to arguing that the rent did not accrue because they were entitled to have the lease cancelled, defendants argue that the payment of the rent had been remitted. In doing so, they rely primarily on D. C. Greene’s proffered testimony that subsequent to the execution of the written lease, a Mr. Carl Smith told him on behalf of plaintiff that defendants would not be required to pay rent until after they had completed their move and resumed production. Smith testified that he might have told Greene that he would try to make such an arrangement with plaintiff. However, plaintiff denied ever having agreed to fore-go collection of the rent. The trial court concluded that defendants had failed to prove that the rent had been remitted. We find no error in that conclusion or the resulting judgment against defendants for the amount of the unpaid rent.

DAMAGES FOR WRONGFUL ATTACHMENT

Defendants base their demand for damages arising out of the attachment of their property on two distinct theories. First, they argue that they are entitled to damages under LSA-C.C.P. Art. 3543, which provides:

“A writ of attachment may be obtained before the debt sued upon is due. If the debt is paid when it becomes due, the costs of the seizure shall be paid by the plaintiff.”

Defendants contend that the future debt sued upon in this case, the future rent, never came due because of plaintiff’s breaches of the lease entitling them to its cancellation and/or his remittance of the rent. Having decided adversely to defendants on the issue of plaintiff's right to collect the unpaid rent, we find no merit in that argument. Furthermore, we do not believe that the words “costs of the seizure” in the above provision encompass the kinds of damages sought by defendants.

Defendants’ other argument is that they are entitled to damages under LSA-C. C.P. Art. 3506, because the writ of attachment was wrongfully issued. However, as we noted earlier, the trial court found in response to defendants’ motion to dismiss that the writ of attachment was proper. That judgment, which was affirmed by this Court, has become final. A final judgment upholding the validity of and maintaining a writ of attachment is res judicata on the right to damages for its wrongful issuance. Smith v. Utility & Maintenance Contractors of America, Inc., 301 So.2d 906 (La.App. 2nd Cir. 1974), writ denied, 305 So.2d 539 (La. 1975). Therefore, the trial court’s rejection of defendants’ demand for damages was correct.

PAYMENT FOR THE CONCRETE

In arguing that the trial judge erred in finding them liable for the cost of the concrete floor installed in the building, defendants rely primarily on D. C. Greene’s proffered testimony that he did not order the concrete. As we noted earlier, the trial judge rejected that testimony. Apparently, ■ he accepted plaintiff’s contradictory testimony that D. C. Greene had authorized the work. He noted in his oral reasons for judgment that plaintiff’s testimony is corroborated by the facts that Greene went to the site when the concrete was in the process of being poured and did not stop the work, defendants were billed for it, and the lease provides that all modifications to the original building are to be at defendants’ expense.

We believe that the evidence reasonably supports the trial judge’s conclusion. Accordingly, we do not find manifest error in the judgment awarding plaintiff the amount that he spent to cancel the materi-alman’s lien filed against his property.

For the above and foregoing reasons, the judgment appealed is affirmed. All costs of this appeal are taxed to the defendants.

AFFIRMED.

      . Although defendants are nonresidents, jurisdiction over them was obtained by personal service on D. C. Greene in Louisiana. LSA-C. C.P. Art. 6. Thus, this is not an action in rem, LSA-C.C.P. Art. 8, or quasi in rem, LSA-C.C.P. Art. 9.

      . Since the time of that hearing, plaintiff has amended his petition several times, seeking additional rent as it accrued. On May 15, 1979, when the last supplemental and amending petition was filed, the total came to $17,100.00.


text:
    Curt E. BOWERS et al., Plaintiff and Appellee, v. GREENE’S MARINE PRODUCTS, INC., and D. C. Greene, Defendants and Appellants.
    No. 7456.
    Court of Appeal of Louisiana, Third Circuit.
    May 21, 1980.
    Writ Refused Sept. 12, 1980.
    Charles L. Bull, Jr., Welsh, for defendants-appellants.
    Marcantel & Marcantel, Bernard N. Mar-cantel, Jennings, for plaintiff-appellee.
    Camp, Carmouche, Palmer, Barsh & Hunter, J. A. Delafield, Lake Charles, for defendant-appellee.
    Before CULPEPPER, GUIDRY and DOUCET, JJ.
   DOUCET, Judge.

This is a companion case consolidated for trial and appeal with Numbers 7455, Bowers v. Greene, 386 So.2d 920, and 7457, Calcasieu Marine National Bank of Lake Charles v. Greene’s Marine Products, Inc., 386 So.2d 926, on the docket of this Court. The issues in this case and Number 7457, The Calcasieu Marine National Bank of Lake Charles v. Greene’s Marine Products, Inc., et al, are identical and are discussed therein, although separate opinions in each case are being rendered on this day.

Curt E. Bowers and Carl B. Smith brought this suit to collect on a promissory note in the amount of $7,310.68, which was assigned to them by the Calcasieu Marine National Bank of Lake Charles. The note had been executed in favor of the bank by defendant, Greene’s Marine Products, Inc., and endorsed by defendant, D. C. Greene.

Defendants answered, reconvened, and brought a third party demand against the Calcasieu Marine National Bank of Lake Charles. The relief sought by both incidental actions was damages for the bank’s allegedly wrongful attachment of defendants’ property in the companion case of The Calcasieu Marine National Bank of Lake Charles v. Greene’s Marine Products, Inc., et al., our docket No. 7457, and the restitution of certain funds withdrawn from defendants’ account with the bank, plus damages for their allegedly wrongful withdrawal.

Judgment was rendered in favor of the plaintiffs and against the defendants in sol-ido in the sum of $7,310.68, plus interest and attorney’s fees as provided for in the note. Defendants’ reconventional and third party demands were dismissed. From that judgment, defendants appealed.

For the reasons assigned in our opinion in The Calcasieu Marine National Bank of Lake Charles v. Greene’s Marine Products, Inc., et al., our docket No. 7457, the judgment appealed by defendants is affirmed. All costs of this appeal are taxed to the defendants.

AFFIRMED.


text:
    CALCASIEU MARINE NATIONAL BANK OF LAKE CHARLES, Plaintiff and Appellee, v. GREENE’S MARINE PRODUCTS, INC., and D. C. Greene, Defendants and Appellants.
    No. 7457.
    Court of Appeal of Louisiana, Third Circuit.
    May 21, 1980.
    Writ Refused Sept. 12, 1980.
    See also, La.App., 386 So.2d 920, and La.App., 386 So.2d 925.
    Charles L. Bull, Jr., Welsh, for defendants-appellants.
    Marcantel & Marcantel, Bernard N. Mar-cantel, Jennings, for plaintiff-appellee.
    Camp, Carmouche, Palmer, Barsh & Hunter, J. A. Delafield, Lake Charles, for defendant-appellee.
    Before CULPEPPER, GUIDRY and DOUCET, JJ.
   DOUCET, Judge.

This is a companion case consolidated for trial and appeal with Numbers 7455, Bowers v. Greene, 386 So.2d 920, and 7456, Bowers v. Greene’s Marine Products, Inc., 386 So.2d 925, on the docket of this Court. Separate opinions in each case are being rendered on this day.

The Calcasieu Marine National Bank of Lake Charles brought this suit to collect on a promissory note in the amount of $23,-510.41, which was executed in its favor by defendant, Greene’s Marine Products, Inc., and endorsed by defendant, D. C. Greene. The note was executed on July 20,1977 and came due 90 days after that date. Both defendants defaulted at maturity, and the bank brought this suit in rem, seizing under a writ of attachment movable property owned by the nonresident defendants. The property which was seized was already under a prior attachment issued in the companion case of Bowers v. Greene, our docket No. 7455. Curt E. Bowers and Carl B. Smith intervened, also seeking recovery on the note, which they alleged to have been assigned to them after the suit was filed.

Defendants answered and reconvened, against both the plaintiff bank and the intervenors, seeking damages for the allegedly wrongful attachment of their property. They later amended their reconven-tional demand, seeking restitution of $2,311.60, which they alleged to have been wrongfully withdrawn from their account with the bank, plus damages for the wrongful withdrawal.

At the trial, an act of assignment was introduced into evidence. After all of the parties had presented their evidence and rested, the bank moved to dismiss its attachment as well as its demand for payment on the note, acknowledging that the note had been assigned to the intervenors. The trial court granted the dismissal, and at that point, defendants pointed out that there were some irregularities between the note and the act of assignment and prayed for dismissal of the intervenor’s demand. The intervenor’s moved to re-open the case, and the trial judge did so, allowing them to introduce into evidence a corrected act of assignment, as well as the testimony of James E. Benoit, a vice-president of the plaintiff bank. Mr. Benoit testified that the first act of assignment contained clerical errors and that the bank had fully intended to assign the note to the intervenors.

