text:
    LIPSTATE CREATIVE SERVICES, INC., Plaintiff-Appellee, v. Mary REGAN, Defendant-Appellant.
    No. 8516.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 16, 1981.
    Rehearing Denied Jan. 29, 1982.
    D. Warren Ashy, Lafayette, for defendant-appellant.
    Andrus & Preis, Gary McGoffin, Lafayette, for plaintiff-appellee.
    Before CULPEPPER, CUTRER and STOKER, JJ.
   STOKER, Judge.

This is a suit on an open account in which the plaintiff-appellee, Lipstate Creative Services, Inc., sued the defendant-appellant, Mary Regan for the sum of seventeen thousand sixty-three hundred and 70/100 ($17,-063.70) dollars. The defendant suspensively appealed from a judgment of the trial court in favor of the plaintiff. We affirm.

Mary Regan was one candidate in a field of four candidates for the Louisiana State House of Representatives, District 44 in the latter part of 1979. Mary Regan retained Lipstate Creative Service, Inc., to handle her media campaign and provide other services usual for an advertising agency in a political campaign. Mary Regan finished second place in the field of four and thus ran in the general election for this seat. She continued consulting with Lipstate Creative Services, Inc., in this general election. Mrs. Regan was defeated in the general election. The total cost of the services provided by Lipstate to Mary Regan for the entire campaign amounted to $38,139.06 of which $17,063.70 remained unpaid at the conclusion of the campaign. Of this amount, $2,704.44 was carried over from the first primary and the remaining $14,359.26 was attributable to the general election. Formal demand was made for payment of this account by certified letter. Mary Re-gan refused to pay this amount and takes the position that the services provided in the general election by Lipstate were donated; or alternatively, that the charges were unjustified. This lawsuit was subsequently tried, with the trial judge awarding judgment to the plaintiff-appellant, Lips-tate Creative Services, Inc., in the amount of $17,063.70 with attorney fees in the amount of $4,365.00.

The defendant-appellant contends that the trial court erred in rendering judgment in favor of plaintiff-appellee on the grounds there was insufficient proof to support such a judgment. We disagree.

The plaintiff-appellee had entered into an oral contract with the defendant-appellant for the former to provide public relation services. The appellant contends that a portion of these services provided by appel-lee were donated. Louisiana Civil Code article 2232 provides the following:

“He who claims the execution of an obligation must prove it.
“On the other hand, he who contends that he is exonerated, must prove the payment or the fact which has produced the extinction of the obligation.”

Louisiana Civil Code article 2277 further provides:

“All agreements relative to movable property, and all contracts for the payment of money, where the value does not exceed five hundred dollars, which are not reduced to writing, may be proved by any other competent evidence; such contracts or agreements, above five hundred dollars in value, must be proved at least by one credible witness, and other corroborating circumstances.”

The law on the plaintiff’s burden of proof in such a case was discussed in Freiberg v. Rembert, 213 So.2d 104 (La. App. 1st Cir. 1968), at page 105:

“In order to sustain an action on an open account a plaintiff bears the burden, as he does in any civil matter, of proving his demand by a preponderance of the evidence. (Citations omitted.) This means simply that every allegation required to establish a legally enforceable open account must be supported by evidence of greater weight than that produced to disprove the account.”

An examination of the record reveals that plaintiff did indeed meet his burden of proof in establishing an open account. Jo Ann Lipstate testified at trial that she was president and sole owner of Lipstate Creative Services, Inc., at the time services were rendered to Mary Regan. She further testified about her initial contact with Mary Regan, their discussion of the services to be provided for the campaign and anticipated costs of these services, and her involvement in the campaign. Simone Restrepo, an employee of Creative Services, testified that she had contracted for media advertising on behalf of Mrs. Regan and that she supervised the billing for Mrs. Regan’s campaign. She identified the invoices which were prepared for Mrs. Regan, the supporting documentation, and the ledger sheets which she had also prepared for Mrs. Regan’s account. These documents were all admitted into evidence.

There is no dispute as to the fact that plaintiff performed substantial services for Mary Regan following the first primary which were directed toward the run-off in the general election. There is' no question that Mary Regan knew plaintiff was buying media time on her behalf, and charges for this time form part of the debt sued upon. In the trial of this case appellant sought to show that the charges for various services were excessive or above customary charges but she adduced no convincing proof in support of this contention. Appellant also sought to show that the quality of plaintiff’s services was poor. Only unsupported opinion was adduced in this regard, but in any event, there is no proof that plaintiff was not entitled to be paid for its services. We find that the evidence was sufficient to establish the existence of an open account. The trial court was not clearly wrong in its finding in this regard.

After a creditor has established a prima facie case against a debtor on an open account, the burden devolves upon the debtor to disprove the existence or correctness of the account. Freiberg v. Rembert, supra. Defendant contends that plaintiff’s prima facie case was overcome in that the evidence indicates that the services rendered after the primary election were donated. We disagree.

Appellant bases her contention concerning the donation of services on a statement by Jo Ann Lipstate. In the run-off primary when it became necessary to buy media time and incur other expenses, Mary Re-gan’s campaign fund was depleted. Jo Ann Lipstate then advised appellant that her corporation would “cover” or “carry” her. The clear implication of this assertion is that Lipstate Creative Services, Inc., would grant Mary Regan credit for services rendered and for advances made for the purchase of media time and other expenses incurred on appellant’s behalf. There was no intention to donate these services. Plaintiff continued to bill Mary Regan and no complaint was made. Appellant’s true attitude and belief concerning the debt sued on is indicated in the election campaign finance disclosure statements filed by her in compliance with law. Her reports filed after the general election show an amount almost equal to the unpaid amount sued on as an outstanding debt owed to Lipstate Creative Services, Inc.

The plaintiff-appellee has answered this appeal asking for additional attorney fees to cover the defense of this appeal. We hereby grant the plaintiff-appellee an additional award of attorney fees in the amount of five hundred dollars ($500.00).

For the above and foregoing reasons the judgment of the trial court in favor of the plaintiff-appellee Lipstate Creative Services, Inc. is hereby amended to increase the award of attorneys fees from four thousand three hundred sixty-five dollars ($4,365.00) to four thousand eight hundred sixty-five dollars ($4,865.00). In all other respects the judgment is affirmed. All costs are taxed to the defendant-appellant.

AMENDED AND AFFIRMED.


source: Caselaw Access Project

author: GUIDRY, Judge. PER CURIAM.

license: Public Domain

text:
    AUTO PAINT & SUPPLIES CO., INC., Plaintiff-Appellee, v. Huey HALE, James E. McCrory, Intervenor-Appellant.
    No. 8520.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 16, 1981.
    Rehearing Denied Jan. 29, 1982.

      Martin S. Sanders, Jr., Winnfield, for in-tervenor-appellant.
    Voltz & Ware, Gus A. Voltz, III, Alexandria, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and DOUCET, JJ.
   GUIDRY, Judge.

In this matter third party intervenor, James E. McCrory, seeks to enjoin a judicial sale of certain movable property allegedly subject to foreclosure at the instance of plaintiff in the principal action, Auto Paint and Supplies Company, Inc. (hereafter APASCO).

In the principal action, APASCO secured a money judgment in the sum of $1,370.71 against the defendant, Huey H. Hale. That judgment, rendered on January 13, 1981, recognized plaintiff’s special lien and chattel mortgage on certain movable property described as “(1) new Speedair compressor model 7Z486 with five (5) horsepower, 220 volt single phase motor and 80 gallon tank.” Following rendition of this judgment, a writ of seizure and sale was issued directing the Sheriff of Natchitoches Parish to seize and sell the property described above in satisfaction of said judgment. Subsequent to the issuance of the writ of seizure and sale, James E. McCrory intervened in the aforesaid proceeding claiming ownership of the above described movable property and seeking an injunction to prevent the sale of such property until the question of ownership could be resolved. In furtherance of his request for injunctive relief, McCrory obtained a temporary restraining order and plaintiff was ordered to show cause why a preliminary injunction should not issue. Thereafter, APASCO filed a motion to dissolve the temporary restraining order and additionally, sought damages and attorney’s fees for its wrongful issuance. The matters were consolidated and fixed for trial on the same date.

Following a hearing on these consolidated matters the trial court held in favor of APASCO ordering that the temporary restraining order be dissolved and interve-nor’s motion for a preliminary injunction be denied. Further, judgment was rendered in favor of APASCO for $667.50 as attorney’s fees and the Natchitoches Parish Sheriff was ordered to reseize and sell the subject movable property. Intervenor, James E. McCrory, appeals suspensively from the ruling of the trial court.

The record discloses that Huey H. Hale purchased a Speedair compressor from defendant APASCO. At the time of sale, the purchase was made on open account. However, shortly thereafter, Hale encountered financial difficulties and on May 30, 1980, he signed a promissory note and chattel mortgage in favor of APASCO. The record fails to indicate whether or not the chattel mortgage was ever recorded in the chattel mortgage records of Natchitoches Parish, Louisiana, and, if so recorded, the date on which such mortgage was recorded. Inter-venor, James E. McCrory, purchased the movable property in dispute from Hale. The record fails to establish when this sale took place, that is, whether such sale occurred prior to or subsequent to the execution of the subject chattel mortgage. Neither Hale nor McCrory could recall exactly when the sale was conducted, although both agreed that the sale had taken place and that it was a verbal sale. Hale admitted selling the compressor, and additionally, conceded that he did not inform McCrory that the property was mortgaged. McCro-ry, of course, recalled purchasing the property and was in possession of the movable when it was seized by the Sheriff pursuant to plaintiff’s writ of seizure and sale.

The following issues are presented on appeal:

(1) What effect, if any, does the failure by intervenor to join the defendant in the principal action, Huey H. Hale, as a party defendant in his request for injunctive relief have upon the validity of intervenor’s petition for injunctive relief?

(2) Was intervenor’s petition for injunc-tive relief properly verified?

(3) Is the description of the allegedly mortgaged movable property as contained in the chattel mortgage sufficient to provide notice to third parties, including the intervenor, of the encumbered status of the subject property?

