author: STOKER, Judge.

text:
    Francis J. NORMAN, Plaintiff-Appellant, v. Solonge E. SORREL et al., Defendants-Appellees.
    No. 7805.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1980.
    Rehearing Denied Jan. 2, 1981.

      Roy & Forrest, David Kaufman, New Iberia, for plaintiff-appellant.
    Burton E. Cestia, Jr., New Iberia, Davidson, Meaux, Sonnier & Roy, J. J. Davidson, III, Voorhies & Labbe, W. Gerald Gaudet, Lafayette, Caffery, Oubre, Gibbens & Blackwell, J. Louis Gibbens, New Iberia, Allen, Gooch & Bourgeois, Joel E. Gooch, Pugh & Boudreaux, Donlon Pugh, Lafayette, for defendants-appellees.
    Before DOMENGEAUX, GUIDRY and STOKER, JJ.
   STOKER, Judge.

The plaintiff-appellant, Francis J. Norman, brought this suit to recover damages sustained as a result of a fall from a scaffold where he was performing work as an electrical helper, against the defendant-ap-pellee, Ronald J. Fremin, and several other defendants who are not before this court on appeal. The trial court granted a summary judgment in favor of the defendant-appel-lee dismissing the plaintiff’s demand against him. From this judgment, the plaintiff-appellant appeals. We affirm.

The sole issue for our review is whether, based on the pleadings, depositions, and other evidence filed by the parties, a genuine issue of material fact was presented, and whether Fremin is entitled to a judgment as a matter of law.

The plaintiff’s injuries resulted when the leg of the scaffold he was working on fell into an unguarded drain hole in the work site floor, causing the scaffold to topple and the plaintiff to fall.

The hole was located in a concrete slab that the defendant, a concrete contractor, poured about a year before the plaintiff’s fall. The slab was poured pursuant to specifications of Klein-Deco (owner of the building) which called for two, two-inch drain pipes to be located in the middle of each half of the slab. The drain pipes were installed by Klein-Deco. When the slab was poured, the drain pipes extended eight to twelve inches above the concrete so that the concrete would not plug up the pipe.

The plaintiff contends that the defendant cut the pipe flush with the concrete creating a hazardous condition. The defendant denies cutting the pipe and contends the pipe was cut by the owner of the building, Klein-Deco.

It is well settled that a motion for summary judgment should be granted if, and only if, the pleadings, depositions, answers to interrogatories, admissions on file, together with the affidavits, if any, show that there is no genuine issue as to a material fact, and that mover is entitled to a judgment as a matter of law. LSA-C.C.P. art. 966, Chaisson v. Domingue, 372 So.2d 1225 (La.1979).

The plaintiff contends that there is a genuine issue as to whether or not the defendant cut the pipe flush with the concrete creating a hazardous condition. However, the affidavit and deposition of the defendant show that he left the pipe protruding eight to ten inches above the concrete. The plaintiff contends that this is controverted by the deposition of Perry De-cuir, Klein-Deco’s employee in charge of the construction. We think plaintiff has misconstrued Decuir’s testimony. Decuir stated that the pipes were cut flush with the floor but fails to state who cut them. The plaintiff relies heavily on the following testimony by Decuir.

“Q. All right. At the time that the Sorrel crew came out there to do the work, had you cut away the pipe?
A. The pipe was flush.
Q. The pipe was then flush?
A. Flush with the concrete.
Q. The pipe was never left protruding above the concrete?
A. No.”

Since the Sorrel crew did not begin work until a year after the foundation was laid, it is clear that Decuir was referring to the condition of the floor at the time of the plaintiff’s fall and not at the time the slab was poured by the defendant. There is nothing in the deposition to show that the defendant cut the pipe. Nevertheless, if the question of who cut the pipes was determinative of liability in this case we might be inclined to hold that summary judgment was inappropriate. We do not consider the question of whether or not the defendant Fremin cut the pipe as being material or pertinent to the issue of Fremin’s liability. It is not a material issue of fact here for the purpose of considering the applicability of disposition by summary judgment.

For the purpose of argument we will assume that Fremin did cut the pipes flush with the concrete surface. The owner of the building was evidently taking its time in erecting the building for which the slab was poured and finished. Presumably the pipes should have been cut flush with the concrete slab floor at some time in order to function as drains. Defendant Fremin was merely a concrete contractor. Assuming that Fremin owed a duty to plaintiff or any other worker on the premises to cover the drain holes upon completion of the slab and upon the cutting of the pipes, it hardly seems reasonable to hold that such a duty persisted for over a year afterwards. The structure of which the slab constituted a part was in various phases of construction after laying of the slab and the structure was incomplete at the time of plaintiff’s accident. Plaintiff himself was engaged in a phase of construction of the building.

To begin with we think it is manifest that during construction some hazards will of necessity exist which must be tolerated but which the owner or builder will have a duty to correct before the building is considered complete. Construction workers must expect such hazards to exist and should be aware of them and avoid them. More important, however, in our opinion is the question of time. We are of the opinion that any duty Fremin may have had to cover the drain holes initially could not have persisted for over a year. Certainly it was the owner’s ultimate duty to provide the permanent drain grates or such protective devices as it chose to employ. Moreover, the owner-builder had the overall duty to provide a safe place to work and protect others who might work on the building. In any event, after the passage of a reasonable amount of time, any duty Fremin might have owed to guard the drain holes would cease, and it would become the sole duty of the owner-builder to discharge whatever duty might be required. In making these observations, we do not intend to express any opinion in this case as to what duty anyone may have owed including any duties of the owner-builder, Klein-Deco may have owed. We simply hold that if defendant ever owed a duty, the breach of which caused plaintiff’s accident and injury, the duty came to an end before the accident occurred.

We have considered the principles of law set forth in the cases cited by plaintiff-appellant. Plaintiff cites Johnson v. Fred H. Moran Construction Company, 289 So.2d 323 (La.App. 1st Cir. 1973), writ refused, 293 So.2d 171 (La.1974) for the proposition that “there is a duty on the part of the subcontractor to refrain from creating a potential danger or to permit an unsafe condition to remain on the premises upon which such subcontractor is working where it is known that the premises are in use by either the general public or employees of the owner.” While we might agree with that pronouncement of our brothers of the Court of Appeal for the First Circuit as a general proposition, such a broad statement of duty must be tempered in its application by reference to the peculiar circumstances of any given case. In the Johnson case renovations were in progress on a hospital. A subcontractor of the general contractor on the renovation work left mud on a sidewalk in front of the hospital. The sidewalk was used by the public and hospital employees. An employee of the hospital credit department slipped on the mud left by the subcontractor. The accident in question occurred on the same day the mud was deposited by the subcontractor’s truck. The mud was left on the public sidewalk while it was in current use. The facts of the Johnson case distinguish it from the case before us.

Plaintiff-appellant relies on another First Circuit case, Ortego v. State Bank & Trust Company of Golden Meadow, 316 So.2d 826 (La.App. 1st Cir. 1975), for the proposition that cases of this type present a question of fact and “a contractor can be held responsible only if he has justifiable reason to believe that adherence to plans and specifications would create a hazardous condition.” A consideration of the facts of the Ortego case does not lead us to conclude that it lends support to plaintiff-appellant’s claim of error in the granting of the motion for summary judgment in the case before us.

The plaintiff in the instant case has made no showing that there exists a genuine issue of material fact. Therefore, the defendant-appellee’s motion for summary judgment was properly granted.

For the above and foregoing reasons, the judgment of the trial court granting a summary judgment in favor of the defendant-appellee is affirmed. All costs are assessed against the plaintiff-appellant.

AFFIRMED.


source: Caselaw Access Project

author: DOUCET, Judge.

license: Public Domain

text:
    Ernest MORGAN et al., Plaintiffs and Appellants, v. HARTFORD ACCIDENT AND INDEMNITY COMPANY et al., Defendants and Appellees.
    No. 7829.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1980.
    Rehearing Denied Jan. 2, 1981.
    Thomas & Dunahoe, G. F. Thomas, Jr., Natchitoches, for plaintiffs-appellants.
    Watson, Murchison, Crews, Arthur & Corkern, William P. Crews, Jr., Natchitoch-es, for defendants-appellees.
    Before FORET, DOUCET and LA-BORDE, JJ.
   DOUCET, Judge.

This is a wrongful death and survival action, which was brought by four of the five surviving children of Mrs. Jessie Ann Vinson Morgan, who died on April 21,1977, following a fall at the Westwind Mission of the Westside Baptist Church of Natchitoch-es, Louisiana. Plaintiffs alleged that Mrs. Morgan broke her hip when she fell and that she died of complications after undergoing surgery to repair it. They named as defendants the church and its insurer, Hartford Accident & Indemnity Company. Following a trial, the district court rendered judgment in favor of the defendants, dismissing plaintiffs’ suit. Plaintiffs appeal.

The evidence shows that on April 17, 1977, Mrs. Morgan attended a worship service at the Westwind Mission of the West-side Baptist Church. The mission facility, which was formerly a hunting lodge, is located near Campti in Natchitoches Parish. After the service had ended, Mrs. Morgan walked down a long hall to the ladies’ restroom. A door at the end of the corridor opens into a cloak or gown room, which provides access to the restrooms. The floor in the cloak room is eight inches lower than the floor in the hall. Mrs. Morgan apparently did not notice the drop, which caused her to trip and fall.

Plaintiffs alleged in their petition that Mrs. Morgan’s injuries and death were the result of the church’s having failed to properly maintain the building by (a) failing to maintain warning signs to advise those on the premises of the drop in the floor level, (b) failing to maintain proper lighting at the place where the floor level changed, and (c) maintaining a trap in the form of a sudden, unmarked and unlighted drop in the floor level. At the trial, they presented the testimony of Mr. Robert E. Smith, a certified architect, who said that the drop did not conform to safety standards set down by the National Fire Protection Association. Upon examining the site of the accident, he found that although the lighting was adequate, the drop was too near the door into the cloak room, and it exceeded the recommended six inch maximum. Mr. Smith also felt that the color or texture of the floors in the two rooms should have been contrasted to call attention to the change in levels.

The trial judge found that despite the fact that the building, which was constructed long ago, did not conform to the most current architectural design standards, the drop was visible, and it did not constitute a trap. He noted that between the time that services were first held in the church in January of 1976 and the time of the accident, 5,000 to 7,500 people had used the facilities without incident. He concluded that the tragic accident had resulted from the fact that Mrs. Morgan, who was elderly but self-sufficient and possessed of reasonably good eyesight, had negligently failed to maintain a proper lookout.