Judgment was rendered in favor of the intervenors and against the defendants in solido in the sum of $23,510.41, plus interest and attorney’s fees as provided for in the note. Defendants’ reconventional demand was dismissed. From that judgment, defendants appeal. We affirm.

On appeal, defendants argue that the trial judge abused his discretion by reopening the case and allowing additional evidence to be introduced. We disagree. It is well-settled that the decision to re-open a case for the production of additional evidence rests within the sound discretion of the trial judge. See Comment (b) under LSA-C.C.P. Art. 1632; Vitari v. Lewis, 361 So.2d 476 (La.App. 4th Cir. 1978), and the authorities cited therein.

The only other issue raised by defendants with regard to the intervenor’s demand for recovery on the note concerns the liability of Greene’s Marine Products, Inc. D. C. Greene signed the note as the corporation’s representative, and defendants contend that the intervenors had the burden of proving that Greene had authority to bind the corporation. They argue that since the intervenors failed to produce such proof, they should not have been allowed to recover against the corporation. That argument is also without merit, since defendants did not specifically deny the effectiveness of Greene’s signature in their answer. LSA-R.S. 10:3-307 provides:

“§ 3-307. Burden of establishing signatures, defenses and due course
(1) Unless specifically denied in the pleadings each signature on an instrument is admitted. When the effectiveness of a signature is put in issue
(a) the burden of establishing it is on the party claiming under the signature, but
(b) the signature is presumed to be genuine or authorized except where the action is to enforce the obligation of a purported signer who has died or become incompetent before proof is required.
(2) When signatures are admitted or established, production of the instrument entitles a holder to recover on its unless the defendant establishes a defense.
(3) After it is shown that a defense exists a person claiming the rights of a holder in due course has the burden of establishing that he or some person under whom he claims is in all respects a holder in due course.”

Under paragraph (1) of that provision, the signatures on the note were admitted when defendants failed to deny them in their pleadings. Therefore, under paragraph (2) defendants had the burden of proving the defense of Greene’s lack of authority, since the intervenors are unquestionably holders of the note. We find no evidence in the record to support such a defense. Accordingly, we conclude that the trial court properly granted recovery against both defendants.

Turning to the dismissal of defendants’ reconventional demand, we find that they have advanced numerous arguments in support of their contention that the attachment of their property by the bank was improper. The trial judge pretermitted consideration of those arguments, finding that defendants had failed to prove any damages as a result of that attachment. As we noted earlier, the property that was attached by the bank was already under a prior attachment in the companion case of Bowers v. Greene, supra. We have affirmed the trial court’s finding that the attachment in that case was valid, rejecting defendants’ demand for damages resulting from it. We find nothing in the record to show that defendants’ losses were in any way increased by the second attachment. Therefore, we find no error in the trial court’s dismissal of their claim.

The only remaining issue is defendants’ demand for restitution of the funds withdrawn from their account with the plaintiff bank, plus damages for the allegedly wrongful withdrawal. The testimony concerning the circumstances surrounding the withdrawal was conflicting. The money was withdrawn by Curt E. Bowers, an employee of the bank. Bowers testified that D. C. Greene had verbally authorized him to withdraw the funds to pay a contractor for putting a concrete floor in a building, which he had leased to defendants. He also testified that on a prior occasion Greene had given him verbal authorization to withdraw funds to pay for the rental of a post office box. Greene admitted authorizing Bowers to pay for the post office box but denied that he had ever given him authority to withdraw funds to pay the contractor.

Greene’s testimony was heard only as an offer of proof. It was excluded by the trial judge because of defendants’ failure to comply with a pre-trial order and Greene’s failure to appear at a deposition scheduled by his attorney. Defendants argue that the trial judge erred in excluding and refusing to consider Greene’s testimony. That issue was also raised in both of the companion cases. It was fully discussed in our opinion in Bowers v. Greene, supra, and we see no need for repeating that discussion here. For the reasons assigned in that case, we find no error in the trial court’s finding that the withdrawal was authorized, which he based on Bowers’ testimony.

For the above and foregoing reasons, the judgment appealed by defendants is affirmed. All costs of this appeal are taxed to the defendants.

AFFIRMED.


author: LABORDE, Judge. FORET, Judge,

text:
    Marie E. DELHOMME, Plaintiff-Appellee, v. FOREST OIL CORPORATION et al., Defendants-Appellants.
    No. 7527.
    Court of Appeal of Louisiana, Third Circuit.
    May 21, 1980.
    Concurring Opinion May 21, 1980.

      Allen, Gooch & Bourgeois, Raymond M. Allen, Lafayette, for defendants-appellants.
    J. Minos Simon, Lafayette, for plaintiff-appellee.
    Before FORET, SWIFT, STOKER, DOU-CET and LABORDE, JJ.
   LABORDE, Judge.

Plaintiff, Marie Delhomme, instituted this tort suit to recover damages for personal injury sustained in an intersectional collision. Made defendants were Forest Oil Corporation, Lewis Hammett, and American International Insurance Company. Following a trial, judgment was rendered in favor of plaintiff in the sum of $50,000 as general damages. Defendants perfected this appeal seeking a reduction in the award.

The record reveals that on July 13, 1977, plaintiff suffered serious injuries when the car in which she was a passenger was struck by a vehicle driven by Lewis Hammett. According to plaintiff, immediately after the collision she felt pain in her left ankle, right ankle, hip and head. Plaintiff was taken to Lafayette General Hospital where she was examined by Dr. Larriviere, an orthopedic surgeon. The examination revealed that plaintiff had suffered a laceration to her foreheád, a sprained right ankle, a severely fractured left ankle, and contusions to her body.

Dr. Larriviere performed a closed reduction, placing plaintiff’s left leg in a long cast. Plaintiff was released from the hospital on July 20, 1977. Plaintiff was required to wear the long cast for six weeks, during which period she was confined to a bed or a wheelchair. The long leg cast was removed on August 30, 1977 and a short leg cast was applied to plaintiff’s left leg. Plaintiff was then able to ambulate with the support of crutches. The short leg cast remained on plaintiff’s leg for approximately eight weeks. After removing the short leg cast on October 26, 1977, Dr. Larriviere prescribed an ankle brace and physical therapy treatment. Plaintiff’s condition improved significantly in response to physical therapy-

At the trial, plaintiff testified that she had recovered from the injuries to her head, her right ankle, and her hip. However, she stated that following a long walk, gardening activities, or housework her left ankle would swell causing her pain. Although Dr. Larriviere characterized the pain which plaintiff suffered on these occasions as mild, he assigned a 15% disability to plaintiff’s left ankle because of the pain factor. Dr. Larriviere was of the opinion that plaintiff’s condition as of the date of the trial would neither improve nor deteriorate.

Civil Code Art. 1934 provides that, in the assessment of general damages, “much discretion must be left to the judge or jury

In Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977) the court stated:

“We do reemphazise, however, that before a Court of Appeal can disturb an award made by a trial court that the record must clearly reveal that the trier of fact abused its discretion in making its award.”

The principles announced in Coco were reaffirmed in Reck v. Stevens, 373 So.2d 498 (La.1979), wherein the court stated:

“Thus, the initial inquiry must always be directed at whether the trier court’s award for the particular injuries and their effects upon this particular injured person is, a clear abuse of the trier of fact’s ‘much discretion’, La.Civ.C. art. 1934(3) in the award of damages. It is only after articulated analysis of the facts discloses an abuse of discretion, that the award may on appellate review, for articulated reason, be considered either excessive, Carollo v. Wilson, 353 So.2d 249 (La.1977); Schexnayder v. Carpenter, 346 So.2d 196 (La.1977), or insufficient, Olds v. Ashley, 250 La. 935, 200 So.2d 1 (1967). Only after such determination of abuse has been reached, is a resort to prior awards appropriate under Coco for purposes of then determining what would be an appropriate award for the present case.”

In the instant action, plaintiff suffered a serious ankle fracture and other minor injuries in an automobile collision. As of the date of trial, plaintiff had recovered fully except for a residual disability of 15% in her left ankle. The disability was assigned because of the pain suffered by plaintiff after performing certain activities, excessive stooping, extensive walking, etc. However, Dr. Larriviere testified that plaintiff could perform all functions which she had engaged in prior to the accident, although some acts might cause mild pain.