APASCO contends that McCrory’s failure to serve the defendant in the principal action, Huey H. Hale, with a copy of his petition of intervention results in the invalidity of the intervenor’s petition for a preliminary injunction. The record reflects that the petition for injunctive relief was filed pursuant to LSA-C.C.P. Art. 1092, however, only the seizing creditor, APAS-CO, and the Sheriff of Natchitoches Parish were made parties thereto. Huey Hale was not made a party defendant. LSA-C. C.P. Art. 1093 provides that when the intervention asserts ownership of the seized property, the petition shall be served on the Sheriff and a11 parties to the principal action as provided in LSA-C.C.P. Art. 1313. Article 1313 provides that such service may be made either by the Sheriff or by mailing a copy thereof to the adverse party at his last known address or to his counsel of record delivering a copy thereof to the clerk of court if there is no counsel of record and the address of the adverse party is not known. In the instant case, there is no dispute pertaining to proper service made on APASCO and the Sheriff, however, as noted, APASCO questions the effect of non-service of the petition upon Huey H. Hale. We conclude that APASCO’s contention is without merit in that the right to object to non-service is personal to Huey H. Hale, the defendant in the principal action. Hale has made no objection to McCrory’s failure to strictly comply with the provisions of LSA-C.C.P. Art. 1093. Additionally, the record reflects that Hale appeared and testified at trial. Thus, we conclude that Hale sustained no prejudice as a result of non-service of intervenor’s petition. See Bulova Watch Company, Inc. v. Nobles, 71 So.2d 396 (La.App. 1st Cir. 1954).

APASCO next argues that the petition for injunctive relief is defective in that the intervenor failed to adequately verify the petition of intervention pursuant to the provisions of LSA-C.C.P. Art. 3603. The cited article provides that a temporary restraining order shall be granted when it clearly appears from specific facts shown by a “verified petition” or supporting affidavit that irreparable injury will result to the applicant before notice can be served and the hearing had. Such verification may be made by plaintiff or his counsel. The Official Revision Comments accompanying this article make clear that the aforesaid article does not require verification of the petition. Rather, LSA-C.C.P. Art. 3603 simply mandates that the facts alleged to show immediate and irreparable injury must be set forth either in a verified petition or a supporting affidavit.

The record reflects that intervenor’s petition is verified, although such verification is based upon the best of intervenor’s knowledge, information, and belief. Even if such verification be considered deficient because made on information and belief we attach no merit to appellee’s argument for the reasons which follow.

LSA-C.C.P. Art. 3601 provides that “an injunction shall issue in cases where irreparable injury, loss, or damage may otherwise result to the applicant, or in other cases specifically provided by law... ”. We conclude that the language of the article above quoted means that in cases specifically provided by law, one need not allege facts showing irreparable injury. Under the plain provisions of LSA-C.C.P. Art. 1092, a third person claiming ownership of seized property may assert his claim by intervention and the court may grant him injunctive relief to prevent such sale before adjudication of his claim to ownership. Therefore, the latter article clearly envisions the granting of injunctive relief without the necessity of showing irreparable harm. We conclude that if verification is required, where one must specifically allege facts necessarily showing irreparable injury, it should follow that in those instances where one is not required to make such factual allegations, verification is not required. For these reasons we find no merit in APASCO’s contention that the petition for intervention is defective for want of proper verification.

The final issue presented on appeal, and the most important, concerns whether or not the movable property, the ownership of which is claimed by intervenor adverse to the seizing creditor, was properly and adequately described in the chattel mortgage document. A corollary issue, not raised on appeal, concerns the purported recordation of the chattel mortgage and the corresponding dates of such recordation and the verbal sale to intervenor of the seized property. (See footnote 1). We observe that the chattel mortgage document contained in the record bears no indication of its recordation by the parish clerk of court. Presumably, the document was timely and property recorded since intervenor does not question such recordation. Be that as it may, for the reasons hereafter given, we conclude that intervenor did not receive proper notice, constructive or otherwise, regarding the encumbered nature of the movable property, prior to the sale of such property to him.

Intervenor contends that the description of the movable property in question as contained in the chattel mortgage document was defective and insufficient to provide potential good faith third party purchasers with notice that the property was mortgaged. The record reflects that the movable property in dispute was described in the chattel mortgage as “New 7Z486 Speedair Compressor, 5 H.P., 220 Volt, 1 Phase 80 Gal. Tank.” The record reflects and the parties concede that the model number of the property as provided in the chattel mortgage is incorrect. The correct model number of the disputed property is 3Z495. Intervenor avers that the incorrect model number constitutes a defect in the description in the mortgage document and that such defect makes the description insufficient to place third parties on notice that the property was mortgaged. We agree.

The trial court concluded that McCrory could not urge any defect in the mortgage since such objection was personal to the defendant in the principal action, Huey H. Hale. This was clear error. Questions as to the validity and completeness of a description of property contained in a security device, such as the chattel mortgage at issue, can surely be raised by subsequent purchasers from the mortgagor. See 14 C.J.S. § 98.

In opposition to intervenor’s contention that the property description is defective, APASCO urges that Hale owned only one Speedair compressor with five (5) horsepower motor and 80 gallon tank, and that it was located at his shop at Rt. 13, Box 148, Natchitoches, Louisiana and that the description, although bearing an improper or erroneous model number, was adequate. In this regard, APASCO avers that LSA-R.S. 9:5352 only requires that the description of the mortgaged property shall be set forth so that the itém may be identified and its location stated.

In Domengeaux v. Daniels, 401 So.2d 655 (La.App. 3rd Cir. 1981), our court stated:

“The Chattel Mortgage Statute states, with respect to the description necessary for a specific item, that ‘a full description of the property to be mortgaged shall be set forth so that it may be identified and its location shall be stated.’ LSA-R.S. 9:5352, A. Under the jurisprudential rule, which is more liberal than a strict construction of the statute, the description of property subject to a recorded chattel mortgage will be sufficient, if it enables third persons, aided by such reasonable inquiries which the instrument itself suggests, to identify the property. Union Bldg. Corporation v. Burmeister, 186 La. 1027, 173 So. 752 (La.1937); All State Credit Plan, Houma, Inc. v. Fournier, 175 So.2d 707 (La.App. 1st Cir. 1965). The determination of the sufficiency of description depends upon the peculiar circumstances surrounding each individual case. All State Credit Plan, Houma, Inc., supra."

In Domengeaux, supra, plaintiffs leased certain farm land to the defendant who subsequently failed to pay the rent due. Thereafter, plaintiff filed suit asserting a lessor’s privilege and had all movable effects located on the leased premises seized under a writ of sequestration. Subsequently, an Alexandria, Louisiana bank intervened claiming a superior lien under a prior recorded chattel mortgage on certain property seized pursuant to plaintiff’s writ. However, the description of the property contained in the chattel mortgage document failed to list the serial numbers of the equipment subject to the mortgage. The record reflects that there were numerous pieces of farm equipment and machinery located on the premises, some of which were not subject to the bank’s chattel mortgage. Plaintiffs maintained that without a full and proper identification of each piece of equipment, including serial numbers, in-tervenors’ chattel mortgage was ineffective as to them. In Domengeaux, supra, we held that where equipment subject to a chattel mortgage is listed within the mortgaged document without serial numbers when such are available, and there exists on the same premises similar equipment, such description is ineffective as to third parties. However, the court indicated that had the equipment listed in the mortgage been the only equipment of its type at that location, then a general description may have been sufficient. In this regard, the Domengeaux court noted:

“In Smith v. Bratsos, 202 La. 493, 12 So.2d 245 (La.1943), the Supreme Court held that the description of a refrigerator in a chattel mortgage was sufficient to place third parties on notice, although there was no serial number included. The evidence showed that the serial number had been inserted after the execution of the chattel mortgage. The court pointed out, however, that the refrigerator was the only one of its kind and make on the premises and had there been other chattels of a like nature, the description would have been insufficient. See also Young v. Squeeze Tools, Inc., 350 So.2d 967 (La.App. 2d Cir. 1977), where the drilling rig at issue was the only one on the premises.”

The instant case is clearly distinguishable. Admittedly, the Speedair compressor in dispute was the only piece of equipment of its kind located at Huey H. Hale’s place of business, however, the chattel mortgage document in question did not omit the model number of the mortgaged movable property, but rather, provided a model number that was simply incorrect. That is, potential third party purchasers, were provided a complete but erroneous description of the property subject to the chattel mortgage. Surely, third party purchasers may rely in good faith on what purports to be an accurate and complete description of property subject to a lien or mortgage. See All State Credit Plan, Houma, Inc. v. Fournier, supra. In All State Credit Plan, Houma, Inc. v. Fournier, supra, our brethren of the First Circuit stated:

“It is settled jurisprudence that notwithstanding the requirements of description contained in our chattel mortgage law LSA — R.S. 9:5352, property subject to a recorded chattel mortgage need not be so described as to be capable of identification by the written recital or name used to designate it in the mortgage, but a description enabling third persons, aided by such reasonable inquiries which the instrument itself sua:srests. is sufficient. Union Bldg. Corporation v. Burmeister, 186 La. 1027, 173 So. 752; Consolidated Cos., Inc. v. Laws, 11 La.App. 676, 124 So. 775; Valley Securities Company, Inc. v. DeRoussel, 16 La.App. 115, 133 So. 405.” (Emphasis ours)

We conclude that it is the absence or omission of identifying information, such as serial numbers, which, under certain circumstances, triggers the requirement of further inquiry by third persons. On the other hand, if the mortgage document purports to provide an accurate and complete description of the mortgaged property, good faith third party purchasers need not make further inquiry regarding the status of the property regardless of whether or not the mortgaged equipment is the only one of its kind located on the premises. To decide otherwise would undermine the purpose and goals of our public records doctrine.

For the reasons assigned, the judgment of the trial court is reversed and set aside. It is now ordered, adjudged and decreed that plaintiff’s motion to dissolve the temporary restraining order and plaintiff’s demand for attorney’s fees and damages is ordered dismissed. It is further ordered, adjudged and decreed that a preliminary writ of injunction issue in the form and substance of the temporary restraining order and that the instant matter be remanded to the district court for further proceedings consistent with the views herein expressed. All costs of these proceedings in the trial and appellate courts are assessed to plaintiff-appellee, Auto Paint and Supplies Company, Inc.

REVERSED AND REMANDED.

On Application for Rehearing

PER CURIAM.