On appeal, plaintiffs argue that the trial judge erred by relying on general rules of negligence under LSA-C.C. Art. 2315, rather than on the principles of legal fault under LSA-C.C. Arts. 2317, 2318, 2320, 2321, and 2322, as construed by the Louisiana Supreme Court in Loescher v. Parr, 324 So.2d 441 (La.1975). We find no merit in that argument. Although the trial judge did not specifically mention Loescher and its progeny in his written reasons for judgment, he clearly found that the drop in the floor level did not constitute a trap or defect in the building. • As counsel for plaintiffs acknowledges in his brief, a finding that the building contains a defect, which creates an unreasonable risk of harm to others, is essential for the principles of legal fault to apply. Rappattoni v. Commercial Union Assurance Company, 378 So.2d 953 (La.App.3rd Cir. 1979).

After carefully reviewing the evidence in the record, we cannot say that the trial judge was clearly wrong in finding that the building was not defective. Thus, we find no error in his conclusion that the defendants are not. liable either under the theory of negligence, which is set out in plaintiffs’ brief, or under the theory of legal fault, which they now urge.

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

AFFIRMED.

FORET, J., dissents.


author: FORET, Judge.

text:
    Michael CHANEY, Plaintiff-Appellee, v. OUR LADY OF FATIMA CATHOLIC CHURCH et al., Defendants-Appellants.
    No. 7846.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1980.

      Voorhies & Labbe, E. Gregory Voorhies, Lafayette, for defendants-appellants.
    Robert E. Keaty, New Orleans, for plaintiff-appellee.
    Before FORET, DOUCET and LA-BORDE, JJ.
   FORET, Judge.

This is an action ex delicto. The corporation of Our Lady of Fatima Catholic Church (Fatima) and its primary automobile liability insurer, Reliance Insurance Company (Reliance), are made defendants. The plaintiff, Michael Chaney, is seeking to recover damages for personal injuries received in a collision between a motorcycle driven by him and a pickup truck owned by the defendant Fatima, which was being driven by one of its employees, Darren Sharlow, who was not made a defendant to this suit. The action was tried before a jury which returned the following verdict in favor of the plaintiff:

Wo, the jury, find in favor of the plaintiff and against the defendants, and assess damages in the following amounts:
1. Mental and physical pain and suffering, past and future 'i OP O_
2. Loss of oarnings/impairmont of earning capacity
a) Loss of past earnings IZZii_
b) Loss of future earnings j phj ó¿>0
3. Permanent disability
4. Medical expenses £,qo.0-
Lafayette, Louisiana, this J.l__ day of December,

The trial court rendered judgment pursuant to this verdict and awarded plaintiff the sums assessed by the jury. The defendants bring this appeal.

The appellants assign three specifications of error in the brief which they submitted to this Court. Our decision with regard to specification of error number two preter-mits any need for a discussion of the others.

ISSUE

The only crucial issue raised by appellants is whether the plaintiff met his burden of proof in relation to his claim for damages resulting from a loss of future earnings. There is no dispute as to the awards for medical expenses and loss of past earnings.

The accident occurred on the morning of May 9, 1978. The plaintiff had just left the apartment complex where he resided and was traveling down the Guilbeau Road in Lafayette, Louisiana. Sharlow was proceeding on the same road in the opposite direction. Sharlow was attempting to make a left turn and had crossed the center line of the road when he saw plaintiff coming at him. Sharlow then stopped or was almost stopped in plaintiff’s lane of traffic when plaintiff saw him. Plaintiff tried to avoid the collision by laying down the motorcycle in an effort to get off of it. He was unsuccessful in doing so and slid under the front end of the truck, sustaining bodily injury in the ensuing collision.

The plaintiff was taken by ambulance to a Lafayette hospital where he was treated and released. Plaintiff later visited local physicians complaining of continuing pain in his lower back and right leg.

There were two medical experts who testified by deposition. Dr. Kenneth Vogel, a neuro-surgeon practicing in the city of New Orleans, first examined the plaintiff on August 31, 1978. His preliminary diagnosis was that plaintiff was suffering from either a low back strain or a herniated disc. He also found evidence of hypoalgesia or numbness in the right foot and a teardrop fracture of one of the vertebra. Dr. Vogel confirmed his diagnosis of a herniated disc after running a series of tests on the plaintiff. The doctor eventually performed a posteromedial rhizotomy in an attempt to relieve the chronic pain from which plaintiff was suffering.

Dr. Stephen Goldware, also a neuro-sur-geon, practicing in Lafayette, Louisiana, testified as to his treatment of plaintiff. He first examined plaintiff on January 19, 1979. His diagnosis was that plaintiff had a lumbar root compression, probably due to a herniated disc or root contusion. He also found evidence of numbness in plaintiff’s right foot.

Plaintiff filed suit against Fatima and Reliance on February 21, 1979. He alleged that the negligence of Sharlow was the sole cause of the accident.

Appellants concede their liability on appeal and contest only the award of $100,-000.00 to the plaintiff for loss of future earnings. Appellants argue that plaintiff failed to present any evidence at trial which tended to show his right to recover for those damages.

LOSS OF FUTURE EARNINGS

A plaintiff who seeks to recover for loss of future earnings has the burden of proving the extent of his injuries resulting from the accident. He must also prove whether such injuries have incapacitated him from, in the future, doing work of a reasonable character, that is, work for which he was fitted by training and experience, of the same or similar kind in which he was engaged at the time of the accident. Viator v. Gilbert, 253 La. 81, 216 So.2d 821 (1968).

Dr. Vogel testified on behalf of plaintiff. That testimony as to his long-term prognosis with regard to plaintiff’s recovery was as follows:

“A. ... It was felt at that time maybe he would have incurred an approximate ten (10) to fifteen (15) percent medical impairment of the body as a whole, or disability, for a period of one (1) year. And during that time of one (1) year, he should avoid activities which would require him to lift things over fifty (50) pounds or bend repeatedly. After the one (1) year, it is anticipated that at this time that these lifting restrictions would be lifted if his healing goes on as optimistically anticipated.”

Dr. Vogel further testified on cross-examination that:

“Q. And it’s your opinion today, doctor, that this herniation will, in fact, heal itself?
A. Yes.
Q. So is it safe to say then, doctor, one (1) year from now Mr. Chaney should be almost as good as new?
A. Correct.
Q. You have mentioned the possibility of arthritis in the area of the little teardrop chip that you talked with us about. How much of a problem would that be, doctor?
A. I don’t think it is going to be a problem at all.”

The only other evidence presented by the plaintiff, regarding this element of damages, consisted of his testimony as to his own fears and apprehensions that he would be permanently disabled. We find that this falls far short of proving, by a preponderance of. the evidence, that plaintiff would suffer a permanent decrease in earning capacity. His own medical expert testified that he anticipated full recovery within a time period of one year.

Our finding is also supported by other evidence in the record which indicates that plaintiff has. not suffered any decrease in his earning capacity. Plaintiff is employed by the Baker Sand Control Company in Lafayette. The appellants called William Owens, an officer of Baker Sand, as their own witness. He testified that plaintiff was earning approximately $700.00 per month more at the time of the trial than at the time of the accident.

The defendants called Dr. Stephen Gold-ware as a witness. He testified that his examination of the plaintiff and the tests he performed showed no indication of any permanent injury.

. The plaintiff must prove his loss with reasonable certainty to support an award for loss of future earnings. Speculation, probabilities and conjecture cannot form the basis for such an award. Watson v. Hartford Accident & Indemnity Company, 339 So.2d 480 (La.App.2 Cir. 1976), writ denied, 341 So.2d 1124 (La.1977); Burrows v. Louisiana Department of Highways, 319 So.2d 867 (La.App.3 Cir. 1975); Heard v. Sanders, 223 So.2d 212 (La.App.2 Cir. 1969).

Plaintiff has failed to prove any permanent decrease in his earning capacity in our opinion. Consequently, we will amend the judgment of the trial court to delete the award of $100,000.00 to the plaintiff for loss of future earnings.

INADEQUACY OF JURY AWARD FOR GENERAL DAMAGES

The jury awarded the amount of $8,000.00 for “mental and physical pain and suffering, past and future.”

It is obvious, from a review of the evidence, which will be articulated hereinbe-low, that the jury committed manifest error, in that the award is grossly inadequate.

When a jury award is itemized as to each element of damage claimed, the appellate court separately reviews the evidence as to each element and may correct an error as to any, without regard to the correctness or error as to any other element of damage. Roy v. Schneider, 367 So.2d 1314 (La.App.4 Cir. 1979); Blancher v. Samuels, 354 So.2d 213 (La.App.4 Cir. 1977), cert. denied, 355 So.2d 257, 263 (La.1978).

LSA-C.C.P. Article 2164 provides that this Court shall render any judgment which is just, legal and proper upon the record on appeal. We feel that justice requires us to increase the jury’s award to the plaintiff for mental and physical pain and suffering, past and future. See also Official Comment to LSA-C.C.P. Article 2164; Temple v. Liberty Mutual Insurance Company, 330 So.2d 891 (La.1976); Gonzales v. Xerox Corporation, 320 So.2d 163 (La.1975).

This Court is well aware of the principle of LSA-C.C. Article 1934(3) that in the assessment of damages in cases of offenses and quasi offenses, “much discretion” must be left to the judge or jury.

Whenever the issue of quantum is considered on appeal, the court must make an initial inquiry as to whether the trial court’s award for the particular injury, and its effect on this particular injured person, is a clear abuse of the trier of fact’s “much discretion,” LSA-C.C. Article 1934(3), in the award of damages. It is only after articulated analysis of the facts discloses an abuse of discretion, that the award may, on appellate review, be considered either excessive or insufficient. Reck v. Stevens, 373 So.2d 498 (La.1979); Carollo v. Wilson, 353 So.2d 249 (La.1977); Schexnayder v. Carpenter, 346 So.2d 196 (La.1977); Olds v. Ashley, 250 La. 935, 200 So.2d 1 (1967).

ARTICULATION OF REASONS FOR QUANTUM INCREASE

Plaintiff had moved to Lafayette approximately three months before the occurrence of the accident, and secured a job with Baker Sand Control. He participated in a training program with that company, which was to last for three months, but which plaintiff could not finish because of the collision and resulting injury.