Appellant urges that the trial court award should be reduced “after a review and analysis of the findings, regarding the particular facts and circumstances of the injuries to this particular plaintiff, and the particular effects of the particular injuries upon this particular plaintiff.” Appellant cites Reck v. Stevens, 373 So.2d 498 (La. 1979) and insists that this court conclude that there was in fact an abuse of discretion by the trial court.

We do not agree. We have carefully analyzed the entire record within the parameters set by the Supreme Court in Reck v. Stevens, supra, and conclude that the award of the trial court must stand.

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

AFFIRMED.

FORET, J., concurs and assigns written reasons.

SWIFT, J., dissents being of the opinion the award is excessive.

STOKER, J., dissents for the reasons assigned by SWIFT, J.

FORET, Judge,

concurring.

I concur with the majority in its affirmation of the trial court’s award of $50,000.00 as general damages. In the pre-Coco and Reck era, I would have been inclined to reduce the award as being excessive considering existing jurisprudence. However, Coco and Reck have changed all that.

Accordingly, I will respectfully concur in the majority’s affirmance of the quantum award in this case.


author: STOKER, Judge.

text:
    Charles L. LIBERTO, Jr., Plaintiff-Appellant, v. Joseph VILLARD and Mucavil, Inc., Defendants-Appellees.
    No. 7534.
    Court of Appeal of Louisiana, Third Circuit.
    May 21, 1980.

      Broussard, Bolton & Halcomb, Daniel E. Broussard, Jr., Alexandria, for plaintiff-appellant.
    Foote, Ledbetter & Percy, George Foote and James M. Percy, Alexandria, for plaintiff-appellee.
    Gravel, Roy & Burnes, Dan E. Melichar, Gist, Methvin, Hughes & Munsterman, John W. Munsterman, Gold, Little, Simon, Weems & Bruser, F. A. Little, William E. Skye, Alexandria, for defendants-appellees.
    Before SWIFT, STOKER and LA-BORDE, JJ.
   STOKER, Judge.

Plaintiff-appellant, Charles L. Liberto, was the general contractor for a construction project undertaken by Mucavil, Incorporated. Liberto brings suit here against that corporation and two of the three shareholders in the corporation for breach of the construction contract between himself and the corporation. The two shareholder defendants are Joseph Villard and Jack Mule, Jr.

Plaintiff Liberto alleges the trial court erred:

(1) in dismissing his claims against shareholders Joseph Villard and Jack Mule individually,

(2) in not finding that Joseph Villard made the corporation his alter-ego by disregarding the corporation’s existence as a separate entity, thus subjecting himself to personal liability for the debts of the corporation,

(3) in not finding that Villard induced Liberto to enter the contract by making material misrepresentations in regard to financing of the project,

(4) in finding the price agreed to by contract between Liberto and Mueavi! was $643,000.00 instead of $812,000.00,

(5) in failing to find an amount of expense and labor owed Mr. Liberto at the time work stopped on the project,

(6) in not awarding to Liberto the attorney’s fees and costs incurred by him in defending subcontractors’ and material-men’s suits arising from defendant’s breach of the contract, and

(7) in not awarding to Liberto an amount to compensate him for the loss of income he sustained as a result of, the defendant’s breach of the construction contract.

FACTS

On August 28, 1974, appellant Charles L. Liberto, Jr., entered into a written contract with Mucavil, Inc., to construct a shopping center in Alexandria, Louisiana, to be known as “MacLee Plaza”. Mucavil, Inc., is a Louisiana corporation domiciled in Rap-ides Parish and owned by three shareholders, Dr. Joseph Villard, Jack Mule, Jr., and Wayne Cave. The terms of the written contract between Liberto and Mucavil provided for a construction price of $643,000.00 with a 10% profit for the general contractor Liberto.

Construction was begun on the shopping center in August, 1974, and continued until the first week in December, at which time the interim lending institution, the Rapides Bank and Trust Company, withdrew financing for the project. As a result, a number of legal actions were commenced, five of which have been consolidated in this appeal. At the time the financing by Rapides Bank was terminated Mr. Liberto had received three payments toward the expected $643,-000.00. The three payments totalled $142,-452.00.

After the bank’s refusal to fund any further construction, various laborers and ma-terialmen filed liens which were followed by lawsuits to collect sums due them for work performed or materials furnished in connection with the shopping center. The subcontractors and materialmen whose claims are involved in this consolidated litigation include Russell Rabalais, Texas Industries, Inc., and Flynn Manufacturing Company of Alexandria. All of these subcontractors and furnishers of material filed suit against (1) Mucavil, Inc., as owner of the project; (2) Liberto, the general contractor; and (3) Liberto’s bonding company, American Employer’s Insurance Company.

Liberto himself filed suit against Mucavil, Inc., for damages for breach of contract, costs incurred in defending the various subcontractors’ suits brought against Liberto, future loss of construction income, and general damages for embarrassment and mental anguish. In his suit Liberto also sued Dr. Joseph Villard and Jack Mule in their individual capacities, seeking to “pierce the corporate veil” and hold them (particularly Villard) individually responsible on the grounds that the corporation was merely the alter-ego of Villard and that Villard had made misrepresentations concerning the interim financing for the project, thereby inducing Liberto to enter into the construction contract.

Additionally, in the subcontractors’ suits against him, Liberto filed third party demands against Mucavil, Inc., Villard, and Jack Mule individually asking for judgment over and against all of these defendants for any amounts for which he might be cast. Again, on the third party demands, Villard and Mule were sought to be held personally liable. In addition to being shareholders in Mucavil, Inc., Dr. Villard was president and Jack Mule was secretary of the corporation.

The district court ruled in favor of the subcontractors and suppliers. Texas Industries won against Liberto and American Employers Insurance Company. Flynn Manufacturing was awarded judgment against Liberto, Mucavil, and American Employers. In the Rabalais suit, judgment was awarded against Liberto and American Employers.

In all of the above mentioned judgments obtained by the subcontractors, suppliers and Liberto’s bonding company, judgment was also rendered in favor of Liberto on his third party demands against Mucavil, Inc., but all claims on his third party demands against Villard and Mule, individually, were denied.

In Liberto’s suit against Mucavil, Inc., and Dr. Joseph Villard, judgment was rendered in plaintiff’s favor and against Muca-vil, Inc., in the amount of $60,058.80 for lost profits on the contract, but the court denied plaintiff’s claim against Joseph Villard and Jack Mule individually. The court further dismissed Liberto’s claims for general damages for mental anguish, humiliation, etc., and for the lost profits he claims he would have earned on future construction jobs.

Thus, Liberto obtained judgment against Mucavil, Inc., in his own suit" for lost profits on the contract and obtained judgments on this third party demands against Mucavil, Inc., for all sums for which he was cast to his subcontractors and his bonding company.

Appeal is brought here by Liberto in his suit against Villard and Mucavil. As part of this appeal, he challenges the trial court’s finding of the contract price as $643,000.00 instead of $812,000.00. He also appeals the denial of his third party demands against Villard, individually, in the two suits of the subcontractor, Texas Industries (suits numbered 7535 and 7536 in this court), and in the suit of subcontractor Flynn Manufacturing Company, Inc., (suit number 7533).

I.

Did the trial court err in not finding that Villard induced Liberto to enter the contract by making material misrepresentations in regard to the financing of the project and in finding the price agreed to by contract between Liberto and Mucavil was $643,000.00 instead of $812,0001

The above stated issues cover plaintiff-appellant’s third and fourth assignments of error. They are dealt with together here because they arise from similar fact situations, and they are answered by this court in the same manner.

The trial court found no material misrepresentations by Dr. Villard. It appears from the record that he was dealing with Liberto in good faith, not anticipating any sudden, unforeseen problem such as the complete withdrawal of funding by Rapides Bank.

Appellant claims Villard personally guaranteed any interim financing necessary to secure an agreed contract price of $812,000.00. Defendant-appellee remembers no such personal guarantee and argues that the contract price agreed to was $643,-000.00, exactly as stated in the written contract. Liberto cites LSA-C.C. article 934 for the proposition that in an action for breach of contract the damages due are the amount of loss sustained and the profit of which the contracting party is deprived. Thus, Liberto contends he would have earned a profit in the amount of $81,200.00 (10% of $812,000.00) had the job been completed. We agree with the finding of the trial court:

From the testimony the Court is not convinced that the parties agreed upon a contract price of $812,000. There may have been some discussion of the cost exceeding the stated contract price, but the court feels that it was in the nature of a contingency or possibility rather than a term on which there was a meeting of the minds.