Plaintiff, in its application for a rehearing in this matter, urges that we erred when we stated in our original opinion that the identifying number used in the chattel mortgage to describe the seized property was inaccurate. Applicant points out that the number used to identify the equipment, i.e., 7Z486, although it is not stamped or otherwise made to appear on the equipment, is in fact a composite number used by the manufacturer to identify the assembly of components, i.e., compressor, motor and tank.

We concede that James Silva, President of the plaintiff corporation, did testify to that effect and acknowledge our error in failing to make this clear in our original opinion. However, the record does not reflect that this allegedly identifying composite number was known to anyone other than the manufacturer and its dealers for it does not appear stamped nor is it otherwise made manifest on any of the components. There are however, as noted in our original opinion, identifying numbers, plainly stamped on the components, none of which numbers appear in the chattel mortgage. Under these circumstances we adhere to our original opinion that if the mortgage document purports to provide an accurate and complete description of the mortgaged property good faith third party purchasers need not make further inquiry regarding the status of the property.

Appellant’s application for a rehearing is denied.

      . Neither party raises as an issue on appeal the failure of the record to reflect the date of sale and the date when the APASCO chattel mortgage was recorded, if it was so recorded.

      . LSA-C.C.P. Art. 1092 states:
      “A third person claiming ownership of, or a mortgage or privilege on, property seized may assert his claim by intervention. If the third person asserts ownership of the seized property, the intervention may be filed at any time prior to the judicial sale of the seized property, and the court may grant him in-junctive relief to prevent such sale before an adjudication of his claim of ownership.
      If the third person claims a mortgage or privilege on the entire property seized, whether superior or inferior to that of the seizing creditor, the intervention may be filed at any time prior to the distribution by the sheriff of the proceeds of the sale of the seized property, and the court shall order the sheriff to hold such proceeds subject to its further orders. When the intervener claims such a mortgage or privilege only on part of the property seized, and the intervention is filed prior to the judicial sale, the court mhy order the separate sale of the property on which the intervener claims a mortgage or privilege; or if a separate sale thereof is not feasible or necessary, or the intervener has no right thereto, the court may order the separate appraisement of the entire property seized and of the part thereof on which the intervener claims a mortgage or privilege.
      An intervener claiming the proceeds of a judicial sale does not thereby admit judicially the validity, nor is he estopped from asserting the invalidity, of the claim of the seizing creditor.”


author: BARRY, Judge. GULOTTA, Judge,

text:
    Charles GLOVER v. SOUTHERN PIPE & SUPPLY COMPANY & Chubb Pacific Indemnity Company.
    No. 12712.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 17, 1981.
    Writ Denied Feb. 19, 1982.

      Orlando G. Bendana and Wayne H. Carlton, Jr., New Orleans, for plaintiff-appellant.
    Christovich & Kearney, Paul G. Preston, New Orleans, for defendant-appellee.
    Before GULOTTA, GARRISON and BARRY, JJ.
   BARRY, Judge.

Plaintiff appeals from an adverse judgment denying disability benefits as a result of injuries received during his employment.

Plaintiff was employed by Southern Pipe & Supply Co. as a truck driver/laborer. He was standing on a pallet of wet pipes and fell approximately twelve feet to the ground striking his back on a two by four. His foreman witnessed the fall and testified that plaintiff was holding the side of his ribs and complaining of pain. The record includes testimony from five medical practitioners who presented conflicting opinions concerning plaintiff’s prognosis and ability to resume employment. In addition, Southern’s insurer produced two motion picture films taken by a private detective which attempted to contradict plaintiff’s testimony concerning his inability to function.

In written Findings of Fact and Reasons for Judgment the trial judge held that the plaintiff was injured on the job in the course and scope of his employment and briefly notes the medical testimony. Our learned colleague proceeds to emphasize plaintiff’s testimony that he could not stoop, bend, or lift anything around the house or on the job. It then appears plaintiff’s lawsuit was dismissed because of the movie film showing plaintiff picking up and carrying laundry. The Reasons for Judgment conclude: “In short, the film completely refutes all the plaintiff and his witnesses had to say, and conclusively shows the plaintiff, without any difficulty whatsoever, stooping, bending, lifting and carrying objects.”

In reading the entire record and comparing the trial court’s Reasons for Judgment, we feel our experienced and conscientious trial brother inadvertently committed error by assigning too much weight to the opinion of physicians who examined plaintiff for the purpose of this litigation, and far too much weight to the very brief motion pictures showing plaintiff performing one menial task.

Following his fall on May 16, 1980, plaintiff could not walk and was driven to the hospital by his foreman. He was examined in the emergency room by Dr. J. D. Thames, a general practitioner, and admitted as an inpatient where he remained for ten days. By deposition Dr. Thames testified that his initial diagnosis was strained muscles of the back. The hospital records reflect that Dr. Thames’ “impression” upon plaintiff’s hospital admission was “severe contusion, left side, lower, back with strained muscles.”

Dr. Thames did not testify concerning plaintiff’s treatment in the hospital. The hospital records reveal plaintiff was on pain relievers, tranquilizers, and muscle relaxers (Demerol, Dalmane, Vistaril, Parafon Forte, Valium, Tylenol with Codeine, and Flexar-il). A bed board was placed under his mattress and a heating pad on his back daily. Dr. Thames’ discharge note states: “On the tenth hospital day, patient had shown considerable improvement and was discharged on medications consisting of Parafon Forte, Valium 5 mg and Darvoset N100 when necessary for pain. He was advised to report to my office for daily heat treatments of his back.”

During plaintiff’s hospitalization Dr. Thames consulted Dr. J. L. Fambrough, an orthopedist, whose deposition states ... “it was my opinion at that time that he had an acute lumbosacral strain ... ”. Positive findings by Dr. Fambrough revealed plaintiff could only reach down to approximately the bottom of his knees and the straight leg raising test in a sitting position was positive with regard to low back pain at about sixty or seventy degrees. Dr. Fambrough did not feel plaintiff’s symptoms were associated with a disc. When asked what symptoms would indicate a disc he replied “a person can present — if a person has a herniated disc or ruptured disc, they may present with just back pain.”

Following his discharge from the hospital plaintiff had four office visits with Dr. Thames during which he received diathermy treatments to his back. Dr. Thames prescribed muscle relaxants and tranquilizers and discharged plaintiff on June 3,1980.

On June 9, 1980 plaintiff was examined by Dr. Charles H. Gideon, a chiropractor, whose diagnosis was a cervical sprain. From this initial visit until September 16, 1980 Dr. Gideon administered therapy and manipulation on twenty-five separate occasions: seven in June, twelve in July, four in August, and two in September. Treatment included manipulative corrections, electrical muscle stimulation, motorized traction, and heat. Dr. Gideon noted that the cervical sprain was accompanied by concomitant pa-ravertebral myofascitis with flexion sublu-xation. He testified plaintiff complained of headaches, left lower thoracic pain, and left lumbosacral pain radiating down the back of his left leg into his toes. Dr. Gideon recommended periodic evaluation, including x-rays, to evaluate plaintiff’s improvement and post-traumatic pathology and disability, if any. It was Dr. Gideon’s opinion that plaintiff’s injury was complicated by failure to reduce the subluxations at the time of his injury.

Dr. H. R. Soboloff, an orthopedist, examined plaintiff on July 15, 1980 at the request of the insurer. By deposition he stated that the straight leg raising test was positive in the supine position with soreness in the left side and plaintiff complained of soreness in the left flank area upon palpation. Dr. Soboloff opined that plaintiff felt pain in the left lumbosacral area and objectively there was soreness in the left flank, predominantly the kidney area, and suggested a urologist be seen; otherwise, the examination was negative. Dr. Soboloff stated that as of the date of his examination (two months post-accident) he would not allow plaintiff to perform heavy manual labor: “Heavy-duty work I would say he’s disabled. He could do light work, sitting at a desk or bench and not have to lift things. He could do things of that nature but I would not recommend that he do heavy-duty work unless he was thoroughly screened and was found to be negative in all areas.”

On September 8, 1980 plaintiff saw Dr. Stuart I. Phillips, an orthopedic surgeon, who testified he found muscle spasms in the lower back and limited motion. Dr. Phillips said the plaintiff could not bend and touch his toes and had a positive straight leg raising test. X-rays of the lower spine showed a slight decrease in the lumbosacral area. It was Dr. Phillips’ opinion that plaintiff had a probable lumbar disc, but not sufficiently acute for hospitalization or surgery. During Dr. Phillips’ next examination on October 20, 1980 plaintiff complained of neck pain. Dr. Phillips noted that it was not uncommon for symptoms of this type to “wax and wane”. He recommended that plaintiff should not perform repetitive heavy lifting and for him to return in six weeks.

Plaintiff’s last examination by Dr. Phillips was on December 2, 1980, sixteen days prior to trial and the orthopedist found that plaintiff’s condition had worsened due to more spasms and additional limited motion. Dr. Phillips testified: “It was in my opinion now about six months from the time of injury and was getting to the time when if the patient doesn’t respond to conservative treatment, he starts thinking about doing other things, and I asked him to come back after the first of the year, at which time we’d make up our minds if his pain was sufficiently severe to require him to be put in the hospital and worked up, normal testing that we do to see whether or not he has a ruptured disc.” It was Dr. Phillips’ opinion that plaintiff was disabled at the time of his first examination on September 8, 1980 from his normal occupation as a truck driver, and was “clearly” disabled at the time of trial. He concluded that a lumbar disc is the most likely diagnosis and estimated a present twenty-five percent disability of the lumbar spine.

Dr. Fambrough, who saw plaintiff on May 23, 1980 in consultation and opined that plaintiff had an acute lumbosacral strain, examined plaintiff again at defendant’s request prior to trial on December 8, 1980. Dr. Fambrough’s deposition states that “... I couldn’t palpate any muscle spasms definitely, however, just lightly palpating the lumbar musculature caused considerable vocal discomfort, and the plaintiff would pull away from me”. There was no thigh atrophy of either leg. Dr. Famb-rough did not see fit to repeat his x-rays because “I felt that since Dr. Phillips would apparently admit him to the hospital that he should go ahead and pursue that course”.