The plaintiff was pinned under the front end of the truck and seriously injured in the accident. The driver of the truck testified that as he got out of his vehicle, he took his foot off the clutch while the motor was running. This caused the vehicle to jerk, which further aggravated plaintiff’s injuries. Plaintiff had to take off two months from work in order to recover. He was able to walk only with the aid of crutches. He was treated by a Lafayette physician in this recovery phase and also underwent physical therapy. Plaintiff testified that he returned to work when he was able to walk unaided.

Plaintiff’s back was still hurting him when he returned to work, and his attorney referred him to a physician in New Orleans, one Dr. Deiser. Plaintiff saw Dr. Deiser in August of 1978. His attorney then sent him to Dr. Kenneth Vogel for consultation. Dr. Vogel felt that plaintiff would gradually improve with conservative care, which included moist heat, massage, physical therapy, and medication that does not include surgery.

Plaintiff then complained to appellant that he was still in pain and that he had no money to see a doctor. It was then that appellant sent him to see Dr. Goldware in Lafayette. Dr. Goldware examined plaintiff and recommended that he enter a hospital for myelography. Dr. Goldware felt that the positive objective signs which he found in his examination justified such a procedure. The plaintiff agreed and entered a Lafayette hospital on March 16, 1979, where he remained until his discharge on March 21, 1979.

The plaintiff saw Dr. Goldware for the last time on April 20, 1979. He continued to complain of pain in his back. Dr. Gold-ware recommended some psychological tests to see if that would provide any explanation for the pain. He felt that exploratory surgery was not indicated, and he was at an impasse as to what was causing the pain. Dr. Goldware testified that he ran tests to objectively determine if plaintiff was malingering or if the pain was some sort of hysterical reaction. He testified that he found no evidence of either.

Plaintiff returned to Dr. Vogel on May 1, 1979, still complaining of low back pain with intermittent pain in his right leg. Dr. Vogel suggested that he enter a hospital for a complete evaluation. Plaintiff agreed and was admitted to a New Orleans hospital on May 13, 1979. Dr. Vogel ordered a lumbar discogram run on plaintiff. The myelogram and lumbar discogram are moderately painful tests in and of themselves.

Dr. Vogel concluded from his tests that a disc in plaintiff’s spine had herniated. When asked if this type of injury can be painful, Dr. Vogel replied that:

“A. It can be. If one simply realizes that the disc has had a tear in it and it goes up into the bone, it can cause pain during the time of the herniation. It is not the kind of problem that we have to operate on to remove because it is not pinching the nerve, but by the fact that it is torn into the vertebral body or into the bone, this can cause pain.”

Dr. yogel also found that there was a slight chipping of one of the vertebra. Dr. Vogel testified that this could indicate some type of blow being administered to the spine. He was asked if this type of injury in and of itself is painful or could be painful. He testified that it could be painful if it was traumatic in origin, and that he found the fracture in the same general area of the lumbosacral spine where the herniated disc was located.

Dr. Vogel then recommended a lumbar rhizotomy in an attempt to relieve the plaintiff’s back pain. This procedure involves the insertion of an electrode into an area around the spine, the object being to sever certain nerves found there. Plaintiff was advised that such a procedure could result in paralysis of his leg with a permanent loss of the ability to walk. Plaintiff agreed to the operation.

The procedure was somewhat successful, and plaintiff was discharged on May 21, 1979, some eight days after he had been admitted. The plaintiff last saw Dr. Vogel on August 2, 1979, about four-and-a-half months before the trial. Plaintiff was unable to work between May 13, 1979, and the time of his last visit to Dr. Vogel. The doctor could not release him for an additional three weeks, and plaintiff did not return to work until August 28, 1979.

We find that the record clearly shows that plaintiff suffered chronic moderate back pain for almost a year between the time of the accident and the time that the rhizotomy was performed. It was Dr. Vo-gel’s assessment, after the last visit, that plaintiff was still suffering from mild back pain.

We are of the opinion that the trier of fact abused its discretion in awarding plaintiff only $8,000.00 for mental and physical pain and suffering, past and future. Reck v. Stephens, supra; Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977).

We agree with our Supreme Court in the cases just cited that a resort to the jurisprudence in an attempt to discern what amount would fully indemnify the plaintiff for this element of his damages would be of little or no value. We find that the lowest amount reasonably within the discretion of the trial court that would provide the full compensation to which plaintiff is entitled is $25,000.00.

For the above and foregoing reasons, the judgment of the trial court is amended and affirmed, deleting the $100,000.00 award for loss of future earnings, and raising the amount awarded to plaintiff for mental and physical pain and suffering, past and future, to $25,000.00 for a total award as follows:

General damages_$ 25,000.00
Loss of past earnings_ 12,000.00
Medical expenses_ 5,000.00
TOTAL AWARD _$ 42,000.00

Costs of appeal are assessed one-half to plaintiff and one-half to defendants-appellants.

AMENDED AND AFFIRMED.

      . “Art. 2164. Scope of appeal and action to be taken; costs
      The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal. The court may award damages for frivolous appeal; and may tax the costs of the lower or appellate court, or any part thereof, against any party to the suit, as in its judgment may be considered' equitable.”

      . LSA-C.C. Article 1934(3) reads in pertinent part:
      “In the assessment of damages under this rule, as well as in cases of offenses, quasi offenses, and quasi contracts much discretion must be left to the judge or jury, while in other cases they have none, but are bound to give such damages under the above rules as will fully indemnify the creditor, whenever the contract has been broken by the fault, negligence, fraud or bad faith of the debtor.”


author: LABORDE, Judge.

text:
    Vernon McCLINTON et al., Plaintiffs-Appellants, v. Herbert W. REID et al., Defendants-Appellees.
    No. 7854.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1980.
    Rehearings Denied Jan. 2, 1981.

      Gahagan & Gahagan, Fred S. Gahagan, Natchitoches, for plaintiffs-appellants.
    John M. Stewart, Arcadia, for defendants-appellees.
    Bolen & Erwin, Gregory S. Erwin, Alexandria, for defendant-appellee-appellant.
    Watson, Murchison, Crews, Arthur & Corkern, William P. Crews, Jr., Natchitoch-es, for intervenor-appellee.

      Before FORET, DOUCET and LA-BORDE, JJ.
   LABORDE, Judge.

Plaintiffs, Vernon McClinton and his wife Grade, sued Herbert W. Reid d/b/a Reid’s Fire Equipment Co., and Casco Products Company seeking recovery of damages sustained to plaintiffs’ restaurant when an automatic fire extinguisher system allegedly malfunctioned. The system was sold, installed and maintained by Reid and was manufactured by Casco. The McClinton’s fire insurer, Travelers Insurance Company, intervened to recover the amounts it paid for fire loss pursuant to its policy. The defendants, Reid and Casco, asserted various third party demands against each other.

Mode of trial was by jury. At the close of plaintiffs’ and intervenor’s case, the trial judge granted Reid’s motion for a directed verdict and ordered the principal demand dismissed against him. Casco proceeded with its third party demand against Reid. At the close of Casco’s presentation, the trial judge granted Reid’s motion for a directed verdict and ordered dismissal of the third party demand against him. The trial continued on the principal demand without Reid, leaving only Casco as defendant. At the trial’s conclusion, the jury returned a verdict in Casco’s favor. The McClinton’s and Travelers joined in a motion for a new trial which was denied. This appeal, involving all parties, followed.

The principal issues on appeal are whether the trial judge erred in granting either or both directed verdicts in Reid’s favor and if so, what portions of the case must be remanded for new trial. We hold that the trial court erred in granting the directed verdicts. We reverse and remand the entire case for new trial.

MOTION TO DISMISS THE APPEAL

Reid’s motion to dismiss the appeal is denied.

Casco appealed the dismissal of its third party demand against Reid. Reid moved to dismiss Casco’s appeal urging that it was untimely.

Article 2087 of the Louisiana Code of Civil Procedure sets forth the delays for taking a devolutive appeal. The last paragraph of the article provides:

“When a devolutive appeal has been taken timely, an appellee who seeks to have the judgment appealed from modified, revised or reversed as to any party may take a devolutive appeal therefrom within the delays allowed in the first Paragraph of this Article or within ten days of the mailing by the clerk of the notice of the first devolutive appeal in the case, whichever is later.” (Emphasis ours)

A chronological development of the facts shows that Casco’s appeal was timely. On November 7, 1979, Reid moved for a directed verdict seeking dismissal of Casco’s third party demand against him. On November 14, 1979, the trial judge granted Reid’s motion for a directed verdict. In the meantime, the principal action involving the McClinton’s and Casco continued and on November 9, 1979, judgment was rendered in Casco’s favor in the principal action. On January 7, 1980, the McClintons and Travelers filed a devolutive appeal from the judgment against them involving the principal demand. Although the motion for this appeal was filed on January 7, 1980, more importantly for our purposes, the Natchi-toches Parish Clerk of Court did not mail notice of this appeal until January 25, 1980. On February 4, 1980, Casco filed its motion for devolutive appeal seeking reversal of the directed verdict dismissing its third party demand against Reid. Thus, Casco’s appeal is timely as it was filed within 10 days of the mailing of the notice of the first devolutive appeal in the case. For these reasons, Reid’s motion to dismiss Casco’s appeal is denied.

THE MERITS

As mentioned above, the primary issues on appeal involve the propriety of the trial judge’s granting directed verdicts in Reid’s favor and dismissing both the principal and. third party demands against him. The applicable standard in granting a motion for a directed verdict was announced and adopted by our Court in Campbell v. Mouton, 373 So.2d 237 (La.App. 3rd Cir. 1979). That standard is:

“On motion for directed verdict ... the Court should consider all of the evidence-not just that evidence which supports the nonmover’s case-but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motion is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motion should be denied, and the case submitted to the jury.”

With this standard in mind, we must now consider whether the results reached by the trial judge were correct. We consider first the directed verdict granted on the principal demand, then the directed verdict granted on the third party demand.

At the close of the McCIintons’ and Travelers’ case, the trial judge dismissed the principal demand against Reid after granting his motion for a directed verdict. The record in this case, viewed in the light most favorable to the McCIintons and to Travelers, reflects the following. In order to maintain insurance coverage on their restaurant, the McCIintons purchased a fire extinguisher system from Reid. This system is designed to work automatically in the following manner. The fire extinguishing material is a dry powder similar to baking soda. This powder is stored in a cannister which is highly pressurized with gas. Pipes lead from the pressurized can-nister to nozzles located directly above the fire hazardous area the system is installed to protect. Also located in this area is a fusible link which melts when subjected to high temperatures. The melting of this fusible link triggers the release of the gas in the cannister which, due to the high pressurization, forces the extinguishing powder from the cannister, through the pipes, out of the nozzles, and directly onto the fire. There is no shut-off valve, so once the system is activated, it continues to spray the powder until it empties itself. The system is designed for reuse however; and requires only that it be reserviced, refilled, repressurized and recharged for the next use.