The trial court made conclusions as to the facts presented by the third and fourth assignments of error. Plaintiff bore the burden of proof to show verbal alteration of the written contract. The trial court found that plaintiff failed to carry this burden. We simply follow the basic rule of appeal in Louisiana and give great weight to the factual conclusions of the trier of fact. Canter v. Koehring, Co., 283 So.2d 716 (La.1973). As stated by the Supreme Court in Arceneaux v. Domingue, 365 So.2d 1330 (La.1978), “the appellate court should not disturb such a finding of fact unless it is clearly wrong”. A full review of the record does not show the trial court was clearly wrong.

II.

Should the trial court have found, in the words of the plaintiff-appellant, an amount of expenses and labor owed to Mr. Liberto at the time work stopped on the project ?

This question is reflected in plaintiff-appellant’s fourth assignment of error. The trial court answered it aptly in its reasons for judgment:

From the evidence the Court cannot tell with any certainty the amount of “the expense and labor already incurred” by Liberto with the exception of the subcontractors whose claims have been adjudicated, with Liberto’s liability being passed onto Mucavil.

This court agrees with the trial court that there is insufficient evidence in the record to support this contention of plaintiff-appellant.

III.

Did the trial court err in not awarding to Liberto the attorney’s fees and costs incurred by him in defending various subcontractors’ suits arising from defendant’s breach of the construction contradi

This assignment of error (plaintiff-appellant’s sixth) can be quickly dismissed, because expenses incurred in preparing a law suit are not recoverable as damages. Acme Steel Company v. A. J. Warehouse, Inc., 212 So.2d 271 (La.App. 4th Cir. 1968); Universal C. I. T. Credit Corp. v. Jones, 47 So.2d 359 (La.App. 2nd Cir. 1950), and it is well established that the general rule in Louisiana is that attorney fees are not allowed except where authorized by statute or contract. Nassau Realty Co., Inc. v. Brown, 332 So.2d 206 (La.1976); Morein v. G. J. Deville Lumber Co., 215 So.2d 208 (La.App. 3rd Cir. 1968).

IV.

Did the trial court err in not awarding Liberto an amount to compensate him for the loss of income he sustained as a result of the defendant’s breach of the construction contradi

Mr. Liberto also testified that, as a result of the defendant’s breach and the resulting litigation of this claim, his business income has been affected substantially. In 1974 he made a net income for the construction business of $45,738.12. He was out of business for the years 1975,1976, and 1977. Liberto claims this was due to his inability to obtain a bid or performance bond or interim financing to perform construction projects. This inability, he contends, was a direct result of the failure of the MacLee project.

Again, we agree with the trial court. The court felt that this claim (plaintiff-appellant’s seventh assignment of error) was too speculative and conjectural for an assessment of damages. The only proof which might be used as a guide to what Mr. Liberto’s income would have been had there been no breach of the contract was his testimony and a statement of the earnings of the construction company during the previous year. We find that the trial court was not clearly wrong in holding Liberto had failed to show sufficient proof for an award of damages for loss of income.

V.

Did the trial court err in dismissing its claims against shareholders Joseph Villard and Jack Mule individually and in not finding that Joseph Villard made the corporation his alter-ego by disregarding the corporation’s existence as a separate entity, thus subjecting himself to personal liability for the debts of the corporation 1

The primary contention in this case is included in the above statement, which is comprised of appellant’s first two assignments of error, and is dealt with last in this opinion. The question is basically whether plaintiff-appellant can “pierce the corporate veil,” thus subjecting Joseph Villard and Jack Mule, Jr., to individual liability.

It is a fundamental legal principle that a corporation is a distinct legal entity, separate from the individuals who comprise it. LSA-C.C. art. 435, 437; LSA-R.S. 12:93(B). In a few limited situations a party can reach an individual shareholder by “piercing the corporate veil”, making the individual liable for debts incurred by the corporation. This can be done when a shareholder practices fraud upon a third person through the corporation or disregards the corporate entity to such an extent that the individualities of the corporation and shareholder cease to exist; the corporation no longer exists as an individual distinguishable from the shareholder. When a party seeks to pierce the corporate veil, the situation must be viewed with regard to the totality of the circumstances. Whether individual liability will be assigned to shareholders is primarily a factual finding to be made by the trial court. In Louisiana the concept of the corporation as a separate entity is felt to be beneficial and is disregarded only in exceptional circumstances. Kingsman Enterprises v. Bakerfield Electric Co., 339 So.2d 1280 (La.App. 1st Cir. 1976).

Plaintiff-appellant listed numerous factors he felt should lead the court to pierce the corporate veil and assign individual liability to Villard and Mule. Much emphasis is placed on Villard’s handling of money and commingling of his funds and those of the corporation, a factor the courts have used in the past in piercing the corporate veil. We agree with the findings of the trial court that although there were instances in which money was transferred from corporate accounts to Villard’s personal accounts, this was not improper because these transfers were to reimburse him for money he had spent on corporate obligations. The record reveals that defendant-appellee spent his personal funds to keep the corporation going. He testified that his investment totalled $450,000.00, and that he has never received a single dividend. It is quite evident in an examination of the record that, although there might be some discrepancy or confusion in Villard’s records, he clearly invested much more of his personal money in the corporation than he was ever reimbursed. Thus, the entire rationale behind piercing the corporate veil is absent in this case. The basic justification for piercing the corporate veil is to prevent defrauding of creditors. Villard was not using Mucavil as a tool to protect himself from liability. Instead, he was voluntarily investing great amounts of his personal funds to try and keep the corporation going; funds which have been written off as a loss since the corporation stock is now worthless.

Some of the other circumstances which have in the past justified piercing the corporate veil include failure to maintain separate bank accounts and undercapitalization. Kingsman Enterprises v. Bakerfield Electric Company, supra. In the present case, Mucavil maintained separate bank accounts and financial records apart from any individuals who were officers or shareholders. The corporation was not underca-pitalized, since Villard invested $171,000.00 at the corporation’s inception. Liberto also complains that Villard personally obligated himself for debts incurred by the corporation. This is explained by the fact that sometimes Villard became obligated when the property was still owned by him. At other times, he would personally endorse corporate obligations which is a common practice among officers and shareholders of small corporations.

Another fact pointed to by Liberto as a reason to pierce the corporate veil was one instance of the mortgaging of corporation-owned property to secure a personal loan. The record reveals this was a good faith error of Villard caused by a mistake of his attorney.

Keeping in mind the reluctance of Louisiana courts to disregard corporate status except in exceptional circumstances, we find, in light of all of the facts and the totality of the circumstances in this case, that the trial court was correct in denying plaintiff-appellant’s claim and finding in favor of defendant-appellee.

AFFIRMED.

      . This appeal was consolidated with four others (numbers 7533, 7535, 7536, and 7537). Separate opinions will be rendered in each. [386 So.2d 937, 937, 938, 938.]

      . Suit number 7537, 386 So.2d 938, in this court.

      . Suit number 7535, 386 So.2d 937, and number 7536, 386 So.2d 938, in this court.

      . Suit number 7533, 386 So.2d 937, in this court.

      . Each of plaintiff-appellant’s assignments of error will be dealt with in this opinion, but they will not be dealt with in the order in which they were listed. ,


text:
    FLYNN MANUFACTURING COMPANY, INC., Plaintiff-Appellee, v. Charles L. LIBERTO, Jr., Defendant-Third Party Plaintiff-Appellant.
    No. 7533.
    Court of Appeal of Louisiana, Third Circuit.
    May 21, 1980.
    Broussard, Bolton & Halcomb, Daniel E. Broussard, Jr., Alexandria, for plaintiff-appellant.
    Foote, Ledbetter & Percy, George Foote and James M. Percy, Alexandria, for plaintiff-appellee.
    Gravel, Roy & Burnes, Dan E. Melichar, Gist, Methvin, Hughes & Munsterman, John W. Munsterman, Gold, Little, Simon, Weems & Bruser, F. A. Little, William E. Skye, Alexandria, for defendant-appellee.
    Before SWIFT, STOKER and LA-BORDE, JJ.
   STOKER, Judge.

This case was consolidated for trial and appeal with a companion suit, Charles L. Liberto, Jr. v. Joseph Villard and Mucavil, Inc., 386 So.2d 930 which is being decided on this date.