In summary of the medical record, Dr. Thames, general practitioner, found objective symptoms of lumbosacral strain and diagnosed contusions of the back following ten days hospitalization and discharged plaintiff eighteen days post-accident as fit to resume employment. We note with interest a statement by Dr. Thames that “A disc is usually preceded by an injury of a year’s duration gradually coming on and you get other problems with it, with the extremities, the muscles begin to atrophy and the reflexes begin to diminish and they get numbness in the involved leg, and that’s not going to develop in a month or two after they have had a back injury. A disc is a slow process.” Dr. Thames’ opinion eliminates the possibility that he would find a disc problem during his brief treatment of plaintiff.

Plaintiff then immediately turned to Dr. Gideon, the chiropractor, who treated plaintiff twenty-six times during the next nine weeks. His x-rays and examinations showed a chronic lumbosacral neuralgia, cervical and thoraco-costal strain with a prognosis of intermittent pain and stiffness in the cervical and lumbar regions.

We are impressed with the testimony of Dr. Phillips, an orthopedist and the treating physician at the time of trial. Dr. Phillips’ testimony is most convincing that plaintiff is probably suffering from a ruptured lumbar disc and is clearly disabled. He unequivocally stated that the plaintiff was disabled from the date of his first visit until the time of trial.

The two other physicians saw plaintiff on a total of three occasions. Dr. Fambrough saw plaintiff in the hospital following his accident at which time his diagnosis was an acute lumbosacral strain. His second and last examination was for litigation purposes at which time he did not take x-rays. He agreed that Dr. Phillips “. .. should go ahead and pursue that course... ”, referring to hospitalization and testing for a ruptured disc.

Defendant’s other physician, Dr. Soboloff, saw plaintiff on one occasion two months post-accident and found no objective orthopedic problem but recommended examination by a urologist.

We conclude that the preponderant medical evidence supports a finding that the plaintiff was patently disabled at the time of trial as a result of his job-related injury.

In his Reasons the trial judge gave great weight to the films and stated they completely refuted plaintiff’s testimony on his inability to stoop, bend, lift.

Defendant’s two 8 mm movies taken by a private investigator shortly before trial are brief and cover a very short time span. The pictures show plaintiff carrying an armful of clothes in a small plastic basket as he leaves the front door of a house and walks across a porch and down two steps (the porch to the ground appears to be approximately eighteen inches). He proceeds to an automobile parked next to the house and places the basket of clothes in the back seat, then walks back to the steps, up to the porch and into the house. Later the automobile returns and plaintiff again leaves the porch and goes to the vehicle, retrieves the clothes, and carries them in his arms back into the house. During one trip from the house plaintiff steps from the porch to the ground without using the steps. In his Reasons the trial judge recalls the plaintiff saying that he could not stoop, bend or lift anything around the house and then refers to Dr. Phillips’ testimony that his diagnosis was based in part on plaintiff’s inability to stoop, etc. Because the movies show plaintiff carrying clothes and placing them in the back seat of an automobile, the trial judge concluded that the film “completely refutes all the plaintiff and his witnesses had to say, and conclusively shows the plaintiff, without any difficulty whatsoever, stooping, bending, lifting and carrying objects.” (emphasis supplied)

All provisions of the workmen’s compensation statute are to be liberally construed in favor of claimants. LSA-R.S. 23:1209 Johnson v. Aetna Casualty & Surety Company, 387 So.2d 1340 (La.App.lst Cir. 1980). The totality of the evidence, both medical and lay, must be examined by the court in making its determination of whether to grant an award of workmen’s compensation benefits for disability. Simpson v. S. S. Kresge Company, 389 So.2d 65 (La.1980). We feel too much weight was accorded the few minutes of motion pictures showing an isolated scene during which plaintiff performed a very menial chore requiring no stress and little strength. Evidence in the form of moving pictures must be used with great caution because such pictures show only very brief intervals of the activities of the subject. They do not show rest periods, they do not reflect whether the subject is suffering pain, and they do not show the after-effects of the activities. Lambert v. Wolf’s, Inc., 132 So.2d 522 (La.App.3d Cir. 1961); Gagliano v. Boh Bros. Const. Co., 44 So.2d 732 (La.App.Orl. 1950). The finding of fact by the trial court is clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Certainly the weight of the clothes was not substantial nor was plaintiff in a bending position more than a few seconds. “Although on the surface it might appear that nothing could be more cogent and even dramatic refutation of a disability claim than motion pictures of claimant jacking up a car or playing tennis, the courts have rightly observed that such evidence must be used with great caution.” 2 Larson’s Workmen’s Compensation Law, Section 79.74, page 311. The intent of the movies was to discredit and refute plaintiff’s testimony, but we feel the movie’s content falls far short and the medical testimony substantiates plaintiff’s claim.

The insurer’s claims supervisor testified that plaintiff was paid disability benefits for eight weeks at $117.00 per week totaling $936.00 and $2,571.47 in medical payments. The claims supervisor testified that disability benefits were terminated when Dr. Thames released plaintiff to go back to work and also because of Dr. Soboloff’s examination.

Plaintiff urges that refusal to eon-tinue/reinstate compensation was arbitrary and capricious so as to warrant penalties. This is a factual determination which must be made upon the facts of each case. Here there was a legitimate reason for the defendant to terminate benefits after plaintiff was discharged by his first treating physician. We find no basis to conclude that the defendant was arbitrary and capricious.

The criteria to determine whether disability is temporary or permanent is claimant’s condition at the time of trial. LSA-R.S. 23:1221(1, 2) Carruth v. Louisiana Motor Inns, 389 So.2d 99 (La.App. 4th Cir. 1980). “A judgment for total permanent disability should be awarded when the claimant is shown to be totally disabled at the time of trial and the duration of such disability is indefinite or the evidence does not clearly indicate its duration.” Walker v. Gaines P. Wilson & Son, Inc., 340 So.2d 985 (La.1976); Wiley v. Southern Casualty Insurance Company, 380 So.2d 214 (La.App.3d Cir. 1980). At the trial Dr. Phillips testified plaintiff was clearly disabled and thus entitled to benefits under LSA-R.S. 23:1221(2).

For the foregoing reasons the Judgment of the District Court is hereby reversed and set aside.

DECREE

IT IS ORDERED that there be judgment in favor of Charles Glover and against Southern Pipe and Supply Co. and Chubb Pacific Indemnity Co., in solido, awarding workmen’s compensation benefits to Charles Glover at the rate of $117.00 per week commencing on May 16, 1980, subject to a credit for any benefits previously paid, plus legal interest on each weekly installment from due date until paid. Defendants are also ordered to pay all medical expenses due under the compensation law subject to a credit for amounts previously paid. Defendants are assessed all costs of this appeal.

REVERSED AND RENDERED.

GULOTTA, Judge,

concurring.

I concur.

Although the motion pictures were not devastating to plaintiff’s cause, they do raise questions as to the extent of his disability. Nonetheless, the medical evidence considered, I concur with the result that plaintiff was disabled at the time of trial. My concurrence is based upon the realization that, upon a medical showing of no further disability, payments may be discontinued under LSA-R.S. 23:1221(1) or (2).

      . Plaintiff was not aware of the films and requested that he be allowed to recall Dr. Phillips to explain plaintiffs movements on film. The trial judge denied the request. We feel plaintiff clearly had the right to rebut defendant’s evidence (C.C.P. art. 1632) and the right of cross-examination under C.C.P. art. 1634. In light of the great weight the trial judge gave to the films, his refusal to allow plaintiff to recall the doctor to rebut the films was possibly a denial of these rights. (See Launey v. Traders and General Insurance Company, 169 So.2d 757 (La.App.3d Cir. 1964) at p. 760.) Reggio v. La. Gas Service Co., 333 So.2d 395 (La.App.4th Cir. 1976) also implies plaintiff should have been allowed some opportunity to “cross-examine” the films.


author: ELLIS, Judge:

text:
    Ernestine Smith, Widow of Homer SMITH, v. Roy E. HURD, Sr., et al.
    No. 13890.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1981.
    Orlando G. Bendana, Wayne H. Carlton, Jr., New Orleans, for plaintiff-appellant.
    A. G. Seale, Baton Rouge, for Gulf Ins. Co.

      Charles W. Schmidt, III, New Orleans, for Industrial Ind. Co.
    Gordon F. Wilson, Jr., New Orleans, for St. Paul Fire.
    Leonard A. Young, New Orleans, for Fred Jacobs, et al.
    Thomas J. Wyllie, New Orleans, for Will-son Prod. Div.
    Paul B. Deal and Gerald Talbot, New Orleans, for Aetna C & S.
    Felicien P. Lozes, New Orleans, for Columbia Cas. Co.
    Bertrand M. Cass, Jr., New Orleans, for Continental Cas. Co.
    Michael A. Britt, New Orleans, for Roy-anne H. Blossman, et al.
    Before ELLIS, LOTTINGER and PONDER, JJ.
   ELLIS, Judge:

This is a suit by Ernestine P. Smith for damages arising out of the death of her husband Homer Smith. The suit was originally filed as a wrongful death action against Frank Bogran and others as executive officers and directors of Mississippi Valley Silica Company, Inc., Mr. Smith’s former employer. Other defendants are Willson Products Division of ESB, Inc., and various insurance companies. Subsequently, plaintiff amended her petition to allege a survivorship action against the same parties.

Peremptory exceptions of no cause and no right of action as to the wrongful death action were filed by all executive officers and their insurers, and exceptions of prescription were filed by all parties to the survivorship action. In reasons for judgment rendered after the hearing on the above exceptions, the trial judge sustained the exceptions as to the wrongful death action, but referred the exceptions of prescription to the merits because no evidence was before him. He further ordered plaintiff to amend her petition to allege that the injuries suffered by her deceased husband, for which she sought recompense in the survival action, were incurred prior to the amendment to R.S. 23:1032 which precluded executive officer actions.

Plaintiff then amended her petition to allege that all acts of negligence on the part of the defendants took place prior to October 2, 1976, and on a daily basis from 1969 through 1975, while plaintiff was employed by Mississippi Valley. Renewed exceptions of prescription were filed, alleging that Mr. Smith’s cause of action for his injuries had prescribed prior to his death.

After trial of the exceptions, judgment was rendered sustaining the exceptions as to all parties, and dismissing the survival action. Thereafter, judgments were signed dismissing the suit as to all executive officers and their insurers. From those judgments, plaintiff has appealed.