Reid, along with selling this system to the McCIintons, also installed it in their restaurant, positioning the nozzles in the kitchen directly over the deep fat fryers. In addition, Reid entered a maintenance contract with the McCIintons wherein he obligated himself to service the system and to perform semi-annual inspections of it in order to make sure it was in proper working condition.

In April of 1975, a fire occurred in the McCIintons’ restaurant, the Bayou Jacko. The fire extinguisher system automatically activated emptying its powder throughout the kitchen. Reid, pursuant to his maintenance agreement, removed the cylinder and control heads, (which included the pressure valve) brought them to his shop, disassembled the control head completely, cleaned it, put it back together, put the control head back in the cylinder, refilled it with dry powder, repressurized it, recharged it and reinstalled it in the kitchen above the deep fat fryers. Thereafter, Reid continued making semi-annual inspections of the system. These inspections consisted of changing the fusible link, cleaning the nozzles, blowing out the supply lines, checking the pressure gauge, and checking the system in general. Reid’s last semi-annual inspection was on April 17, 1977, less than a month before the fire which gave rise to the instant case.

On May 10, 1977, a second fire occurred in the Bayou Jacko Restaurant. This time the fire extinguisher system apparently malfunctioned and extensive damage occurred before the fire was extinguished by members of the Natchitoches Fire Department.

At the trial, McClinton and his employees testified that the fire originated in a deep fat fryer and spread when the fire extinguisher system failed to activate, either automatically or manually. Other evidence brought out by the McClintons and Travelers supports this. For example, Travelers hired J.L. Gilmore to investigate the origin of the fire and to conduct tests on the fire extinguisher system to discern why it failed to activate. Mr. Gilmore conducted a four-hour examination at the scene of the fire. He also boxed up the fire extinguisher system and sent it to his office for further testing. At the trial, Travelers called Mr. Gilmore as its expert witness. Mr. Gilmore testified that the fire appeared to have originated in a deep fat fryer. Finding no evidence of dry powder throughout the kitchen, Mr. Gilmore concluded that the fire extinguisher system failed to activate. After examining the system both intact in the restaurant and disassembled in his office, Mr. Gilmore concluded that the reason the system failed to activate was because the cannister lacked proper pressurization. Without the proper pressure, Mr. Gilmore explained that there was nothing to force the powder out of the cannister, through the pipes, out of the nozzles and onto the fire raging in the deep fat fryer. When questioned further, Mr. Gilmore stated that the rest of the system operated as it was intended to and that the only reason the system failed to activate was because it lacked proper pressurization. Due to the condition of the equipment, Mr. Gilmore admitted that he was unable to determine with certainty whether the cannister lacked pressure prior to the fire or whether the pressure instead leaked out during the fire, but in his opinion, he felt that there was no pressure in the cannister before the fire occurred. (Tr. 438)

. Counsel for the McClintons and Travelers questioned Reid under cross examination. Reid testified that maintenance of the system was his responsibility totally and if the system was discharged or used, it was also his responsibility to get it back in working condition. Other evidence brought out by the McClintons and Travelers showed that exclusive control of the workings of the system was left to Reid. Both the McClin-tons and their employees testified that no one, other than Reid or his employees, tampered with or had reason to tamper with the extinguisher system.

After a thorough review of all the evidence submitted by the McClintons and Travelers, conducted in the light most favorable to them and drawing all reasonable inferences in their favor, we conclude that a reasonable and fair-minded person could return a verdict in their favor and against Reid. For these reasons, we hold the trial judge erred in granting Reid’s motion for a directed verdict and dismissing the principal demand against him.

Application of the above standard also indicates error in the trial judge’s grant of a directed verdict in Reid’s favor concerning the third party demand urged by Casco. In that demand, Casco sought judgment against Reid for any amount it may be cast to pay alleging negligence of Reid in installing and maintaining the system. At the same time, Casco disclaimed any acts of negligence on its part.

A thorough review of Casco’s evidence, conducted in the light most favorable to Casco, reflects the following. Casco manufactured the system and is liable, as manufacturer, for any defects in design or manufacture. At the trial Reid testified that in installing and maintaining the system, he observed no defects. Similar testimony was given by Travelers’ expert witness, J.L. Gilmore, who examined and tested the system after the fire. Mr. Gilmore testified that he found no defects in the system’s manufacture or design. Instead, the only reason the fire extinguisher system malfunctioned was because it lacked proper pressurization.

Other testimony established that Casco was not responsible for maintaining or inspecting the system. Instead, these were Reid’s duties and these duties encompassed pressurization of the system. Other evidence showed that the system functioned properly during the fire in 1975, that shortly thereafter Reid repressurized the system, and that since then Reid inspected the system semi-annually which included a check of the pressure gauge.

After a thorough review of all the evidence submitted by Casco, in the light most favorable to them and drawing all reasonable inferences in their favor, we conclude that a reasonable and fair-minded person could return a verdict in favor of Casco and against Reid. Therefore, we hold the trial judge erred in granting Reid’s motion for a directed verdict dismissing Casco’s third party demand against him.

The trial judge granted Reid’s motion for a directed verdict on the principal demand at the close of McClintons’ and Travelers’ case. Likewise, he granted Reid’s motion for a directed verdict on the third party demand at the close of Casco’s case. Due to the trial judge’s rulings, Reid was never required to put on any evidence.

We are mindful of the recent expression of our Supreme Court in Ragas v. Argonaut Southwest Insurance Co. et al., 388 So.2d 707 (La.1980). In the Ragas case the court stated:

“Where a finding of fact is interdicted because of some legal error implicit in the fact finding process or when a mistake of law forecloses any finding of fact, and where the record is otherwise complete, the appellate court should, if it can, render judgment on the record.” (Emphasis ours)

In Ragas the directed verdict was granted at the close of all the evidence. Our case is distinguishable. Since the trial judge’s rulings precluded the introduction of any evidence by Reid, the record is incomplete. We cannot render a judgment on an incomplete record. Due to the peculiarities of this case, we feel that fairness to all parties is best served by remanding the entire case for new trial.

For the above reasons, the judgment of the district court granting Reid’s motions for directed verdict is reversed and those motions are denied. It is now ordered, adjudged and decreed that the entire case be remanded for new trial. Costs of this appeal are taxed against Herbert W. Reid. All other costs must await further proceedings.

REVERSED AND REMANDED.

      . The McClinton’s filed a “First Supplemental and Amending Petition” in order to add Casco as a co-defendant in this suit.


author: SWIFT, Judge.

text:
    Marshall ANGELLE, Plaintiff-Appellee, v. Leo Darold PREJEAN, Defendant-Appellant.
    No. 7861.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1980.

      Champagne, Colomb & Brumbaugh, Thomas Burmbaugh, Lafayette, for defendant-appellant.
    W. Glenn Soileau, Breaux Bridge, for plaintiff-appellee.
    Before CULPEPPER, CUTRER and SWIFT, JJ.
   SWIFT, Judge.

This suit concerns the ownership of a portion of a drainage canal. The defendant has appealed a judgment of the trial court finding the plaintiff to be the owner of the disputed area and enjoining the defendant from obstructing the drainage. We reverse as to the injunctive relief granted, but otherwise affirm. However, our reasons are somewhat different than those given by the trial judge.

The plaintiff, Marshall Angelle, purchased an irregularly shaped tract of land from Bertha Dupuis, et al., hereinafter referred to as “the Dupuis heirs”, by cash deeds in late March, 1976. The description of the property in these acts of sale is as follows:

That certain tract or parcel of land situated in Sections 35 and 63, T8S, R6E, St. Martin Parish, Louisiana, consisting of 1.617 acres, and having such dimensions and boundaries as are shown on that certain plat of survey entitled “Plat of Survey of Property to be Acquired by Marshall Angelle from Bertha Dupuis, et al” dated March 19, 1976, prepared by Robert L. Pate, Land Surveyor, a copy of which is attached hereto and made a part hereof, said property. being bounded northerly by Interstate Highway 10, Southerly by Leo D. Prejean, in part, in party (sic) by Charles E. Meyer, et al, now or formerly, and Bertha Dupuis, and Westerly by Melvin Dupuis. Being a portion of the property acquired by Adele Guidry Dupuis, ancestor in title of the present vendors, by Dation from Beauregard Dupuis.

The plat referred to is reproduced as follows:

The defendant, Leo Darold Prejean, purchased from Bertha Dupuis on November 16, 1978, and from three of the other Du-puis heirs on April 10, 1979, the following property:

That certain parcel of land, situated in Section 35, Township 8 South, Range 6 East, Fifth Ward, East side of Bayou Teche, Parish of St. Martin, Louisiana, measuring 28.68 feet, more or less, on Louisiana Highway 347, its Southeastern line, together with a depth of 170.10 feet, more or less, extending to the Northwestern line of the property of Leo Darold Prejean, depicted as the Southeastern 170.10 feet, more or less, of “Drainage Ditch” on plat of survey by Russell Caf-fery, Surveyor, dated March 19, 1976, attached to instrument of sale dated March 31, 1976, recorded in Book 729, at page 947, under Entry No. 173484 of the Conveyance Records of St. Martin Parish, Louisiana, and being bounded, now or formerly, on the Northeast by the property of Leo Darold Prejean, on the Southeast by Louisiana Highway 347, on the Northwest by the remaining Northwestern portion of that property depicted as “Drainage Ditch” on the aforementioned plat of survey, and on the Southwest by the property of Charles E. Meyer, et al. Subject to servitude of drain thereover as provided by law.

This is the property that is in dispute in this case and it is that part of the drainage ditch shown on the plat between the southerly prolongation of the western boundary of the Leo D. Prejean tract and the western boundary of La. Hwy. No. 347.

Mr. Angelle filed this suit styled, “PETITION FOR WRIT OF INJUNCTION FOR DAMAGES”, asserting that he is the record owner of the canal between the Leo D. Prejean property on the north and the tract to the south thereof leased by defendant from Charles E. Meyer, et al. The petition sets forth that in July, 1979, Mr. Prejean placed culverts in the ditch and covered them with dirt creating a ramp connecting his two tracts. It was further alleged that the culverts and ramp obstructed the drainage of Angelle’s property and having been built without his consent, the plaintiff was entitled to injunctive relief to prevent the defendant from stopping the drainage and further ordering removal of the obstruction. Alternatively, plaintiff sought a declaration that he is the owner of the drainage canal. He also sought damages for misappropriation of his property, loss of use thereof, damage to his restaurant business and attorney’s fees.