For the reasons which we assigned in Charles L. Liberto, Jr. v. Joseph Villard and Mucavil, Inc., supra, the judgment appealed from in the instant suit is affirmed. The costs of this appeal are assessed to defendant-third party plaintiff-appellant, Charles L. Liberto, Jr.

AFFIRMED.


text:
    TEXAS INDUSTRIES, INC., Plaintiff-Appellee, v. Charles L. LIBERTO, Jr., Defendant-Third Party Plaintiff-Appellant.
    No. 7535.
    Court of Appeal of Louisiana, Third Circuit.
    May 21, 1980.
    Broussard, Bolton & Halcomb, Daniel E. Broussard, Jr., Alexandria, for plaintiff-appellant.
    Foote, Ledbetter & Percy, George Foote and James M. Percy, Alexandria, for plaintiff-appellee.
    Gravel, Roy & Burnes, Dan- E. Melichar, Gist, Methvin, Hughes & Munsterman, John W. Munsterman, Gold, Little, Simon, Weems & Bruser, F. A. Little, William E. Skye, Alexandria, for defendant-appellee.
    Before SWIFT, STOKER and LA-BORDE, JJ.
   STOKER, Judge.

This case was consolidated for trial and appeal with a companion suit, Charles L. Liberto, Jr. v. Joseph Villard and Mucavil, Inc., 386 So.2d 930 which is being decided on this date.

For the reasons which we assigned in Charles L. Liberto Jr. v. Joseph Villard and Mucavil, Inc., supra, the judgment appealed from in the instant suit is affirmed. The costs of this appeal are assessed to defendant-third party plaintiff-appellant, Charles L. Liberto, Jr.

AFFIRMED.


text:
    TEXAS INDUSTRIES, INC., Plaintiff-Appellee, v. Charles L. LIBERTO, Jr., Defendant-Third Party Plaintiff-Appellant.
    No. 7536.
    Court of Appeal of Louisiana, Third Circuit.
    May 21, 1980.
    Broussard, Bolton & Halcomb, Daniel E. Broussard, Jr., Alexandria, for plaintiff-appellant.
    Foote, Ledbetter and Percy, George Foote and James M. Percy, Alexandria, for plaintiff-appellee.
    Gravel, Roy & Burnes, Dan E. Melichar, Gist, Methvin, Hughes & Munsterman, John W. Munsterman, Gold, Little, Simon, Weems & Bruser, F. A. Little, William E. Skye, Alexandria, for defendant-appellee.
    Before SWIFT, STOKER and LA-BORDE, JJ.
   STOKER, Judge.

This case was consolidated for trial and appeal with a companion suit, Charles L. Liberto, Jr. v. Joseph Villard and Mucavil, Inc., 386 So.2d 930 which is being decided on this date.

For the reasons which we assigned in Charles L. Liberto, Jr. v. Joseph Villard and Mucavil, Inc., supra, the judgment appealed from in the instant suit is affirmed. The costs of this appeal are assessed to defendant-third party plaintiff-appellant, Charles L. Liberto, Jr.

AFFIRMED.


text:
    Russell RABALAIS et al., Plaintiffs-Appellees, v. Charles L. LIBERTO et al., Defendants-Third Party Plaintiffs-Appellants.
    No. 7537.
    Court of Appeal of Louisiana, Third Circuit.
    May 21, 1980.
    Broussard, Bolton & Halcomb, Daniel E. Broussard, Jr., Alexandria, for plaintiffs-appellants.
    Foote, Ledbetter & Percy, George Foote and James M. Percy, Alexandria, for plaintiffs-appellees.
    Gravel, Roy & Burnes, Dan E. Melichar, Gist, Methvin, Hughes & Munsterman, John W. Munsterman, Gold, Little, Simon, Weems & Bruser, F. A. Little, William E. Skye, Alexandria, for defendant-appellee.
    Before SWIFT, STOKER and LA-BORDE, JJ.
   STOKER, Judge.

This case was consolidated for trial and appeal with a companion suit, Charles L. Liberto, Jr. v. Joseph Villard and Mucavil, Jr., 386 So.2d 930 which is being decided on this date.

For the reasons which we assigned in Charles L. Liberto, Jr. v. Joseph Villard and Mucavil, Inc., supra, the judgment appealed from in the instant suit is affirmed. The costs of this appeal are assessed to defendant-appellant, Charles L. Liberto, Jr.

AFFIRMED.


text:
    Rosa Mae RYAN, Plaintiff-Appellee, v. SECURITY INDUSTRIAL INSURANCE COMPANY, Defendant-Appellant.
    No. 7548.
    Court of Appeal of Louisiana, Third Circuit.
    May 21, 1980.

      Talbot, Sotile, Carmouche, Waguespack & Marchand, Victor L. Marcello, Donaldson-ville, for defendant-appellant.
    Camp, Carmouche, Palmer, Barsh & Hunter, Skipper Drost, Lake Charles, for appellant.
    Cox & Cox, Rex D. Townsley, Lake Charles, for plaintiff-appellee.
    Before SWIFT, STOKER and LA-BORDE, JJ.
   STOKER, Judge.

This is a contract action. Plaintiff, Rosa Mae Ryan, instituted this suit against Security Industrial Insurance Company seeking recovery under two contracts of insurance. Following the trial, judgment was rendered for plaintiff in the sum of $4,600.00. Penalties were also imposed for the insurer’s refusal to pay the claims. Defendant has perfected this appeal from the lower court’s ruling.

The facts show that on October 14, 1977, Bill Brantley, an agent for defendant, visited Gracie Ryan at her mother’s residence. Brantley’s visit was in response to an inquiry from Ms. Ryan indicating an interest in securing policies of life insurance and burial insurance. In due course, Gracie Ryan applied for two policies, a policy of life insurance providing coverage of $4,000.00 and a policy of burial insurance providing coverage of $600.00. Gracie Ryan named her mother, Rosa Mae Ryan, as beneficiary of both policies. The following procedure was used to fill out the applications: Mr. Brantley posed questions to Gracie Ryan, and her responses were written on the applications by Brantley. After filling out the applications, Brantley presented the forms to Ms. Ryan for her signature. Gracie Ryan signed the applications but did not review the applications as completed by Mr. Brantley. After signing the applications, Ms. Ryan paid Brantley the initial premiums of each policy.

The life insurance policy was issued on October 15,1977. The burial insurance policy was issued on January 15, 1978. All premiums were paid timely as they became due.

On January 4, 1978, Gracie Ryan died. The cause of death was listed as sepsis, acute renal failure, and disseminated intra-vascular coagulation. Following Gracie Ryan’s death, Rosa Mae Ryan, the beneficiary of the policies, filed a claim for coverage under the policies. The plaintiff’s claim was rejected. Thereafter, plaintiff instituted this action.

Defendant resists liability under the policies for several reasons. Defendant contends that Gracie Ryan made material misrepresentations in both applications. Defendant resists coverage under a “good health” provision in both insurance contracts. Finally, defendant contends that it is not liable under the burial insurance policy because it was not issued until after Gracie Ryan’s death.

MATERIAL MISREPRESENTATION
LSA-R.S. 22:619(B) provides,
In any application for life or health and accident insurance made in writing by the insured, all statements therein made by the insured shall, in the absence of fraud, be deemed representations and not warranties. The falsity of any such statement shall not bar the right to recovery under the contract unless such false statement was made with actual intent to deceive or unless it materially affected either the acceptance of the risk or the hazard assumed by the insurer. [Emphasis added]

In order for an insurer to avoid liability on the basis of material misrepresentations the insurer must meet a three-tiered burden. It must be shown that the statements were false. Second, the insurer must establish that the representations were made with an actual intent to deceive. Third, the insurance company must establish that these misstatements materially affected the risk assumed by the insurer. Martin v. Security Industrial Insurance Company, 367 So.2d 420 (La.App. 2nd Cir. 1979), writ refused 369 So.2d 1364 (La.1979).

In the present case, defendant alleges that Gracie Ryan gave false answers to questions 6 and 11 on both applications. Question 6 seeks information as to whether the applicant is in good health “without any impairment”. Question 11 seeks information concerning any diseases or disorders, such as paralysis, which the applicant might have. It is not disputed that the answers to the questions, insofar as Gracie Ryan is concerned, were not accurate. At the time the applications were filled out, Ms. Ryan was paralyzed from the waist down. Ms. Ryan’s paralysis is not mentioned in the form.