In this court, plaintiff assigns as error only the granting of the peremptory exceptions of no cause of action as to her wrongful death action. The exceptions of no cause of action are based on the language of R.S. 23:1032, as amended by Act 147 of 1976, which provides, in part, as follows:

“The rights and remedies herein granted to an employee or his dependent on account of an injury, or compensable sickness or disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights and remedies of such employee, his personal representatives, dependents, or relations, against his employer, or any principal or any officer, director, stockholder, partner or employee of such employer or principal, for said injury, or compensable sickness or disease.”

The allegations of the petitions filed herein, which we accept as true for purposes of these exceptions, are that Homer Smith was employed by Mississippi Valley Silica from 1969 through 1975; that during that time he was exposed on a daily basis to sand, silica dust and other dust particles; and that he died of silicosis and other pulmonary diseases as a result of his constant exposure thereto. His date of death is alleged to be March 28, 1977.

The basis of the exceptions is that, on the date of death of Homer Smith, when plaintiff’s wrongful death cause of action arose, tort suits against executive officers and stockholders of the employer company were prohibited by the express language of R.S. 23:1032, quoted supra.

Plaintiff claims that the exceptions were improperly sustained, arguing that her cause of action arose when Homer Smith’s injuries were inflicted, all of which took place prior to the enactment of Act 147 of 1976. Plaintiff’s reasoning is faulty. Her cause of action for the wrongful death of her husband could not arise prior to his death. When he died, after the effective date of Act 147 of 1976, executive officer suits were prohibited by the amendment. The exception was properly maintained.

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

AFFIRMED.


author: LOTTINGER, Judge.

text:
    Michelle R. ROGERS v. Irving F. ROGERS.
    No. 14083.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1981.
    John A. Exnicios, New Orleans, for plaintiff and appellee.
    Roger I. Dallam, Gretna, for defendant and appellant.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

This matter was remanded to this court “for reconsideration in light of Norsworthy v. Norsworthy, 404 So.2d 904, and Dedon v. Dedon, 404 So.2d 904.” When this matter was initially before this court we affirmed the trial court’s decision that military retirement benefits were community property. For a full statement of the facts see Rogers v. Rogers, 401 So.2d 406 (La.App. 1st Cir. 1981).

The Louisiana Supreme Court in Dedon v. Dedon and Norsworthy v. Norsworthy, 404 So.2d 904 (La.1981) following the decision of McCarty v. McCarty, - U.S. -, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981) held that military retirement benefits did not constitute community property. Therefore we are compelled to reverse the decision of the trial court.

We are still of the opinion that a notary must be appointed to effect a partition of all community assets in accordance with law.

Therefore, for the above and foregoing reasons, our original decision as it relates to the community nature of military retirement benefits is overruled and set aside, and the decision of the trial court as it relates thereto is reversed. In all other respects the original decision of this court is maintained except that the costs of the appeal are now taxed to appellee.

REVERSED AND REMANDED.


author: PONDER, Judge. LOTTINGER, Judge,

text:
    Bernie MILLET v. Caye NELSON, Colonial Penn Insurance Company, The Aetna Casualty and Surety Company, Blue Ridge Insurance Company.
    No. 14330.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1981.
    Robert H. Schmolke, Baton Rouge, for plaintiff-appellee, Bernie Millet.
    John W. Perry, Jr., Baton Rouge, for defendant-appellee, Aetna Cas. & Sur. Co.
    Charles W. Wilson, III, Baton Rouge, for defendants-appellants, Caye Nelson, Sr., and Blue Ridge Ins. Co.
    Arthur H. Andrews, Gracella Simmons, Baton Rouge, for Colonial Penn Ins. Co.
    Before ELLIS, LOTTINGER, EDWARDS, PONDER and COLE, JJ.
   PONDER, Judge.

Bernie Millet, an employee of Baton Rouge Ambulance Company, sued Caye Nelson; Blue Ridge Insurance Company, Nelson’s homeowner’s liability insurer; Colonial Penn Insurance Company, Nelson’s automobile liability insurer; and Aetna Casualty and Surety Company, the ambulance company’s automobile insurer. The latter company moved for summary judgment of dismissal on the basis that it was not an insurer of Nelson. Nelson, Blue Ridge and Colonial Penn appealed from the dismissal.

The issue is the scope of the permission granted to Nelson.

We affirm.

The Baton Rouge Ambulance Company dispatched an ambulance to the home of Caye Nelson, whose wife was the victim of a heart attack. Plaintiff, the attendant in the ambulance, refused to allow Mr. Nelson to ride in the rear of the ambulance with his wife because of his emotional condition; whereupon the driver of the ambulance allowed him to ride in the cab. En route to the hospital Nelson and the driver began an argument as to which hospital Mrs. Nelson would be taken to. For purposes of the motion for summary judgment the litigants agree that Mr. Nelson grabbed the steering wheel, causing the ambulance to swerve. The plaintiff was thrown from her chair and was seriously injured.

Aetna asserted and the trial court agreed that the permission granted to Nelson to ride in the cab, while a permission to use within the terms of its policy, did not include the grabbing of the steering wheel.

Appellants assert that the trial court erred in holding as a matter of law that the grabbing of the wheel did not constitute a use of the vehicle within the scope of the insured’s permission.

Both appellants and appellee agree that “there is no dispute as to material fact and the question here is purely one of law.” Appellants argue, however, that the test to determine whether the grabbing of the wheel was within the scope of the permission is one of foreseeability. Hughes v. Southeastern Fidelity Ins. Co., 340 So.2d 298 (La.1976); American Home Assurance Company v. Czarniecki, 255 La. 251, 230 So.2d 253 (1969). They assert that reasonable minds might disagree over that conclusion and therefore summary judgment is inappropriate.

We disagree. The facts were stipulated. Whether or not Nelson had permission to grab the steering wheel is a legal conclusion the court must arrive at from those stipulated facts, just as the lower courts reached a conclusion of contributory negligence and the Supreme Court agreed in Cates v. Beauregard Electric Cooperative, Inc., 328 So.2d 367 (La.1976).

The litigants have stipulated to the facts and have thoroughly and excellently briefed the law. It is our allotted task to arrive at legal conclusions on those facts and that law. If we are to refrain from making a decision under these circumstances because there may be some argument as to what the law is or should be, the use of summary judgment would be nonexistent or virtually so. The parties agree we have all the facts; they have presented us the law. We believe summary judgment is appropriate.

We agree, too, with the legal conclusion of the trial court. While there evidently have been no Louisiana cases to consider this point, we agree with the Illinois Court in State Farm Mutual Insurance Co. v. Larsen, 62 Ill.App.3d 1, 18 Ill.Dec. 582, 377 N.E.2d 1218 (1st Dist. 1978) when it said that the grabbing of a steering wheel exceeded the scope of permission to be a passenger. See also United States Fidelity & Guaranty Co. v. Hokanson, (1978), 2 Kan. App. 580, 584 P.2d 1264.

For these reasons the judgment is affirmed at appellants’ costs and the case is remanded for further proceedings.

AFFIRMED AND REMANDED.

LOTTINGER, J., dissents and assigns reasons.

ELLIS, C. J., dissents for reasons assigned by LOTTINGER, J.

LOTTINGER, Judge,

dissenting.

I respectfully dissent.

The majority does not dispute that “the test to determine whether the grabbing of the [steering] wheel was within the scope of the permission is one of foreseeability.”

In Cates v. Beauregard Electric Cooperative, Inc., 328 So.2d 367, 370 (La.1976), the Supreme Court held that “when the evidence submitted on the motion [for summary judgment] leaves no relevant, genuine issue of fact, and when reasonable minds must inevitably conclude that the mover is entitled to judgment on the facts before the court, the motion for summary judgment should be granted (C.C.P. 966), . . . . ” And in Morgan v. Matlack, Inc., 342 So.2d 167, 169 (La.1977), the Supreme Court amplified its statement in Cates by holding that “whether or not the nature of the permission granted in the instant case constituted a delegation of discretion to lend the car which, when exercised, amounted to permission from the named insured presents a genuine issue of material fact.” From this I conclude that though the parties may not differ as to the facts presented to the court, if they differ on the conclusion drawn from those facts, i.e. reasonable foreseeability, or if the law is not so clear that reasonable minds could not inevitably conclude the mover is entitled to judgment as a matter of law, then the motion for summary judgment must be denied.

The majority falls into error when it apparently concludes that only one legal conclusion can result from the facts stipulated.

      . It has been suggested that statistics might be available as to the frequency of the grabbing of steering wheels by distraught passengers. We have no such evidence before us and the mere possibility that such an issue could be raised is insufficient to defeat a summary judgment. Atkinson v. Allstate Ins. Co., 361 So.2d 32 (3d Cir. 1978).


author: CHIASSON, Judge.

text:
    SUCCESSION OF George HARRISON.
    No. 14359.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1981.
    Charles B. W. Palmer, Amite, for Dr. 1.1. Rosen, James Dyer, Charles Palmer.
    James Dukes, and Michael R. Tregle, Hammond, for James Harrison.
    Before CHIASSON, EDWARDS and LEAR, JJ.
   CHIASSON, Judge.

Defendants-appellants, Mr. James H. Dyer and I. I. Rosen, appeal an August 15, 1980 judgment setting aside an act of sale of succession property and ordering the return of said property to the Succession of George Harrison. The judgment appealed from was rendered pursuant to a motion for a judgment on the pleadings filed by the Executor of the succession, James M. Harrison.

Because we hold that the motion for judgment on the pleadings was improvidently granted and we are remanding the case to the trial court for further proceedings, we will not discuss the other issues presented by appellants in their appeal.

An action to set aside an authentic act of sale must be by a proceeding via ordinaria. Issue is joined in such a proceeding by answer or by the entry of a preliminary default. Ashy v. Cosmopolitan Credit & Investment Corporation, 365 So.2d 1171 (La.App. 3rd Cir. 1978).

A motion for judgment on the pleadings is provided for by Code of Civil Procedure, Article 965, which states in pertinent part, as follows:

“Any party may move for judgment on the pleadings after the answer is filed, .. .(Emphasis ours).

As seen, the mandates of the Code of Civil Procedure preclude the use of a motion for judgment on the pleadings when an answer has not been filed. We not only find no answer to plaintiff’s petition, but find there were exceptions filed and still pending when the judgment on the motion was rendered by the trial court.