The defendant answered admitting that Angelle was the owner of the property first described hereinabove, that Prejean owned the tract to the north of the canal and that he leased the Meyer tract to the south thereof. All other allegations of the petition were denied. In a reconventional demand the defendant alleged that he is a co-owner with an undivided 3/io interest in that part of the canal immediately south of his tract, having acquired same from Bertha Dupuis and the three other Dupuis heirs by the 1978 and 1979 deeds mentioned above. Prejean prayed that his undivided interest in the canal be recognized and the suit dismissed.

Neither party alleged that he is in possession of the property in dispute. Nor was any evidence whatsoever offered to establish possession thereof or even the existence of the alleged obstruction. However, as both parties seek a declaration of their ownership of this part of the canal, we view the proceeding as one included in LSA-C.C.P. Art. 3654. Therefore, this issue must be determined under subsection (2) of the article, that is, on the basis of who has proved the better title. With this in mind we will now address the question of ownership.

In his brief the defendant acknowledges there is no dispute that the Dupuis heirs were the owners of the drainage canal when they sold to the plaintiff in 1976. He contends, however, that although his vendors were parties to such sales, the disputed portion of the ditch was not included in the description contained in the deeds. Consequently, his subsequent purchases of the undivided interests therein of the four Du-puis heirs were valid.

As we appreciate the defendant’s argument, the failure to name the Leon D. Pre-jean tract as one of the northern and one of the southern boundaries of the land conveyed to Angelle by the Dupuis heirs establishes that the disputed part of the ditch was not included in such sales.

We are in accord with defendant’s position that the description in these deeds in unambiguous and parol evidence was not admissible to explain what the vendors intended to convey. LSA-C.C. Art. 2276. However, we do not agree with his interpretation of this description under the law.

In Gibson v. Johnson, 244 So.2d 713 (La.App. 2 Cir. 1971), writ refused 258 La. 347, 246 So.2d 197 (La.1971) the court said:

“It is a well-known rule that when a description refers to a plat ‘the plat itself with all its notes, lines, descriptions and landmarks becomes a part of and controls the grant * * * ’ Acadia-Vermilion Rice Irrigating Co. v. Miller, 178 La. 954, 152 So. 576, 577 (1933).”

Also, in State v. Placid Oil Company, 274 So.2d 402 (La.App. 1 Cir. 1972), writ issued 275 So.2d 778 (La.1973), affirmed in part and amended in part, 300 So.2d 154 (La.1973), it was said:

“In so contending, Placid relies upon the well established rule of law that where property is described in reference to an attached plat, the plat controls in the event of any discrepancy in description between the worded description in the lease or deed and the plat-indicated boundaries thereof. Maginnis Land & Improvement Company v. Marcello, 168 La. 997, 123 So. 653 (1929); Werk v. Leland University, 155 La. 971, 99 So. 716 (1924).”

This well settled rule of deed interpretation was also quoted in Eves v. Morgan City Fund, 252 So.2d 770 (La.App. 1 Cir. 1971), and applied by this court in Prather v. Valien, 327 So.2d 130 (La.App. 3 Cir. 1976), writ refused 330 So.2d 318 (La.1976).

Examination of the plat attached to An-gelle’s deeds readily reveals the boundaries completely delineating the 1.617 acres conveyed thereby with their courses and distances. It is obvious both from the plat and the bounding owners description in the deed that the southern line of Angelle’s acquisition is the northern boundaries of the Bertha Dupuis and Charles E. Meyer, et al. properties. This is also the southern line of the drainage ditch. If the vendors had not intended to include the disputed part of the canal in the sale, undoubtedly there would have been a line extending in a northerly-southerly direction through the canal as a prolongation of the western boundary of the Leo D. Prejean tract. Also, the distance between the southwestern corner of the land conveyed and such line would have been shown on the plat. The course and distance between the southern line of the ditch and the southwestern corner of the Prejean tract would also appear.

Thus, it is clear from the plat that all of the drainage ditch from the western boundary of the land sold to Angelle to the western line of La. Hwy. No. 347 was included in the sales from the Dupuis heirs to plaintiff. Therefore, the defendant acquired no part of the canal by the deeds of 1978 and 1979 mentioned above, because his vendors had previously sold their interests therein to Mr. Angelle by the March 1976 deeds.

The plaintiff has established a better title to the disputed property and we agree that the trial judge correctly recognized his ownership thereof.

As stated, there is no evidence in the record of the existence of the alleged culverts and ramp or that the plaintiff sustained any damages as a result of the defendant’s actions. The trial judge therefore correctly denied plaintiff’s claims for the latter, but erred in granting the injunctive relief prayed for.

For the foregoing reasons, the judgment of the district court is reversed insofar as it enjoined thd defendant from blocking the drainage canal and ordering him to remove culverts and other material therefrom. The assessment of court costs is amended as hereinafter set forth. Otherwise, the judgment is affirmed. The costs of court, including this appeal, are assessed to plaintiff-appellee and defendant-appellant in the proportions of one-half each.

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


text:
    Dewey James HELVERSON, Plaintiff-Appellant, v. RAPIDES PARISH POLICE JURY et al., Defendants-Appellees.
    No. 7863.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1980.
    Rehearing Denied Jan. 2, 1981.
    Gist, Methvin, Hughes & Munsterman, John W. Munsterman, Alexandria, for plaintiff-appellant.
    Edwin 0. Ware, Alexandria, Charles F. Wagner, Pineville, for defendant-appellee.
    Gravel, Robertson & Brady, Dan E. Mel-ichar, Alexandria, for intervenor-appellee.
    Before DOMENGEAUX, GUIDRY and STOKER, JJ.
   STOKER, Judge.

Plaintiff, Dewey James Helverson, brings this mandamus suit to compel the defendants, the Sheriff of Rapides Parish, the Rapides Parish Police Jury and the Secretary-Treasurer of the Police Jury, to issue him a permit to sell beer. The trial court dismissed plaintiff’s petition for the writ of mandamus. Plaintiff appeals.

The issue presented by this appeal is whether Section 4-108 of the Rapides Parish Code of Ordinances which prohibits within certain wards of Rapides Parish, Louisiana, the sale of beer with an alcohol content of greater than one-half of one per cent by volume but less than six per cent by volume is valid.

Plaintiff seeks to obtain a permit to sell beer as a part of his business, the Sunrise Grocery. This store is located in Ward Nine of Rapides Parish. The Rapides Parish Police Jury and the Sheriff of the parish refuse to issue a permit to the plaintiff because of the dry ward ordinance which allegedly prohibits the sale of beer in Ward Nine.

THE HISTORY OF LOCAL OPTION LEGISLATION

The ordinance upon which they rely is Section 4-108 of the Rapides Parish Code of Ordinances. It was adopted in 1940 pursuant to Act 17 of the First Extraordinary Session of 1935 of the Louisiana Legislature, the local option statute effective at that time. This act permitted local option elections in wards, parishes, and municipalities. These subdivisions through local option elections could prohibit the sale of beverages with an alcohol content between one-half of one per cent and six per cent by volume or those with an alcohol content greater than six per cent or both. The act authorized wards, parishes, and municipalities to prescribe penalties for violations not to exceed a $500 fine or imprisonment for six months or both.

Act 372 of 1948 amended the local option law of 1935. Wards, incorporated villages, towns, and cities could conduct local option elections but could not ban the sale of beverages containing more than one-half of one per cent and not more than three and two-tenths per cent of alcohol by weight. Section 17 of the act repealed all laws on the same subject but saved those local ordinances in effect at that time which prohibited the sale of beverages containing more than one-half of one per cent of alcohol by volume.

Act 372 of 1948 was expressly repealed by the Legislature in 1950. The local option provisions were codified as LSA-R.S. 26:581 through 595. The savings clause of Section 17 of Act 372 of 1948 was deleted from the Revised Statutes.

As enacted in 1950 LSA-R.S. 26:581 through 595 permitted the exercise of local option by any ward or incorporated municipality. LSA-R.S. 26:588 prohibited local options affecting beverages containing more than one-half of one per cent alcohol by volume but not more than three and two-tenths per cent alcohol by weight. Parish wide local options were prohibited. Penalties for violations were limited to a fine not to exceed $100 or imprisonment for thirty days or both.

LSA-R.S. 26:588 was amended by Act 705 of 1972. This amendment purports to preserve ordinances prohibiting the sale of beverages with less than three and two-tenths per cent alcohol. In State v. Sissons, 292 So.2d 523 (La.1974) the Supreme Court deemed this an attempt at legislative interpretation and found the amendment ineffective.

The Legislature again amended the local option statutes in 1974. Acts 37, 325 and 648 of 1974 represent an attempt by the Legislature to overrule jurisprudence that held local option elections and ordinances invalid. Many of these provisions have been declared unconstitutional. See Nomey v. State, 315 So.2d 709 (La.1975) and Tolar v. State, 315 So.2d 22 (La.1975). In addition the jurisprudence holds those amendments not declared unconstitutional are to be applied prospectively only. See State v. Wright, 305 So.2d 406 (La.1974).

CONTENTIONS OF THE PARTIES

Plaintiff-appellant argues that the trial judge erred in relying on 112 Grocery v. Cappel, 228 So.2d 157 (La.App. 3rd Cir. 1969), writ refused, 255 La. 246, 230 So.2d 94 (1970). Plaintiff contends the controlling cases are State v. Sissons, supra; State v. Wright, supra; Tolar v. State, supra; and Froeba v. State, Dept. of Public Safety, 369 So.2d 727 (La.App. 3rd Cir. 1979), writ refused, 371 So.2d 615 (La.1979).

The defendant Police Jury maintains that the Louisiana Legislature in adopting the Revised Statutes of 1950 did not intend to invalidate local ordinances passed prior to 1948 which prohibited the sale of alcoholic beverages containing less than three and two-tenths per cent alcohol by weight. Defendant urges us to follow those cases which upheld local ordinances by virtue of LSA-R.S. 1:16. See State v. Bradford, 220 La. 176, 56 So.2d 145 (1951); State v. Wilson, 221 La. 990, 60 So.2d 897 (1952); State v. Dunning, 224 La. 204, 69 So.2d 16 (1953); and 112 Grocery v. Cappel, 228 So.2d 157 (La.App. 3rd Cir. 1969).