However, it is well settled that the acts of an insurance agent in filling out an application form falsely are the acts of his principal, the insurer, and they do not bind the innocent insured nor bar recovery by him or his beneficiaries. Cloud v. Security General Life Insurance Co., 352 So.2d 406 (La.App. 3rd Cir. 1977); Frugé v. Woodmen of the World Life Insurance Society, 170 So.2d 539 (La.App. 3rd Cir. 1965); Morein v. American Physicians Insurance Company, 192 So.2d 887 (La.App. 3rd Cir. 1966).

In the instant case, Rosa Mae Ryan testified that Gracie Ryan informed the agent she was paralyzed from the waist down. Ms. Ryan’s testimony was corroborated by her daughter and a disinterested witness who was visiting in the home of the Ryans at the time the application was completed. Bill Brantley, the agent who completed the form, was not summoned by the insurer to contradict this testimony.

An examination of the record reveals that, although the application form contained inaccurate information, it was the result of the agent falsely filling out the application. The agent’s acts do not bar the beneficiary from recovery. In rejecting the insured's defense of material misrepresentation, the trial judge stated, “The court finds, likewise, that the defendant clearly failed to establish that the Ryans sought at any time to deceive the insurer.” A thorough examination of the record reveals that the judge's finding is correct.

In support of its defense of violation of LSA-R.S. 22.619B, defendant relies heavily on Johnson v. Occidental Life Insurance Company of California, 368 So.2d 1032 (La. 1979) and Watson v. Life Insurance Company of Louisiana, 335 So.2d 518 (La.App. 1st Cir. 1976). Defendant’s theory in this regard is that the deceased was guilty of misrepresentation and fraud in falsely answering certain questions on the application forms for the insurance. A similar defense was dealt with in Martin v. Security Industrial Insurance Company, supra, and we think the contentions of defendant on this point are fully answered there. Nevertheless, we think the Johnson and Watson cases can be distinguished on their facts. In both of these cases, the applicants filled out the applications themselves.

In Johnson, the insured responded to a mail solicitation from the insurance company and was furnished with an application for mortgage cancellation group life insurance. The applicant, Mrs. Claray Smith, filled out the application herself. In Watson, the deceased insured did the same with reference to an application for credit life insurance. In both cases, the inference was clear that misrepresentations were made with the intent to deceive the insurer. Here, Gracie Ryan did not fill out the application. No false representation with intent to deceive has been shown.

GOOD HEALTH CLAUSE

The insurer resists liability on the life insurance policy on the grounds of a “good health” clause found in the policy. The clause provides, in essence, that the contract of insurance is not effective until the first premium has been paid and accepted by the company and the policy has been delivered and accepted by the insured while in good health.

Defendant contends that coverage never became effective because Gracie Ryan was not in good health at the time of the issuance of the life insurance policy, October 15, 1977. However, the issue is whether Gracie Ryan was in good health at the time of delivery of the policies.

Dennis Cavallaro, an employee of defendant, testified that it was company policy, to give the policy of insurance, after issuance, to the agent for delivery to the insured. In the present case, it appears that Mr. Brantley failed to deliver the policy of life insurance to Gracie Ryan after its issuance. However, delivery of an insurance policy may be actual or constructive. Pruitt v. Great Southern Life Insurance Company, 202 La. 527, 12 So.2d 261 (1942). In the present case, since no restrictions were placed on Brantley concerning delivery of the policy after its issuance, the delivery of the policy to Brantley amounted to constructive delivery of the policy to Gracie Ryan.

Therefore, the question presented is whether the insurer proved that Gracie Ryan was not in good health at the time she received delivery of the policy. In Martin v. Security Industrial Insurance Company, supra, the court, faced with the interpretation of a good health clause which required the insured to be in good health at the time of the issuance of the policy, stated that the insurer must prove by “clear and convincing proof” that the insured was not in good health on the effective date of the policy. In Martin, although the insurer proved that the insured had suffered from heart trouble prior to the issuance of the policy, the court held that the insurer failed to prove that the insured was not in good health on the date of the issuance.

In the present case, medical evidence introduced revealed that Gracie Ryan was not in good health as of December 18,1977, when she was hospitalized for treatment of various disorders. However, the insurer presented no evidence as to when the insured received delivery of the life insurance policy. Since no evidence was presented as to when the policy was delivered to Ms. Ryan, the insurer failed to prove by clear and convincing evidence that Gracie Ryan was not in good health at the date of delivery. Although Ms. Ryan was paralyzed from the waist down as of the date of the issuance of the life insurance policy, this is not proof that she was not in good health. The trial court did not err in rejecting the insurer’s defense based on the “good health” clause.

As the Martin case illustrates, an extremely heavy burden is placed on an insurer who attempts to avoid liability under a “sound health” or “good health” clause. There it was said that the courts “required clear and convincing evidence that the insured was not in sound health on the effective date of the policy.” The court in Martin discussed several cases in which courts had rendered ineffective certain policies of insurance and then distinguished them as follows:

In the cases summarized above which upheld the sound health provision and rendered the policy ineffective, there was either positive medical testimony as to the insured’s condition of health on the date of issuance of the policy, or other evidence so strong that no other conclusion could be reached than the insured was in unsound health on that date.

Permissible inferences which may be made in ordinary cases, as laid down by Jordan v. Travelers Insurance Company, 257 La. 995, 245 So.2d 151 (1971), may not be made in cases involving “sound health” policies. The restrictive rule evidently reflects strong policy considerations growing out of the nature of sound health insurance contracts and the frequent lack of expertise or understanding on the part of applicants who depend upon agents of the companies to look after their (the applicant’s) interests.

BURIAL POLICY

The insurer contends that coverage was not provided under the burial policy because it was not issued until after Gracie Ryan’s death. The facts show that the application for the burial policy was taken on October 14, 1977. However, although premiums were paid until plaintiff’s death on January 4, 1978, the policy was not issued until January 15, 1978.

Although an insurer is granted a reasonable time to accept or reject an application, a period of 90 days is not a reasonable time. Since the insurer did not issue or reject the policy within a reasonable period of time, the insurer is estopped from denying coverage on the ground that the policy was not issued until after the insured’s death. It would be inequitable to allow the insurer to receive, retain, and enjoy the benefits of premiums for a burial insurance policy, without issuing the policy, and then allow the insurer to deny coverage once the insured dies. See Sampson v. Life & Casualty Insurance Company of Tennessee, 175 So, 148 (Orl.La.App.1937); Williams v. Unity Industrial Life Insurance Company, 181 So. 210 (Orl.La.App.1938).

PENALTIES

Defendant contends that the trial judge erred in imposing penalties for its refusal to pay plaintiff’s claims.

LSA-R.S. 22:656 provides,

All death claims arising under policies of insurance issued or delivered within this state shall be settled by the insurer within sixty days from the date of receipt of due proof of death and should the insurer fail to do so without just cause, then the amount due shall bear interest at the rate of six per cent per annum from date of receipt of due proof of death by the insurer until paid.

In Ducote v. Life Insurance Company of Louisiana, 245 So.2d 531 (La.App. 3rd Cir. 1971) the court held, that if the insurer had reasonable grounds to believe that it was not liable under a “good health” provision of an insurance contract, the award of penalties under LSA-R.S. 22:656 was not proper.

In the present case we do not believe that the Ducote case has any applicability. We have held that the defendant insurer could not deny recovery on the policies because the acts of the insurer’s agent in falsely filling out the application forms were the acts of his principal, the insurer, the defendant here. Therefore, the false answers do not bind the innocent insured nor bar recovery by her or her beneficiaries. We have so held on the basis of the Cloud, Frugé and Morein cases.

In the Morein case we said:

The policy defense that there was a misrepresentation is of course completely without merit. The acts of an insurance agent in filling out an application form falsely are the acts of his principal, the insurer, and they do not bind the innocent insured nor bar recovery by him or his beneficiaries. Frugé v. Woodmen of the World Life Insurance Society, La.App., 3 Cir., 170 So.2d 539, and decisions there cited.
* * * * * *
The insurer apparently preferred to resist liability upon its technical and tenuous defense rather than to evaluate the legal and factual inefficacy of its position and then pay within thirty days of proof of loss and demand as required by statute. The courts have consistently held health and accident insurers liable for statutory penalties where for similar reasons they have denied liability to their policyholders upon legal or factual defenses which upon investigation would prove to be insubstantial. Bankson v. Mutual Ben. Health & Accident Ass’n, 208 La. 1008, 24 So.2d 59; Miller v. Preferred Life Insurance Co., La.App., 2 Cir., 107 So.2d 323. See also Gleason v. Bankers Life & Casualty Co., La.App., 2 Cir., 147 So.2d 86.