For these reasons, the judgment of the trial court setting aside the act of sale on a motion for judgment on the pleadings is declared null and void and the case is remanded to the trial court for further proceedings consistent with this opinion.

Costs of this appeal are assessed against James M. Harrison.

JUDGMENT VOIDED AND CASE REMANDED.

      . The judgment of the trial court erroneously refers to the matter as coming up on a motion for summary judgment.


author: COVINGTON, Judge.

text:
    John W. OTZENBERGER, et al. v. ATLAS CONSTRUCTION COMPANY, et al.
    No. 14371.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1981.

      H. Alva Brumfield, and John Perry, Daniel Atkinson and Thomas Balhoff, Baton Rouge, for plaintiff.
    Robert J. Jones, Baton Rouge, Dept, of Transp. and Development (Dept, of Highways).
    Gerard M. Dillon, New Orleans, for Atlas Const. Co. and Highlands Ins. Co.
    Before COVINGTON, CHIASSON and COLE, JJ.
   COVINGTON, Judge.

John W. Otzenberger, individually and as natural tutor (administrator) of the estates of his minor daughters, Gina Victoria, Donna Lynn and Deborah Sue, filed suit against Atlas Construction Company, its public liability insurer, Highlands Insurance Company, and the State of Louisiana, through the Department of Highways, for his special damages and personal injuries to his daughters as a result of a one-car accident.

The suit against Atlas and its insurer was based on the allegations that the construction company was engaged in the reconstruction of the two-lane, generally North-South highway in question (Louisiana Highway 445), which was allegedly defective in ways that caused or contributed to the accident which resulted in the alleged damages and injuries. Motion for summary judgment was filed by Atlas and its insurer, supported by depositions and documents (including the pertinent specifications), asserting that the construction of the highway had been completed and it had been accepted by the Department prior to the accident and that the highway had been built according to the Department’s specifications. Prior to the trial, summary judgment was granted pursuant to this motion, and no appeal was taken; hence, the construction company and its insurer are no longer parties to the action.

The Department answered the suit and filed a third party demand against Otzen-berger, individually and as administrator of the estate of his minor child, Deborah Sue. The third party demand was opposed by Commercial Union Insurance Company, the insurer of Otzenberger, which alleged that it had compromised the claims of Gina and Donna in the amounts of $10,000.00 and $1,000.00 respectively. The opposition was referred to the merits.

The case was tried in the Twenty-first Judicial District Court for the Parish of Tangipahoa before Burrell J. Carter, Judge, who rendered judgment against the Department and in favor of Gina Otzenberger in the amount of $175,000.00; in favor of Donna Otzenberger in the amount of $13,500.00; and in favor of John Otzenberger in the amount of $5,898.80. The judgment also dismissed the third party demand of the Department. Although the judgment was silent as to the claim of Deborah, the trial court found her contributorily negligent and effectively denied her recovery. The Department suspensively appealed. Appel-lees answered the appeal, denying the liability of Deborah and complaining of the reduction of their award because of a settlement with Otzenberger’s insurer.

The accident occurred on November 27, 1975, on Louisiana 445 in Tangipahoa Parish, Louisiana. On that date, the Otzenber-gers had attended a family Thanksgiving dinner at the home of John Otzenberger’s mother-in-law in Madisonville, Louisiana. At about 4:30 p. m. the three Otzenberger minor children left Madisonville with Deborah, then 16 years old, driving the automobile of her boyfriend, Pat Bourgeois, in which her two sisters, Gina and Donna, were passengers in the back seat, and Bourgeois was in the front seat. As Deborah proceeded north on Highway 445, a road she had never driven before, she approached the intersection of Highway 445 with Highway 22, which formed a left banked curve. As she entered the curve, the wheels on the right side of the vehicle left the pavement onto the shoulder, causing her to spin out of control, cross the highway into a ditch on the west side of the highway and eventually to crash into a tree.

The evidence in the record establishes that the curve was not properly marked by warning signs. At the point of the accident the shoulder was significantly lower than the roadway (from four to six inches) and the shoulder surface was soft and muddy. In discussing the conditions of the roadway at the point of the accident, the trial judge stated:

“At the trial of this matter, numerous witnesses testified with respect to their observations of Highway 445, and it appears from the great weight of credible evidence that a defect did exist in the shoulder portion in that it was muddy and soft, and there was a drop-off from the paved roadway to the shoulder. ... “Taking into consideration all of the evidence adduced, the Court finds that plaintiff has proved by a preponderance of the evidence that a dangerous condition did exist in the drop-off from the paved portion of the highway to the shoulder, and, further, that the shoulders were in a defective state, either because they had not been finalized properly, or because there had been settlement of the ground below the shoulders which had not been repaired by the Department of Highways. These circumstances proximately caused the accident and give rise to liability on the part of the Department of Highways.”

This case presents the issue of whether a motorist who drives off the paved portion of a state highway onto the shoulder, and who thereby loses control of her vehicle due to the condition of the roadway and shoulder, is liable as a joint tortfeasor with the Department for injuries to her passengers. Thus, the question of the liability of the Department resulting from the condition of the roadway and shoulder is necessarily an issue, as is the negligence vel non of the motorist.

The Highway Department has the basic responsibility for the maintenance of State highways. LSA-R.S. 48:21,191. The Department is required to maintain the State’s highways in a reasonably safe condition for motorists exercising ordinary care and reasonable prudence. Although the Department is not an insurer of the safety of motorists using State highways, it can not knowingly allow a condition to exist which is hazardous to a reasonably prudent motorist. Laborde v. Louisiana Department of Highways, 300 So.2d 579 (La.App. 3 Cir. 1974), writ denied, 303 So.2d 182 (La.1974). Included within the Department’s duties is the maintenance of the shoulders of the highway in a reasonably safe condition. Rue v. State, Department of Highways, 372 So.2d 1197 (La.1979); Watson v. Morrison, 340 So.2d 588 (La.App. 1 Cir. 1976), writs denied, 341 So.2d 1134 (La.1977), 342 So.2d 218 (La.1977).

The evidence reveals that the dangerous condition of the shoulder existed at the time of the accident and that the Department had constructive knowledge of that condition. At the trial, a number of witnesses testified to the substantial drop-off and the muddy and soft condition of the shoulder. Anthony Notariano, who lived near the site of the accident, stated that there was a drop-off of from four to six inches between the surface of the highway and the shoulder, and that the shoulder was in a muddy, clayey, unfinished condition. Notariano knew that Department employees were working in the area at or around the time of the accident. There were no signs warning of the curve at the time of the accident. Notariano’s testimony was corroborated by other witnesses for plaintiffs. The testimony of defense witnesses did not rebut the testimony of Notariano and the other plaintiffs’ witnesses.

The trial court chose to believe the testimony of the plaintiffs’ witnesses. We can not say that he was clearly wrong; Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Further, when testimony is in conflict, reasonable evaluations of credibility and reasonable inferences of fact by the trier of facts should not be disturbed on appeal; Martin v. Feiber, 357 So.2d 5 (La.App. 1 Cir. 1977).

We find that the evidence in the instant ease fully establishes that the shoulder of the highway at the point of the accident was defective in that a substantial drop-off from the paved portion to the shoulder existed and that the shoulder was soft, muddy and hazardous.

The negligence of the Department in allowing such a hazardous condition to exist has been recognized in the cases of Sinitiere v. Lavergne, 391 So.2d 821 (La.1980), and Rue v. State, Department of Highways, supra. We agree with the trial judge’s conclusion that this hazardous condition was a proximate cause of the accident.

With respect to the requirement that the Department have actual or constructive knowledge of the condition of the shoulder, the evidence establishes that the Department had employees working in the area who had ample opportunity to observe the condition of the roadway and shoulder on frequent, if not daily, occasions. Moreover, these employees were aware that the recent completion of the shoulders would involve settling of the clayey material of the shoulders to such an extent that a significant drop-off would be caused. Such circumstances are tantamount to the requisite constructive knowledge, as the courts found in Harrison v. State, Department of Highways, 375 So.2d 169 (La.App. 2 Cir. 1979), and Robertson v. Handy, 354 So.2d 626 (La.App. 1 Cir. 1977), writ denied, 356 So.2d 434 (La.1978).

We thus hold that the record supports the trial court’s conclusion that the Highway Department was negligent in allowing such a dangerous condition to exist, which condition was a proximate cause of the accident in question.

Concerning the negligence or contributory negligence of Deborah Sue Otzen-berger, the driver of the vehicle involved in the accident, the evidence supports the trial court’s finding that Deborah failed to exercise the proper lookout and control of the car as she approached the curve on Highway 445. Under the circumstances, her actions do not constitute the type of “simple inadvertence” found by the court in Rue, supra. See Sinitiere v. Lavergne, supra. Sinitiere makes it clear that, under the circumstances of this ease, Deborah was negligent in her failure to control her vehicle in making her re-entry onto the roadway under the conditions then existing. Robertson v. Handy, supra.

Thus, we find, as did the trial court, that Deborah and the Department were joint tortfeasors. She is liable to the passengers, Gina and Donna, and is precluded from recovering damages for herself from the Department.

Also, as held in Sinitiere, supra, Deborah and the Department, both having been negligent in their actions and each having been a substantial cause of the accident herein, are solidary debtors. See Dixie Drive It Yourself System New Orleans Co. v. American Beverage Company, 242 La. 471, 137 So.2d 298 (1962).

The other significant issue raised on this appeal is the amount of the reduction in the award to which the Department is entitled due to the settlement or compromise between Commercial Union and Gina and Donna Otzenberger. The trial court held that although the settlement (release) prevented the Department from seeking contribution from a joint tortfeasor, the remedy provided by law in such cases is to reduce the award by one-half, which the trial court did. When a plaintiff releases one of two joint tortfeasors, the unreleased joint tortfeasor is effectively deprived of the right of contribution. Recognizing this, the case of Harvey v. Travelers Insurance Company, 163 So.2d 915 (La.App. 3 Cir. 1964), holds that the plaintiff in such a situation is only entitled to recover one-half of his damages from the unreleased tort-feasor. See Sibley v. Menard, 398 So.2d 590 (La.App. 1 Cir. 1980), writ denied, 400 So.2d 211 (La.1981).