STATUS OF LOCAL OPTION AS DECIDED BY THE LOUISIANA SUPREME COURT

State v. Sissons, supra; controls our decision in this case. In State v. Sissons, the Supreme Court dealt with the validity of a parish-wide ordinance adopted in Winn Parish in 1939. This ordinance prohibited the sale of alcoholic beverages containing more than one-half of one per cent of alcohol by volume. The court held that the Revised Statutes of 1950 invalidated the ordinance. The Supreme Court rejected the reasoning of prior cases, including State v. Dunning, supra; State v. Wilson, supra; and State v. Bradford, supra; which held that LSA-R.S. 1:16 acted as a general savings clause protecting local option ordinances passed prior to the enactment of the 1950 Revised Statutes. The Louisiana Supreme Court’s holding in Sissons had the effect of invalidating local option ordinances which were adopted prior to 1948 and which prohibited the sale of beverages containing more than one-half of one per cent alcohol by volume.

Section 4-108 of the Rapides Parish Code of Ordinances attempts to prohibit the sale of beverages with an alcohol content of more than one-half of one per cent. This ordinance is invalid because it conflicts with LSA-R.S. 26:588 as enacted in 1950 which provided that beverages with an alcohol content of more than one-half of one per cent alcohol by volume but less than three and two-tenths per cent alcohol could not be regulated by local option. Since Section 4-108 is invalid the denial of a permit to sell beer based on this ordinance is not warranted. See Harper v. State, Department of Revenue, 328 So.2d 669 (La.1976).

For the foregoing reasons, we must reverse the trial court. Despite the Supreme Court’s holding in State v. Sissons, supra; and later cases, the learned trial judge erroneously concluded that the decision of this court in 112 Grocery v. Cappel, 228 So.2d 157 (La.App. 3rd Cir. 1969), writ refused, 255 La. 246, 230 So.2d 94 (La.1970) is still viable and controlling. In that 1969 case this court upheld a “dry” ordinance adopted by the Rapides Parish Police Jury as a result of a local option election. The plaintiff in 112 Grocery v. Cappel sought by a mandamus suit to compel the Sheriff of Rapides Parish and other public officials to issue plaintiff an alcoholic beverage retail license to sell beer of 3.2 per cent alcoholic content. The Supreme Court denied writs. As we noted in 1969 when we decided 112 Grocery v. Cappel the decisions of the Louisiana Supreme Court supported our decision. We cited the Supreme Court cases of State v. Dunning, supra; State v. Wilson, supra; and State v. Bradford.

In State v. Sissons, supra; the Louisiana Supreme Court reversed itself and specifically overruled the three Supreme Court cases we relied upon in 112 Grocery v. Cappel, supra; along with its case of State v. Beene, 263 La. 865, 269 So.2d 794 (1972). It should be axiomatic, we think that we, as an intermediate appellate court, are bound by decisions of the Louisiana Supreme Court which construe the statutes of this state. See Heidecker v. Fidelity & Casualty Co. of New York, 153 So. 35 (La.App. 2nd Cir. 1934); State, ex rel. Fernandez v. Feucht, 163 So. 761 (Orl.App. 1935); Jordan v. Life General Security Insurance Company, 333 So.2d 732 (La.App. 4th Cir. 1976), writ denied, 337 So.2d 219 (La.1976). The cases are legion which hold that Courts of Appeal are bound to follow decisions of the Louisiana Supreme Court. See for example Lombardo v. Argonaut Insurance Company, 354 So.2d 731 (La.App. 4th Cir. 1978), writ denied, 355 So.2d 1325 (La.1978).

We would not belabor this point were it not for the fact that the reasons for judgment assigned by the learned trial court took the position that 112 Grocery v. Cappel was still valid law despite State v. Sissons. This position was based on the fact that the Supreme Court did not overrule that case by name in State v. Sissons nor did we do so in our case of Froeba v. State, Department of Public Safety, supra. In Sissons, the Supreme Court specifically stated it was overruling certain cases previously decided by it. This was entirely appropriate as the Supreme Court was pronouncing a new interpretation of statutes contrary to its own previous interpretation. The Supreme Court of this State is not required to ferret out all previously decided cases of the intermediate appellate courts of the state in conflict with a decision being announced and specifically overrule them.

If, however, there should be any doubt about the matter, the dissenting opinion of Chief Justice Sanders in Sissons leaves no doubt but that the Supreme Court majority in Sissons did indeed overrule 112 Grocery v. Cappel. In his dissent Chief Justice Sanders said:

“In a uniform series of decisions beginning in 1951, this and other state courts have held that the local option ordinances relating to the sale of alcoholic beverages, adopted by popular vote in some areas of the state, remained in effect after the enactment of the Revised Statutes in 1950. See ... 112 Grocery v. Cappel, La.App., 228 So.2d 157 (1969), cert. den. 255 La. 246, 230 So.2d 94 (1970) . . .
******
Today, despite the legislative reaffirmation, the majority sweeps aside the jurisprudence and holds that the local option ordinances were repealed or abrogated in 1950 by the enactment of the Louisiana Revised Statutes.”

For the foregoing reasons, the trial court was in error when it held that it was bound to follow our decision in 112 Grocery v. Cappel, supra. The Supreme Court case of State v. Sissons did overrule 112 Grocery v. Cappel, supra; and the district court, as well as this Court of Appeal, must follow the Sissons case as we did in the Froeba case.

In an excellent brief learned counsel for the defendant-appellee, the Rapides Parish Police Jury, has attacked the validity of State v. Sissons and later decisions of the Louisiana Supreme Court, charging that the highest court of this State has frustrated the legislative will' and that its decisions are in error. On behalf of the Policy Jury it is urged that decisions rendered prior to the Sissons case properly interpret the legislative intent and that later enactments of the Louisiana Legislature confirm that intent. That intent, so it is urged, was that prior legislation, particularly the legislation adopting the Revised Statutes of 1950, contained a savings clause preserving ordinances such as the one before us. Inasmuch as our highest court has ruled on that very point in Sissons, that argument cannot be considered by us and must be addressed to the Louisiana Supreme Court. For the reasons we have already given we are bound by the interpretation of that court. Holland v. Buckley, 287 So.2d 599 (La.App. 2nd Cir. 1973), writ issued, 288 So.2d 639 (La.1974), reversed, 305 So.2d 113 (La.1974) decision on remand, 312 So.2d 356 (La.App. 2nd Cir. 1975). In this connection see the comments of the Supreme Court majority in the Sissons case regarding the respective roles of the Legislature and of the Supreme Court of this State in interpreting legislation. 292 So.2d at 527.

CONCLUSION

Under the circumstances of this case, we are compelled to reverse the trial court inasmuch as plaintiff-appellant is entitled to the grant of a license provided he is otherwise qualified under law.

For the foregoing reasons the judgment of the trial court is reversed; this case is remanded to the trial court for further proceedings consistent with the views expressed herein.

Costs of this appeal are assessed to defendant-appellee, Rapides Parish Police Jury.

REVERSED AND REMANDED.

      . Section 4-108 of the Rapides Parish Code of Ordinances reads as follows:
      It shall be unlawful for any person, firm, association of persons, corporation, or any one else to produce, manufacture, rectify, blend or handle, sell, use, distribute, store or consume, beer, porter, ale, fruit juices, wine, malt, vinous, spirituous alcoholic or intoxicating liquors containing more than one-half of one per cent (V2 of 1%) of alcohol by volume, but not exceeding six per cent (6%) of alcohol by volume, otherwise than when prescribed by a licensed physician as medicine, within Wards Nine, Ten and Eleven of Rapides Parish, Louisiana. (Ord. of 9-11-40, § 1)

      . This Act also authorized these subdivisions to prohibit the sale of beverages with an alcoholic content of greater than six per cent.

      . It is interesting to note that the decision of this Court of Appeal in 112 Grocery v. Cappel, supra; was written by Judge Albert Tate, Jr. while he was a member of and Chief Judge of this court. Later as a Justice of the Louisiana Supreme Court he was a member of the majority in State v. Sissons, supra; which reversed the prior jurisprudence. Also while he was a member of that court, Justice Tate wrote the decision of the Louisiana Supreme Court in Harper, Department of Revenue, supra; in 1979 which reversed this Court of Appeal in a case presenting facts almost identical to those of this case before us. In Harper we had attempted to uphold a dry ordinance by distinguishing Sisson on the ground that it applied only to cases involving criminal penalties and did not apply to civil proceedings in which permits to sell certain alcoholic beverages were denied. Justice Tate, for the Supreme Court majority, reversed our decision and held there was no jurisprudential reasoning for our interpretation in Harper. Inasmuch as Harper is directly contra to 112 Grocery v. Cappel, the latter case is clearly no longer the law.

      . Justice Dixon (now Chief Justice) writing for the majority in Sisson said:
      “The authority supporting those ordinances prohibiting beverages of less than 3.2 per cent alcoholic content was expressly repealed in 1950. That authority cannot be preserved; it can only be revived. The language of the amendment does not intend or accomplish revival.”


author: DOMENGEAUX, Judge.

text:
    SOUND DOCTOR RECORDING STUDIO, INC., Plaintiff/Defendant in Reconvention-Appellee, v. Steve CONN, Defendant/Plaintiff in Reconvention-Appellant.
    No. 7864.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1980.

      Gravel, Robertson & Brady, James J. Brady, Alexandria, for defendant/plaintiff in reconvention-appellant.
    Provosty, Sadler & deLaunay, H. Bren-nen Sadler, Alexandria, for plaintiff/defendant in reconvention-appellee.
    Before DOMENGEAUX, GUIDRY and STOKER, JJ.
   DOMENGEAUX, Judge.

Sound Doctor Recording Studio, Inc. (Sound Doctor) brought this suit on open account against Steve Conn, a musician, song writer, and singer, to recover $3,065.00 in expenses allegedly incurred by Sound Doctor on behalf of Conn. Conn reconvened against Sound Doctor alleging that Sound Doctor commercially used, without Conn’s permission, certain of his copyrighted tunes, jingles, and/or songs. He further alleged that Sound Doctor ran certain ads, again without his permission, which claimed that Conn was associated with or was working with Sound Doctor at a time when no such relationship existed. Conn claimed these acts by Sound Doctor caused him financial loss, embarrassment, and humiliation, and loss of professional standing to the tune of $6,500.00.