The Cloud case presented facts very similar to those presented here. In that opinion, which came from this court, we said:

In the instant case defendant clearly failed to establish that the Clouds made any material misrepresentations or that they are at any time sought to deceive the insurer. Rather, the record amply supports the trial court’s finding that the false statements were the product of defendant’s agent and that defendant is bound thereby.
The trial court determined that plaintiff is entitled to penalties and attorney’s fees under LSA-R.S. 22:657(A). We agree with this conclusion and are pleased to adopt the learned trial judge’s reasons in support of such finding:
“Mrs. Cloud has asked for penalties, being the additional sum of $1,500.00, plus attorneys fees. The record of evidence herein convinces this Court that any reasonable investigation of Mrs. Cloud’s claim by the insured would have disclosed that Mrs. Alma Cloud would be entitled to recover the benefits under this policy. No employee of defendant or independent adjuster made such a thorough investigation. The insurer took the position that the error placed in the application by their agent (who, according to the record of evidence, they did not consult) was proof sufficient to exercise their privilege to declare the major medical policy null and void as if never written.
L.R.S. 22:657(A) permits the assessment of penalties and attorneys fees unless the insurer’s refusal to pay the claim within 30 days is based on ‘just and reasonable grounds, such as would put a reasonable prudent businessman on guard, exist.’ The policy defense that there was misrepresentation this Court has held was without merit. The acts of their insurance agent in filling out the application form with incorrect data when the agent had been given the correct facts are the facts of his principal, the insurer. Other than relying on the application, the insurer made no effort to prove any misrepresentation by Mrs. Cloud.
The insurer failed to properly investigate and evaluate the legal and factual efficacy of its position and preferred to resist liability upon its technical and tenuous defense of misrepresentation. Such action on the insurer’s part renders it liable for the statutory penalties.” See Morein v. American Physicians Ins. Co., 192 So.2d 887 (La.App. 3rd Cir. 1966).

The Frugé case did not involve the awarding of penalties and attorney’s fees, and held only that the insurer could not avoid recovery on a policy. Frugé did, however, announce the policy that “if the agent by mistake, fraud or negligence inserts erroneous or untrue answers to the questions contained in the application, these representations bind the insurer but are not binding upon the insured . . ” Evidently, the rationale of the Cloud and Morein cases is that it would be inconsistent, on the one hand, to hold that an insurer is bound by the acts of its agent, which it must know at the time a claim arises, and to hold, on the other hand, that the insurer can make out just and reasonable grounds for resisting recovery on the basis of proof of poor health of the insured. Any reasonable evaluation of the claim should convince the insurer that, regardless of the facts, it is bound by its agent’s acts. Therefore, the insurer should know that it is bound on the policy. Such, we believe, is the case here. Under the circumstances, the insurer was arbitrary and capricious in not paying the claims in reliance on the sound health clause in the policies.

Proper evaluation of the situation with respect to the burial insurance policy and the defense that the policy was not issued until after the death of Gracie Ryan should also have convinced the insurer that the claim must be paid.

For the foregoing reasons we agree that the trial court properly awarded statutory penalties. Therefore, the judgment of the trial court will be affirmed. The costs of this appeal are assessed to the defendant-appellant.

AFFIRMED.

SWIFT, J., dissents as to the award on the burial policy, but otherwise concurs.

      . Jordan v. Travelers Insurance Company, supra, crystalized the following standard for meeting the burden of proof or sufficiency of evidence: . [P]roof by direct or circumstantial evidence is sufficient to constitute a preponderance, when, taking the evidence as a whole, such proof shows that the fact or causation sought to be proved is more probable than not.”


author: SWIFT, Judge.

text:
    Roy J. BARRETT and Bessie Lee Barrett, Plaintiffs-Appellants, v. Willard WHITE and Cathleen White, Defendants-Appellees.
    No. 7550.
    Court of Appeal of Louisiana, Third Circuit.
    May 21, 1980.
    Handley & Lavern, J. Douglas Handley, Lake Charles, for plaintiffs-appellants.

      Camp, Carmouche, Palmer, Barsh & Hunter, G. Michael Bourgeois, Lake Charles, for defendants-appellees.
    Before FORET, SWIFT and STOKER, JJ.
   SWIFT, Judge.

This was originally a possessory action, but it has been converted into a petitory action through a reconventional demand filed by the defendants, Willard and Cathleen White. The Whites assert they are the record owners of a ten acre tract described as the Southeast Quarter of the Southeast Quarter of the Northwest Quarter of Section 13, Township 9 South, Range 13 West, Calcasieu Parish, Louisiana, which is in the possession of the plaintiffs, Roy J. and Bessie Lee Barrett. The Barretts claim the property by acquisitive prescription of thirty years. The trial court rendered judgment in favor of the Whites, declaring them to be owners of the subject property. Plaintiffs have appealed.

At the trial it was stipulated that Mr. and Mrs. White have record title to the land in dispute. The trial judge succinctly stated the pertinent facts as follows:

“The evidence shows that most of the Northwest Quarter of Section 13 was owned at one time by Eldridge Drake. On November 25, 1922, Eldridge Drake sold the Southwest Quarter of the Southeast Quarter of the Northwest Quarter of Section 13 to his son-in-law, Bill Perkins who was married to Clara Drake. After the death of Eldridge Drake and on November 2, 1925, his heirs including Clara Drake Perkins sold the disputed land to Lastie Paul Vincent, an ancestor in title of Mr. and Mrs. Willard White.

“According to Mrs. Elizabeth Ozane who lived near the disputed land and was seventy-one (71) years of age at the time of trial, Bill Perkins and his wife, Clara Drake Perkins, moved onto the Southwest Quarter of the Southeast Quarter of the Northwest Quarter of Section 13 in 1921 after erecting a house thereon. According to Mrs. Ozane, the following year (1922) Bill and Clara Perkins erected a fence enclosing both the Southwest Quarter of the Southeast Quarter of the Northwest Quarter and the Southeast Quarter of the Southeast Quarter of the Northwest Quarter of Section 13. The Court finds that this fence was not erected on the property lines but was erected an undisclosed distance North of the North Line of the South half of the Southeast Quarter of the Northwest Quarter; approximately seventy (70) feet East of the East line of the Southeast Quarter of the Southeast Quarter of the Northwest Quarter; and approximately one hundred twenty-six (126) feet South of the South line of the South half of the Southeast Quarter of the Northwest Quarter of Section 13. The fence as erected by Mr. Bill Perkins encroached on the East and South upon land owned by Lutcher and Moore Lumber Company. There was introduced into evidence as “White 1” a copy of a lease dated February 21, 1964 with Mrs. Bill Perkins as lessee wherein she leased that portion of property owned by Lutcher and Moore Lumber Company lying within the fenced area. One of the plaintiffs, Mrs. Roy Barrett, testified that she was not aware that her mother, Clara Drake Perkins (Mrs. Bill Perkins) had signed the 1964 lease with Lutcher and Moore Lumber Company. She did testify that she was aware that during his lifetime, her father had executed similar leases with Lutcher and Moore Lumber Company. Mrs. Barrett testified that the fence which was erected by her father was continually maintained by him until his death and by her husband, Roy Barrett.

“According to Mr. and Mrs. Barrett, in 1948, Mr. Bill Perkins permitted them to construct a house at the Northeast Corner of the Southwest Quarter of the Southeast Quarter of the Northwest Quarter. It appears from the testimony of several witnesses, that the Barrett house is situated partly on the Southwest Quarter of the Southeast Quarter of the Northwest Quarter and the Southeast Quarter of the Southeast Quarter of the Northwest Quarter. In any event, the Barretts have occupied the house since 1948. During the period of time from 1922 until the present, the disputed property has been under fence and the enclosed property has been used for the grazing of cattle by either the Bill Perkins family or the Roy Barrett family or both. It is not clear when Mr. Bill Perkins died but Mrs. Perkins died in 1969.

“Mrs. Barrett testified she thought her parents owned the ten (10) acres. Mr. Barrett testified he knew his father-in-law did not have title; that he knew that the Vin-cents’ (sic) owned the property; and that he did not consider himself to be the owner of the property but he had used the property for thirty-two (32) years.”