The Department contends that its pro rata share of the award should be one-third instead of one-half, because the release in favor of Commercial Union operated to release both John Otzenberger and his daughter, Deborah. Such a contention is refuted by the holding of Cunningham v. Hardware Mutual Casualty Company, 228 So.2d 700 (La.App. 1 Cir. 1969), wherein it was recognized that contribution is computed on the number of tortfeasors; each is liable for his numerical pro rata share. See LSA-C.C. art. 2103. As decided above, there are the Department and Deborah Ot-zenberger as joint tortfeasors. There is no basis for finding that John Otzenberger was a joint tortfeasor. His only involvement in the accident is that he is the father of a minor daughter who was the driver of the offending vehicle. Mr. Otzenberger had no relationship with the vehicle involved; it was owned by Pat Bourgeois, the boyfriend of Deborah. He is not solidarily liable with his daughter, Deborah Sue Otzenberger. Wooten v. Wimberly, 272 So.2d 303 (La.1972). Hence, reduction of plaintiffs’ recovery is correctly computed at one-half by virtue of the release of Commercial Union, not two-thirds as contended by the Department. See also Tabb v. Norred, 277 So.2d 223 (La.App. 3 Cir. 1973), writ denied, 279 So.2d 694 (La.1973).

The Department has also raised the issue of the effect of the granting of the summary judgment in favor of Atlas Construction and its insurer on the matter of contribution and reduction of the award. It is asserted by the Department that since Mr. Otzenberger originally sued Atlas and its insurer, alleging negligence of Atlas, but then did not oppose the granting of the summary judgment, he in effect voluntarily released them from the lawsuit. This argument is without merit. The law, not Mr. Otzenberger, gave the Otzenbergers no claim and caused the suit against Atlas to be dismissed. See Gayle v. Department of Highways, 205 So.2d 775 (La.App. 1 Cir. 1967), writ refused, 251 La. 932, 933, 934, 207 So.2d 538, 539 (1968). There was no release by Otzenberger which prevented the Department from pursuing any claim against Atlas. The granting of the summary judgment against Otzenberger in favor of Atlas in no way prejudiced the Department’s rights. If the Department had a claim against Atlas (which the evidence shows it did not), it should have pursued it.

The Department further contends that John Otzenberger, as father of the minor children involved in this case, is barred from recovery of his special damages. We agree. In Fontenot v. Pan American Fire & Casualty Company, 209 So.2d 105 (La.App. 3 Cir. 1963), writ refused, 252 La. 460, 211 So.2d 328 (1968), the negligence of the minor child driving the vehicle involved was imputed to the father so as to bar his recovery individually for special damages, even as to those damages incurred as a result of injuries to children not negligently causing the accident. See also Gaudet v. G. D. C., Inc., 383 So.2d 1289 (La.App. 1 Cir. 1980), writ denied, 385 So.2d 256 (La.1980). Consequently, the judgment is amended to delete the award in favor of John Otzenberger, “as tutor of Gina and Donna Otzenberger” (actually, in his individual capacity), in the amount of $5,898.80, with legal interest, and to deny him recovery for his damages.

For the reasons herein set out, the judgment appealed is amended, and as amended it is affirmed; costs of this appeal in the amount of $2,203.88 is to be paid by the defendant-appellant, State (the Department).

AMENDED AND AFFIRMED.

      . Our attention has been directed to the case entitled “Dr. Lawrence J. Kern, Jr. Individually and On Behalf of His Minor Daughter, Kevin Kern versus Travelers Insurance Company, et al.”, No. 12053 on the docket of the Court of Appeal, Fourth Circuit, 407 So.2d 2. We find the Kem case distinguishable in that in that case the minor was operating the father’s vehicle with his consent, while in the instant case the minor was not operating her father’s automobile. Moreover, we consider Wooten v. Wimberly, 272 So.2d 303 (La.1972), which was decided by our Supreme Court, to be the controlling law. Wooten does not merely rely upon Cox v. Shreveport Packing Co., 213 La. 53, 34 So.2d 373 (1948), for its conclusion that the tort action did not create a solidary obligation between father and child, as the Kern opinion suggests. The Wooten Court made a careful analysis of the father’s responsibility under LSA-C.C. art. 2318 and decided that the liability of the father-child relationship is not characterized as solidary. It is not for us to conjecture how the Supreme Court will decide this issue in the event it is again presented to that Court. The imposed responsibility of the parent under LSA-C.C. arts. 2317 and 2318 is liability without fault. The liability of the child in such cases is based on negligence (fault). The father is not a joint tortfeasor. He is obligated in a different manner from the perpetrator of the offense (the author of the injury).


author: EDWARDS, Judge.

text:
    BATON ROUGE GENERAL HOSPITAL v. Phebus N. HOTARD and Katherine Hotard.
    No. 14426.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1981.
    George K. Anding, Baton Rouge, for plaintiff-appellee Baton Rouge General Hospital.
    Walker P. MacMurdo, Baton Rouge, for defendants-appellants Phebus N. Hotard and Katherine Hotard.
    Before CHIASSON, EDWARDS and LEAR, JJ.
   EDWARDS, Judge.

This is a suit by Baton Rouge General Hospital for a debt allegedly owed by the husband of a former patient. From a judgment in favor of plaintiff, defendant has appealed. We affirm. The defendant in this case is Phebus N. Hotard. On April 16, 1976, his wife, Katherine Hotard, was admitted to the Chemical Dependency Unit of the Baton Rouge General Hospital. When Mrs. Hotard was released the hospital’s bill totaled $2,779.15. Mr. Hotard’s insurer paid $1,654.15, leaving a balance due of $1,125.00.

After efforts to collect this amount proved unsuccessful, Baton Rouge General filed suit against Phebus and Katherine Ho-tard. A preliminary default judgment was entered against Katherine Hotard and was later confirmed and made final by the district court. Phebus Hotard filed an answer to plaintiff’s petition. He alleged that his wife’s stay in the Chemical Dependency Unit was without his consent and therefore the debt was not a community obligation. Phebus Hotard also filed a reconventional demand against Baton Rouge General in which he alleged that the hospital had engaged in illegal collection methods.

The trial court concluded that the debt owed to the hospital was a community debt and rendered judgment in favor of plaintiff in the amount of $1,125.00 plus legal interest from the date of judicial demand until paid. Defendant has taken a suspensive appeal from the judgment of the district court.

Defendant asserts that the trial court erred in finding that the debt was a community debt. Appellant contends that he orally agreed to his wife’s admission to the hospital only upon the condition that certain members of his wife’s family not be allowed to visit her. Mr. Hotard testified at trial that he felt that these people were trying to break up his marriage. Mr. Ho-tard encountered his wife’s sister and other members of her family at the hospital on one occasion while his wife was staying there and an argument and altercation ensued. Appellant testified that after the disturbance at the hospital, he was told that he could not come back to see his wife. He then requested that she be discharged since the hospital had broken its agreement not to allow visits from her family. He was informed that no patient could be released without a doctor’s order. Mr. Hotard testified that he then went to the office of Dr. Van Saye, the doctor that he thought might have admitted Mrs. Hotard to the hospital. Dr. Saye told him that he did not remember admitting Mrs. Hotard, but that if he did he would call the Chemical Dependency Unit and tell them to release her. Mr. Hotard testified that Dr. Saye did call and requested Mrs. Hotard’s release.

Appellant asserts that the trial court erred in finding the debt to be a community obligation. He relies on LSA-C.C. art. 1786 which provides, in pertinent part, as follows:

“The authorization of the husband to the commercial contracts of the wife is presumed by law, if he permits her to trade in her own name; to her contracts for necessaries for herself and family, where he does not himself provide them; and to all her other contracts, when he is himself a party to them.”

Appellant contends that he had never failed or refused to furnish necessary medical treatment to his wife and therefore she did not have .the authority to bind the community.

The trial court did not err in finding that the amount owed the hospital was a community debt. In this case there is no need to rely on LSA-C.C. art. 1786 as authority for the wife to bind the community, because the evidence is undisputed that Mr. Hotard personally contracted with Baton Rouge General for his wife’s treatment at the Chemical Dependency Unit. Mr. Hotard testified that he went to the hospital and made arrangements for his wife’s admission. However, he asserted that his agreement to have her admitted was based on the condition that her relatives not be allowed to visit.

Linda Alumbaugh, treatment director of the Chemical Dependency Unit, testified at trial. Alumbaugh was employed as director of nurses at the Chemical Dependency Unit during Mrs. Hotard’s treatment. She testified that Mrs. Hotard was accompanied by her husband at the time of her admission. Alumbaugh testified that Mr. Hotard was told at the time that the Chemical Dependency Unit would not agree to the restrictions which he sought to impose on his wife’s visitors. She further testified that Mrs. Hotard was admitted after Mr. Hotard was told that his conditions would not be agreed to.

It is the function of a trial court to resolve questions of the credibility of witnesses. An appellate court must give great weight to a trial court’s factual conclusions based upon its determination of credibility. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Aleman v. Favret Co., Inc., 349 So.2d 262 (La.1977); Canter v. Koehring Co., 283 So.2d 716 (La.1973). In this instance, the trial judge apparently chose not to believe Mr. Hotard’s claim that his wife was admitted subject to his conditions. Such a finding is not manifestly erroneous.

The trial court was correct in finding that Mr. Hotard was personally liable for the hospital bill. He incurred personal liability by accompanying his wife at the time of her admission and making arrangements for her admission with the hospital. Thus, we find it unnecessary to discuss plaintiff’s argument relative to the wife’s authority to bind the community for necessaries which the husband does not provide.

For the foregoing reasons, the judgment of the district court is affirmed. Costs of this appeal are assessed against defendant-appellant, Phebus N. Hotard.

AFFIRMED.

      . On March 18, 1977, Phebus Hotard was granted a judgment of separation from bed and board on his petition which was filed May 24, 1976.

      . The judgment signed by the trial judge makes no mention of the disposition of the plaintiffs reconventional demand, although, in his oral reasons for judgment, the trial judge indicated that the reconventional demand would be dismissed.

      . In his deposition, Dr. Saye testified that he was unable to recall making such a phone call.

      . LSA-C.C. art. 1786 was repealed by Act No. 709 of 1979. However, the facts of this case arose in 1976, well before the effective date of that Act.


author: PONDER, Judge.

text:
    UNION LOCAL P-1476 OF the AMALGAMATED MEATCUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA and Sidney Usey v. UNION CITIZENS CLUB OF TERREBONNE PARISH.
    No. 14432.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1981.