After trial on the merits, the court opined that plaintiff, Sound Doctor, was not entitled to recover on open account since there was no agreement to pay a specific sum. It did rule, however, based on La.C.C.P. Art. 862, that “Sound Doctor Recording Studio, Inc., is entitled to market, sell and distribute the musical tunes of defendant [Steve Conn] which were recorded at plaintiff’s recording studio, and to recoup therefrom its expenses and such other benefits to which it might be entitled.” Judgment was signed February 7, 1980, and the defendant has appealed.

The following facts were indisputably established by the testimony of Steve Conn and Robert Vernon, the president, majority stockholder, and chief sound engineer of Sound Doctor.

In early to mid-1977, Conn and others were asked by Vernon to record musical work at Sound Doctor Recording Studio. Conn (and presumably the others) acceded to this request. Shortly before recording was to begin, Conn asked Vernon “What’s in this for you?” or words to that effect, to which Vernon replied “We’ll worry about that down the line.” After this brief and inconclusive rapport, Conn recorded approximately twelve tunes at the recording studio. These tunes were recorded on a “master tape”. At no time did Conn and Vernon engage in any verbal or written agreement regarding any recompense to Vernon or Sound Doctor for recording time given to Conn.

Subsequent to the recording session, Conn participated in a “musical showcase”-an exhibition of local musical talent arranged by Vernon-which was designed to appeal to Mr. Judd Phillips, a representative of Mercury-Phonograph, a recording company, for whose benefit the exhibition was staged.

Later, in June or July of 1977, Vernon and Conn traveled to New York City for the purpose of discussing with Ms. Helena Bruno of Chapel Music, a large publishing company, the possibility of publishing some of Conn’s music. Shortly thereafter, while still in New York, Conn inexplicably severed his business relationship with Vernon and Sound Doctor Recording Studio.

Sound Doctor has retained possession of the “master tape” on which are recorded Conn’s tunes but it has never been able to secure Conn’s oral or written permission to market, sell, or distribute the tunes recorded on this tape.

Nothing has ever been paid to Sound Doctor by Conn for its efforts to record and promote Conn’s music. For this reason, Sound Doctor instituted suit on open account hoping to recover for 66 hours of uncompensated studio time with an alleged value of $30.00 per hour (or $1,980.00), $1,000.00 expended on the fruitless trip to New York, and $85.00 which represented the cost of the tape.

The trial court correctly held that Sound Doctor was not entitled to recover on open account. Neither party has appealed from that determination. We believe, however, that the lower court incorrectly held that Sound Doctor was entitled under La.C.C.P. Art. 862, to market, sell, and distribute the musical tunes of Steve Conn.

La.C.C.P. Article 862 provides:

“Except as provided in Article 1703, [default judgments], a final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings and the latter contain no prayer for general and equitable relief.”

The trial court was of the opinion that the relief accorded plaintiff was justified under the relevant facts that were properly proven at the trial. We are left wondering, by the court’s brief reasons for judgment, which relevant facts were properly proven and which were not. We are also left wondering which law, or which theory of recovery entitles plaintiff to market, sell, and distribute the songs of another, and to recoup an unspecified amount of expenses as well as other unknown benefits “to which it might be entitled.”

Sound Doctor argues that sufficient facts were proven to support a judgment in its favor based upon the theories of implied contract (La.C.C. Art. 1811) or quasi contract/quantum meruit (La.C.C. Arts. 1965, 2292-2294). Steve Conn argues that the judgment creates a contract of mandate between the parties. He urges reversal on the basis that the facts do not support such a judgment.

We find the judgment does create a contract of mandate between Conn and Sound Doctor because it authorizes Sound Doctor to market, sell, and distribute defendant’s tunes. La.C.C. Art. 2985. The facts do not support such a judgment because a contract of mandate was never created by the parties, nor was one intended to be created. Robert Vernon admitted that he never had Conn’s permission to market, sell, or distribute the songs. Further, the record demonstrates that neither Vernon nor Sound Doctor ever procured Conn’s consent, either expressed or implied, to transact any business on Conn’s behalf. Therefore, the judgment as rendered cannot be sustained.

The record establishes that neither party is entitled to relief. La.C.C. Art. 1779 lists four requisites which are necessary to the validity of every contract: (1) parties legally capable of contracting; (2) their consent legally given; (3) a certain object which forms the matter of agreement; and (4) a lawful purpose. Sound Doctor is not entitled to recover under the theory of implied contract because two essential ele-merits are lacking. From the facts surrounding the relationship between Sound Doctor and Steve Conn, we conclude: (1) there was no express or implied consent to contract, and (2) there was no certain object which formed the matter of agreement.

The most that can be said of the relationship existing between Sound Doctor and Steve Conn is that Conn recorded songs at Sound Doctor Recording Studio at the continued insistence of Robert Vernon; that Conn participated in a “musical showcase” arranged by Vernon; and that Conn traveled to New York, at Vernon’s expense, to meet with a representative of a publishing company. We do not think these facts, especially when considered in the light of other facts duly established by testimony (discussed hereinafter), are sufficient to support a finding of an implied contract.

Those other facts demonstrate a complete lack of mutuality, or meeting of the minds. Although both parties may have assumed that Conn’s songs might eventually be sold as a result of the efforts of Conn and Vernon, this common goal or desire was never discussed. Even if this goal had been commonly agreed upon, when might an implied contract have been confected and the parties bound thereto? There was no contract when the songs were being recorded because the studio time was being provided free of charge. Conn’s testimony to this effect was corroborated by that of J. D. Milliner, a fellow musician who recorded with Conn at Vernon’s studio. Although this testimony clashes with that of Vernon who testified he was “fronting” time to the musicians, the musicians’ understanding that the time was provided free is reasonable in the light of other circumstances. For instance, at that time, Vernon was a relative newcomer to the recording business, having opened his studio approximately six months before. Conn felt that Vernon was seeking to gain “prestige through association” by having Conn and other musicians record at his studio. Vernon admitted that he solicited Conn’s services and also admitted that he considered Conn to be one of the area’s best musicians. Under this set of circumstances, Conn’s belief that the studio time was being provided free of charge was a reasonable one.

In contrast, Vernon testified he was fronting time to the musicians. “Fronting” was essentially a credit arrangement whereby a musician would record his work at a studio but would not pay for the time used until the recordings were successfully marketed. Vernon claims that Conn was aware that theirs was such an arrangement. Conn denied that he agreed to or was aware of a fronting arrangement. We conclude that if Vernon had told Conn of the fronting arrangement, there would have been no need for Conn to ask the question: “What’s in this for you?” because he demonstrated from his testimony that he (Conn) was very familiar with the term fronting. In any event, Vernon had an excellent opportunity in the early stage of their relationship to explain what he expected of that relationship when he was questioned by Conn. Instead of answering forthrightly, however, Vernon’s answer “We’ll worry about that down the line” was vague and uncertain.

To further refute the contention that Vernon was fronting him time, Conn testified that at the time the recording took place in 1977, he had a recording studio in his backyard upon which he could make demonstration tapes for distribution. According to Conn, although Vernon’s recording studio was more sophisticated, he, Conn, considered the tape produced there nothing more than a demonstration tape (although of a higher quality than what could be produced in his backyard studio), rather than a “master tape” which Vernon claimed it was. A “master tape” is of such quality that record albums meant for retail sales can be produced from the sound contained on the tape without further need of the musician’s talents. Conn testified that this tape is not a “master tape” because more studio work is required of the musicians to perfect and polish the sound already recorded thereon. Again, J. D. Milliner corroborated Conn’s testimony that the tape recorded at Sound Doctor Recording Studio was only a rough demonstration.

Did the parties, by their actions, implicitly contract with one another subsequent to the recording session? Again we think not. Sound Doctor argues that Conn’s participation in the musical showcase and his acceptance of Sound Doctor’s offer to go to New York were evidence of an implied contract. We disagree with this contention. We note that Sound Doctor made no claim for expenses incurred in producing the musical showcase. Obviously, he did not (and does not) expect any compensation from defendant for expenses incurred in arranging the showcase, especially since no agreements or commitments resulted therefrom. Of course, if something would have developed as a result of Vernon’s efforts, Sound Doctor’s argument that a contract was created at that time might have more merit.

As for the trip to New York, if Conn and Ms. Bruno had reached an agreement as a result of Vernon’s efforts, then Sound Doctor would have been entitled to some type of compensation. Vernon needed Conn to accompany him on the trip to New York, because he (Vernon) recognized that he did not have a contract with Mr. Conn and that he did not have the right to contractually bind Conn. We note in this regard that Vernon’s testimony indicates that he had other business to tend to in New York-he was not there solely to promote the music and talents of Steve Conn.

Finally, we think it is worthy of mention that both Conn and Vernon testified that some form of payment to Sound Doctor was anticipated but only if the tape made at the recording studio or Conn’s musical talents were sold or successfully marketed as a result of Sound Doctor’s (and Vernon’s) efforts. In that event, both Sound Doctor (Vernon) and Conn would have reaped the benefits. The record is devoid of any understanding, though, that their business relationship was intended to endure until Sound Doctor’s (Vernon’s) efforts bore fruit. For these reasons, we do not think any enforceable contract was ever created.

Sound Doctor argues alternatively that it is entitled to an award based on the equitable doctrine of quantum meruit. In Swiftships, Inc. v. Burdin, 338 So.2d 1193 (La.App. 3rd Cir. 1976), this Court said with respect to that doctrine:

“Quantum meruit is an equitable doctrine, based on the concept that no one who benefits by the labor and materials of another should be unjustly enriched thereby. Under those circumstances, the law implies a promise to pay a reasonable amount for the labor and materials furnished, even in the absence of a specific contract therefor. LSA-C.C. arts. 1965, 2292-2294; Jones v. City of Lake Charles, 295 So.2d 914 (La.App. 3 Cir. 1974); Custom Builders & Supply, Inc. v. Revels, 310 So.2d 862 (La.App. 3 Cir. 1975).
Generally, the plaintiff who establishes his right to be compensated on quantum meruit should recover as much as he reasonably deserves for his services, or for the labor and materials which he has furnished for the defendant’s benefit. The amount which he can recover on quantum meruit, however, is subject to a double limitation: (1) Plaintiff cannot recover more than the actual value of the materials and labor furnished for defendant, including a fair profit; and (2) plaintiff cannot recover more than the amount defendant was enriched by his furnishing of labor and materials. Custom Builders & Supply, Inc. v. Revels, supra.