The sole issue presented on this appeal is whether the Barretts’ possession has been sufficient to give them a thirty-year prescriptive title to the ten acres in dispute.

In Wm. T. Burton Industries, Inc. v. McDonald, 346 So.2d 1333, 1336 (La.App. 3 Cir. 1977), this court said:

“The law is settled that in order for a possessor to successfully claim the ownership of immovable property under a plea of thirty years acquisitive prescription, he must establish not only that there has been corporeal possession of the property for the required period of time, but also that there was a positive intent to possess the property as owner during that time. The intent to possess as owner may be inferred from the surrounding facts and circumstances. Ordinarily, however, the intent to possess as owner should not be inferred unless the actions of the possessor, or the surrounding facts and circumstances, are sufficient to reasonably apprise the public, and the record owner of the property, of the fact that the possessor intended to possess as owner. The burden of proof to establish the facts essential to support a plea of thirty years acquisitive prescription rests on the party who pleads it. Humble v. Dewey, 215 So.2d 378 (La.App. 3 Cir. 1968), and cases cited therein. [Emphasis added.]
Also in Humble we said at page 381: “In order for a possessor to successfully claim the ownership of immovable property under a plea of thirty years acquisitive prescription, he must establish not only that there has been corporeal possession of the property for the required period of time, but also that there was a positive intention to take and commence possession of the property as owner. [Emphasis added.]

In regard to the character of his possession Mr. Barrett testified that while the question of ownership of the disputed tract had not come up until just before this suit was filed, he knew he did not own this land and never claimed to own it. Instead, he was simply using it. This testimony was similar to that of the possessor in the recent case of Harper v. Willis, 383 So.2d 1299 (La.App. 3 Cir. 1980), whose right to bring a possessory action was denied.

Under the circumstances the trial judge concluded the Barretts had failed to establish that their possession of the property was public and unequivocal or under the title as owner. According to our supreme court in Meridian Land & Mineral Corporation v. Bagents, 211 La. 627, 30 So.2d 563, 567 (1947):

“It is important also to consider that the question of whether or not these defendants and their father held continuous possession of the land for 30 years as owners is one of fact, and that the finding on such a question by the trial judge, who saw and heard the witnesses and perhaps was acquainted with them, is entitled to great weight and will not be disturbed unless manifestly erroneous.” [Emphasis added.]

From our review of the record we certainly cannot say that the trial judge was manifestly in error or clearly wrong in finding that the plaintiffs’ possession did not begin and continue for 30 years as owner of the disputed 10 acres and therefore their plea of 30 years prescription was unavailing.

For the foregoing reasons, the judgment of the district court is affirmed at the cost of plaintiff-appellant.

AFFIRMED.


author: DOMENGEAUX, Judge.

text:
    Alton Joseph CHOATE, Individually, and for and on behalf of his minor child, Steve Choate, Plaintiff-Appellee, v. Karlan Pope GREENE, Individually and as Administrator of his Minor Child’s (Russell Greene) Estate, Defendant-Appellant.
    No. 7570.
    Court of Appeal of Louisiana, Third Circuit.
    May 21, 1980.
    Davidson, Meaux, Sonnier & Roy, M. Candice Hattan, Lafayette, for defendants-appellants.
    Joseph A. Koury, Lafayette, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and LABORDE, JJ.
   DOMENGEAUX, Judge.

This jury case resulted from a suit for damages brought by Alton Joseph Choate, individually and on behalf of his minor son, Steve Choate, against Karlan Pope Greene, individually and as administrator of the estate of Russell Greene, for injuries sustained by Steve Choate in the course of a fight with Russell Greene. In a unanimous verdict, the jury found that the defendant was liable and awarded $5,000.00 in damages. The defendant-appellant brings this appeal alleging that the jury erred in finding him liable, and alternatively, that the damages awarded were excessive. The plaintiff-appellee answered seeking an increase in damages. We affirm.

On the night of November 19, 1977, Steve Choate and Russell Greene attended a dance at the Abbeville Country Club in Abbeville, Louisiana. At one point during the evening Steve accidently bumped into Russell. Words were exchanged as tempers rose. During the heated discussion they agreed to go outside and fight at Steve’s invitation. On the way outside Steve shoved Russell into a table. As Russell walked through the front door he removed his belt which had a heavy metal belt buckle. The boys walked approximately 30 feet outside the clubhouse onto a nearby putting green.

The facts become somewhat disputed at this point in the disturbance. The plaintiff-appellee argues that once on the putting green Russell quickly swung the belt at Steve, hitting his arm with the first blow and his head with a second. The defendant-appellant claims that the belt was swung only after Steve advanced toward Russell to begin fighting. Regardless of who initiated the confrontation on the putting green, by the time the chaperones arrived to separate the boys, Steve had received a head injury caused by being struck by the swinging belt buckle.

The defendant argues that Russell was entitled to swing the belt at Steve because he, being a person threatened with bodily harm, had the right to use force reasonably necessary for self-protection. While this general rule of self-defense is a correct statement of the law, the jury apparently concluded that it did not fit the facts of this case.

Defendant also argues that the plaintiff should be denied recovery because Steve’s voluntary participation in the fight leaves him without a right to complain simply because he suffered the worst of it. Buchert v. Metropolitan Life Insurance Company, 219 So.2d 584 (La.App. 4th Cir. 1969). However, it was within the province of the jury to find that the force used by the defendant was in excess of that which was reasonably necessary, and for that reason impose liability.

A case such as the one before us rests on its own peculiar facts and circumstances. Questions such as which party was the aggressor, and whether a party used excessive force are clearly factual determinations. Similarly, the dispute as to which of the boys actually started the fight on the putting green can only be resolved on the basis of an evaluation of the credibility of the witnesses.

The standard of review in a factual dispute such as the one before us is explained in Canter v. Koehring, 283 So.2d 716 (La.1973):

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

In Arceneaux v. Domingue, 365 So.2d 1330 (La.1978), the Supreme Court defined manifestly erroneous as meaning clearly wrong.

We cannot say that the jury was clearly wrong in finding that excessive force was used. The record can support that determination.

Both parties question the amount of damages set by the jury.

Steve’s injury was described by his physician, Dr. Steven I. Goldware, a specialist in neurological surgery, as an open depressed fracture in the left parietal area. He testified that Steve was not unconscious when he came to the hospital shortly after the altercation, but was experiencing a lightheaded feeling. Surgery was performed to correct the fracture. There was no brain injury. After five days in the hospital Steve was discharged, without medication. He was on limited activities for about a month, at which time he was advised that he could resume normal activities. It was suggested, however, that he wear a hard hat when engaging in any activity which might cause him to be hit in the head. This was to protect him from any additional injury until healing had progressed to the point that Steve no longer needed additional protection. It is not clear if and for how long Steve wore a hard hat.

Regarding the issue of damages, we observe Civil Code Article 1934 which provides that, in the assessment of general damages, “much discretion must be left to the judge or jury . . .

In Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977), the Supreme Court stated:

“We do reemphasize, however that before a Court of Appeal can disturb an award made by a trial court that the record must clearly reveal that the trier of fact abused its discretion in making its award.” (Emphasis ours)

This standard of review was also discussed in Reck v. Stevens, 373 So.2d 498 (La.1979), where the Supreme Court stated:

“Thus, the initial inquiry must always be directed at whether the trier court’s award for the particular injuries and their effects upon this particular injured person is, a clear abuse of the trier of fact’s ‘much discretion,’ La.Civ.C. art. 1934(3) in the award of damages. It is only after articulated analysis of the facts discloses an abuse of discretion, that the award may on appellate review, for articulated reason, be considered either excessive, Carollo v. Wilson, 353 So.2d 249 (La.1977); Schexnayder v. Carpenter, 346 So.2d 196 (La.1977), or insufficient, Olds v. Ashley, 250 La. 935, 200 So.2d. 1 (1967). Only after such determination of abuse has been reached, is a resort to prior awards appropriate under Coco for purposes of then determining what would be an appropriate award for the present case.” (Footnote omitted)

We cannot find that the award of $5,000.00 was an abuse of discretion of the jury. We note that it was within their province to consider Steve’s conduct in mitigation of damage. Morneau v. The American Oil Company, 272 So.2d 313 (La.1973); Andrepont v. Naquin, 345 So.2d 1216 (La. App. 1st Cir. 1977). Considering Steve’s desire to fight as evidenced by his shoving Russell into a table while inside the clubhouse, the jury may have mitigated the damages.

For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are taxed to the defendant-appellant.

AFFIRMED.