      M. H. Gertler, New Orleans, for plaintiffs and appellants.
    Anderson Council, Kenner, for defendant and appellee.
    Before ELLIS, LOTTINGER and PONDER. JJ.
   PONDER, Judge.

Plaintiff appealed from a judgment finding defendant the owner of disputed property in this petitory action.

The issue is the application of the “alter ego” theory and agency principles to the defendant, who is record owner of the property in question.

We affirm.

When Amalgamated Meatcutters and Butcher Workmen of America was granted a charter in 1954, the membership of the union consisted only of workers from the Southdown Sugar Refinery in Terrebonne Parish. In 1960, the members of the union organized and incorporated the Union Citizen’s Club (U.C.C.), a non-profit corporation, without capital stock, with the purpose of improving and encouraging community progress in Terrebonne Parish. There was some conflicting testimony as to whether the U.C.C. was formed either to buy property for the union to build a meeting hall or to provide for the members from South-down Refinery in case the union would leave the parish.

An extra dollar was collected in the monthly union dues check-off and transferred to the U.C.C. account as dues. The U.C.C. used the money to buy rental property. In 1966 pursuant to a U.C.C. resolution, the U.C.C. purchased the property involved in this suit. After the rent began coming in and the union dues began to rise, the U.C.C. dues were reduced and eventually discontinued. There is some conflict over whether Southdown Refinery was the only plant to deduct and pay the U.C.C. dues.

The U.C.C. initially met after regular union meetings. Later, however, all matters concerning U.C.C. property and bank accounts were taken care of at the union meeting. The minutes of the union met-ings from February, 1969 to February, 1978, indicate that a financial report of the union’s accounts and the U.C.C.’s accounts were given at the meetings. The officers of the union also served as the officers of the U.C.C.

After the U.C.C. was formed, employees of other refineries began to join Local-1476. When the Southdown Refinery closed in 1978, the Local no longer existed in Terre-bonne Parish. U.C.C. meetings were again separately held by former Southdown employees. New operational guidelines were established.

The audit reports of the Local-1476 for the period of 1970 to 1977 listed the property in question and the U.C.C. bank account as assets. Bond questionnaires for the Local-1476 also listed the property as an asset of the union with title in the U.C.C. The trial court held that the Local and the U.C.C. did not have identical memberships, had separate bank accounts and separate minutes and had held separate meetings except for a four year period. The U.C.C. was found to be a corporate entity separate from the Local and the title owner of the property in question.

Plaintiff argues that the interests of justice require the application of the “alter ego” theory so as to disregard the corporate entity of the U.C.C. on the basis that the U.C.C. was not conducted as a separate entity. We disagree.

A corporation is a distinct entity from all the members who compose it. Louisiana Civil Code Article 435. The estates and rights of a corporation belong exclusively to the corporation and not to its members. Louisiana Civil Code Article 436.

However, when the members fail to conduct a corporation on a separate footing, the court may ignore the corporate entity and hold individual members liable to third parties. In such a situation, the corporation is referred to as the “alter ego” of its members. Kingsman Enterprises v. Bakerfield Elec. Co., 339 So.2d 1280 (1st Cir. 1976).

The corporate concept plays a beneficial role and should be disregarded only in exceptional circumstances. Johnson v. Kinchen, 160 So.2d 296 (1st Cir. 1964). Plaintiff has not cited a case in which the alleged members of a corporation used the theory to be recognized as owners of property listed in the corporate name. We will not expand the “alter ego” theory to cover the present factual situation.

In the alternative, the plaintiff alleges that the U.C.C. acted only as an agent of the Local-1476 in the purchase and maintenance of the property and must return it pursuant to Louisiana Civil Code Article 3005.

Plaintiff cites Bolding v. Eason Oil Company, 170 So.2d 883 (4th Cir. 1965), affirmed 248 La. 269, 178 So.2d 246, in which corporate minutes were introduced to show that the title owner of the property in question held the property for the corporation. The written minutes, which the court treated as a counter letter, contained a resolution which specifically stated that the title owner would hold the property “in fact only for this corporation.”

There is no evidence of a union resolution which provided that the U.C.C. held the property for the union. There is no written evidence that could be construed as a counter letter. The U.C.C. purchased the property in its own name, rather than in the name of the union, and under the authority of a resolution passed by the U.C.C.

The trial judge must have concluded that the U.C.C. was formed to provide for the Southdown Refinery workers and that they were the only ones who paid dues to the U.C.C. We do not find these factual findings to be manifestly erroneous. Canter v. Koehring Company, 283 So.2d 716 (La.1973); Arceneaux v. Dominque, 365 So.2d 1330 (La.1978).

For these reasons, we affirm the trial court’s judgment at the appellant’s cost.

AFFIRMED.

      . La.Civil Code Art. 435:
      “Corporations are intellectual beings, different and distinct from all the persons who compose them.”

      . La.Civil Code Art. 436:
      “The estate and rights of a corporation belong so completely to the body, that none of the individuals who compose it, can dispose of any part of them.
      In this respect the thing belonging to a body, is very different from a thing which is common to several individuals, as respects the share which every one has in the partnership which exists between them.”

      .La.Civil Code Art. 3005:
      “He is bound to restore to his principal whatever he has received by virtue of his procuration, even should he have received it unduly.”


text:
    Jack R. GOLDBERG, Elinor R. Goldberg v. Richard E. RUCKSTUHL, Sr., Richard E. Ruckstuhl, Jr., Brenda Elliott.
    No. 14435.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1981.
    Jack R. Goldberg, in pro per.
    Brenda Elliott, in pro per.
    David Poynter, Baton Rouge, for defendants-appellees.
    Before ELLIS, LOTTINGER and PONDER, JJ.
   PONDER, Judge.

Plaintiffs appealed the dismissal of their suit seeking reimbursement of veterinary expenses for treatment' of their pet poodle after it was attacked by dogs belonging to two defendants.

The sole issue is the assumption of risk by plaintiffs.

We reverse and render.

Plaintiffs left their small poodle in the care of a neighbor when they left on vacation. While the poodle was outside, admittedly with knowledge of the neighbor in charge and admittedly unleashed and unattended, but still on plaintiffs’ property, a dog belonging to each of the remaining defendants attacked and inflicted serious wounds on the poodle.

The lower court found that defendants’ control was “wanting” under Civil Code Article 2321 but denied liability because plaintiffs had assumed the risk by allowing the dog to be outside.

We agree that defendants’ conduct was wanting under Civil Code Article 2321. Holland v. Buckley, 305 So.2d 113 (La.1974).

We disagree that plaintiffs assumed the risk.

In the first place, there was no plea of assumption of risk, an affirmative defense. La.C.Civ.P. Art. 1005.

But even if it be found that the pleadings were enlarged by the evidence, we do not believe the defense is viable. Under Dorry v. Lafleur, 399 So.2d 559 (La.1981), the risk must be knowingly assumed, and the knowledge is subjective. There is no evidence that plaintiffs or their agent had any knowledge of any risk of their pet being mauled by other dogs. We therefore believe that the trial court erred.

There was no issue raised as to the amount of the veterinary bill of $294.75.

For these reasons the judgment is reversed and there is now judgment in favor of the plaintiffs, Jack R. and Elinor R. Goldberg, and against the defendants Richard E. Ruckstuhl, Jr., and Brenda Elliott, in solido, in the amount of $294.75, plus legal interest thereon from date of judicial demand until paid. All costs are assessed to the defendants.

REVERSED AND RENDERED.

      . The dismissal of a third defendant on a directed verdict was not appealed.

      . We express doubt on that point too. Any evidence supporting the assumption of risk would, we believe, be admissible on other grounds.


text:
    W. A. LAWRENCE, d/b/a W. A. Lawrence Drafting Service v. P. A. CHERRY.
    No. 14436.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1981.
    Donna W. Lee, Baton Rouge, for plaintiff/first appellant.
    Lee Herrington, Baton Rouge, for defendant/second appellant.
    Before ELLIS, LOTTINGER and PONDER, JJ.
   ELLIS, Judge:

This is a suit by W. A. Lawrence, doing business as W. A. Lawrence Drafting Service, against P. A. Cherry for $579.80 allegedly due for drafting services rendered. After trial on the merits, judgment was rendered in favor of plaintiff for $277.26, plus interest and 25% attorney’s fees. Both parties have appealed.

Louis Ravasio, plaintiff’s office manager in charge of house plans, was the only witness for plaintiff. He testified that on February 2, 1979, Mr. Cherry had come to the office to have a set of plans drawn. He further testified that Mr. Cherry and Mr. Lawrence had discussed the matter before an order was placed, but that he was not a witness to their discussions. The plans were completed on February 12, 1979, and Mr. Ravasio tried to get in touch with Mr. Cherry several times, but was unable to do so. Mr. Cherry never came in to pick up the plans. Mr. Ravasio testified that during the period when the plans were being prepared, Mr. Cherry had called once to see if they were ready. Mr. Ravasio further stated that the set fee for preparing plans was 12 cents per square foot under roof, and that the total price of the plans was $579.80.

Mr. Cherry testified that he usually drew his own plans but that he needed this set of plans in a hurry, within 10 days. He arranged with Mr. Lawrence to do the work for a price of six cents per square foot, and told Mr. Lawrence when he had to have the plans. He said he called plaintiff a number of times during the next 10 days to see if the plans were ready, including the tenth day, and was told that they were not yet ready. His financing then fell through, and he had no further use for the plans. The plans showed the total area of the house to be 4,621 square feet.

The trial judge found that defendant was liable to plaintiff for the plans, but at the rate of six cents per square foot.

In this court, plaintiff claims that the trial judge erred in not awarding the full amount sued for. Defendant alleges that the court should have made no award, or, alternatively, that attorney’s fees should not have been awarded.

Since defendant neither appealed nor answered the appeal, he is not entitled to have the judgment modified in any respect, and his requests must be denied.

Plaintiff’s contentions are without merit. The trial judge accepted Mr. Cherry’s testimony that he had a specific agreement for the work to be done at the rate of six cents per square foot. Mr. Ravasio was not a party to the agreement, and could only testify as to the usual rate for such work. We find no manifest error in the decision of the trial judge to accept Mr. Cherry’s unrebut-ted testimony as to his agreement.

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

AFFIRMED.