Sound Doctor claims the value of the labor and materials furnished by it was $3,065.00. We note that $1,980.00 of that claim is for studio time. We believe the record supports a determination that this time was given to Conn free of charge (see discussion, supra) and cannot properly form part of an award based on quantum meruit.

With respect to the expense allegedly incurred on the trip to New York, Sound Doctor claimed $1,000.00 worth of expenses in its petition. However, this amount was later adjusted downward to $900.00 by Vernon during his testimony. Further, as we commented previously, Vernon had other business to tend to in New York besides the promoting of Conn’s talents. Yet he seems to have claimed all of his New York expenses in his suit against Conn. Vernon produced no evidence to substantiate his claim for expenses on the New York trip. We think he has completely failed to prove the amount of his expenses.

Finally, the last item of expenses claimed is $85.00 for the tape. Sound Doctor is clearly not entitled to recover this amount. The tape itself is locked safely away in the recording studio. Steven Conn has made no claim to ownership of the tape. His only claim is to ownership of the songs recorded thereon. Sound Doctor need only erase Conn’s songs from the tape to restore the tape to its original condition. We thus conclude that Sound Doctor Recording Studio has simply failed to prove that it is entitled to any amount based on the equitable doctrine of quantum meruit.

The trial court did not mention Steve Conn’s reconventional demand. Under established jurisprudence, such silence on the part of the District Court is deemed a rejection of all demands not considered. Cagle v. Spade Drilling Company, Inc., 325 So.2d 354 (La.App. 3rd Cir. 1975); Hebert v. Valenti, 235 So.2d 193 (La.App. 4th Cir. 1970). We find that there is simply no evidence which would support a judgment in favor of plaintiff in reconvention, Steve Conn, so we affirm the trial court’s rejection of defendant’s reconventional demand.

For the above and foregoing reasons the judgment of the District Court in favor of sound Doctor Recording Studio, Inc. on its original demand against defendant Steve Conn is reversed. The judgment of the District Court rejecting the demands of the plaintiff in reconvention, Steve Conn, is affirmed.

It is hereby Ordered, Adjudged, and Decreed that all demands be dismissed and that the costs be equally divided between Sound Doctor Recording Studio, Inc. and Steve Conn.

AFFIRMED IN PART, REVERSED IN PART AND DISMISSED.

      . “Art. 1811. The proposition as well as the assent to a contract may be express or implied:
      Express when evinced by words, either written or spoken;
      Implied, when it is manifested by actions, even by silence or by inaction, in cases in which they can from circumstances be supposed to mean, or by legal presumption are directed to be considered as evidence of an assent.”

      . “Art. 1965. The equity intended by this rule is founded in the Christian principle not to do unto others that which we would not wish others should do unto us; and on the moral maxim of the law that no one ought to enrich himself at the expense of another. When the law of the land, and that which the parties have made for themselves by their contract, are silent, courts must apply these principles to determine what ought to be incidents to a contract, which are required by equity.”
      “Art. 2292. Certain obligations are contracted without any agreement, either on the part of the person bound, or of him in whose favor the obligation takes place.
      Some are imposed by the sole authority of the laws, others from an act done by the party obliged, or in his favor.
      The first are such engagements as result from tutorship, curatorship, neighborhood, common property, the acquisition of an inherT tance, and other cases of a like nature.
      The obligations, which arise from a fact, personal to him who is bound, or relative to him, result either from quasi contracts, or from offenses and quasi-offenses.”
      “Art. 2293. Quasi contracts are the lawful and purely voluntary act of a man, from which there results any obliteration whatever to a third person, and sometimes a reciprocal obligation between the parties.”
      “Art. 2294. All acts, from which there results an obligation without any agreement, in the manner expressed in the preceding article, form quasi contracts. But there are two principal kinds which give rise to them, to wit: The transaction of another’s business, and the payment of a thing not due.”

      . “Art. 2985. A mandate, procuration or letter of attorney is an act by which one person gives power to another to transact for him and in his name, one or several affairs.”

      . The exhibition exposed the talents of several other musicians or groups of musicians in addition to defendant.


author: STOKER, Judge. DOMENGEAUX, Judge,

text:
    James Michael FORET, Plaintiff-Appellee, v. AETNA LIFE AND CASUALTY COMPANY, Defendant-Appellant.
    No. 7870.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1980.
    Rehearing Denied Jan. 2, 1981.
    See also, La.App., 357 So.2d 19.
    J. Wendel Fusilier (a Prof. Law Corp.) by J. Wendel Fusilier & Alex Chapman, Jr., Ville Platte, for defendant-appellant.
    Rozas, Manuel, Fontenot & McGee, B. J. Manuel, Mamou, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and STOKER, JJ.
   STOKER, Judge.

This is a separate suit for penalties and attorney’s fees under LSA-R.S. 22:657. The suit was filed following a suit for and disposition of a claim under a group long term disability policy issued by Aetna Casualty and Surety Company (Aetna). In that suit James Michael Foret (Foret) claimed from Aetna payment of monthly benefits because of disability resulting from accidental injury which occurred while he was working in his employment. The matter has been before this court on appeal on two previous occasions. Foret v. Aetna Life and Casualty Co., 337 So.2d 676 (La.App. 3rd Cir. 1976) and Foret v. Aetna Life and Casualty Company, 357 So.2d 19 (La.App. 3rd Cir. 1978). The facts and procedural history with which we are now involved are stated in detail in the reports of those cases.

The first appeal, 337 So.2d 676, was brought by Aetna from a trial court judgment which awarded Foret disability benefits in the amount of $453.44 per month. The trial court denied Foret’s claim for penalties and attorney’s fees. When Aetna appealed Foret neither appealed nor answered the appeal. We affirmed the trial court’s finding of disability but we remanded the case to the trial court for a redeter-mination of the amount of the payments due because the record was inadequate on the issue of plaintiff’s wages.

After our action set forth in 337 So.2d 676 the further history of this matter was as stated by us in the second appeal in 357 So.2d 19. We stated the following on page 20 of that opinion:

After appeal, but before trial on remand, Aetna offered plaintiff the amount of benefits which they determined were due. This consisted of $15,057.38 in back payments and $273.03 in future monthly payments. This tender was conditioned upon plaintiff’s ceasing to take any further legal action on remand. Plaintiff rejected the offer.
After trial on remand, judgment was rendered awarding plaintiff $22,957.60 in past due benefits (April of 1972 through February of 1977) and $403.03 per month from March, 1977, until termination of the disability or age 65. The trial court denied plaintiff’s demand for penalties and attorney’s fees.
Plaintiff has perfected a devolutive appeal contending that the trial court erred in two respects, viz.: (1) by failing to award penalties and attorney’s fees, and (2) by failing to provide legal interest on the amount of the judgment.

Plaintiff Foret’s claim for penalties and attorney’s fees at this point was grounded, not on the original claim of unreasonableness on the part of the insurer, but on the assertion that Aetna became unreasonable when it did not pay undisputed benefits while the suit was pending trial on remand. Plaintiff relied on Chivoletto v. Johns-Manville Products Corporation, 330 So.2d 295 (La.1976). We did not consider the merits of plaintiff’s claim for penalties and attorney’s fees on the grounds asserted in the second appeal because we held that the issue was not properly before the court at that time. In our opinion in the second appeal at 357 So.2d 21 we said:

In this case, after the original trial denying penalties and attorney’s fees, plaintiff did not appeal nor did he answer defendant’s appeal. This Court affirmed the judgment of the District Court, finding plaintiff entitled to benefits under the policy, but we remanded the case for the limited purpose of redetermining the amount of benefits to which plaintiff was entitled. No application for writs was made from our original decision. We feel that the judgment denying penalties and attorney’s fees became final and that the demand in plaintiff’s original petition was no longer viable. In order to recover penalties and attorney’s fees on the basis of the insurer’s delay in paying the undisputed amount of the claim, it was necessary that a new demand be made at trial on remand. The record reveals that plaintiff did not amend his petition to plead the additional claim and that his apparent attempt to amend by the introduction of two. letters, representing the insurer’s conditional tender of the undisputed amount, was ineffective.

At this point in the opinion, we quoted the portion of the transcript in which plaintiff’s counsel attempted to broaden the pleadings by introduction into evidence of the two letters, the objection to introduction by defendant’s counsel and the admission of the letters subject to the defendant’s objection. We then stated:

We thus feel that plaintiff’s claim for penalties and attorney’s fees on this new basis is not properly before this court for consideration. Accordingly we express no opinion on the merits of plaintiff’s claim in that regard.

In the second appeal we affirmed the trial court’s denial of penalties and attorney’s fees but amended the judgment with reference to the legal interest issue. Apparently taking our expressions in the second appeal as authorizing a new suit to bring before the court the question of unreasonableness of the failure to pay after remand, the plaintiff did just that. A new but original petition was filed by Foret reciting the above history and making demand for penalties and attorney’s fees. The trial court overruled an exception of res judicata and on trial awarded Foret penalties and attorney’s fees. From this judgment the present appeal was taken by Aetna.

Plaintiff answered Aetna’s appeal asking that the trial court award of $3,000 as attorney’s fees be increased to $15,000. We do not reach various issues raised on appeal including the correctness of the trial court’s failure to sustain the peremptory exception of res judicata. We are of the opinion that the matter is governed by Article 425 of the Louisiana Code of Civil Procedure. This article, LSA-C.C.P. art. 425, reads:

An obligee cannot divide an obligation due him for the purpose of bringing separate actions on different portions thereof. If he brings an action to enforce only a portion of the obligation, and does not amend his pleading to demand the enforcement of the full obligation, he shall lose his right to enforce the remaining portion.

We stated in the second appeal that in order to recover penalties and attorney’s fees on the basis of the insurer’s delay in paying the undisputed amount of the claim, it was necessary that a new demand be made at trial on remand. We noted that plaintiff had failed to amend the petition to plead the additional claim after the remand and his attempt to broaden the pleadings during trial on remand. By failing to amend before trial on ■ remand and later asserting the additional claim by subsequent separate suit, plaintiff attempted to divide his cause of action in contravention of the provisions of LSA-C.C.P. art. 425. Inasmuch as plaintiff could not so divide his demand, we reverse the trial court’s judgment in this matter awarding penalties and attorney’s fees. Plaintiff’s action is hereby dismissed. The costs of these proceedings including the cost of this appeal are assessed to plaintiff-appellee, James Michael Foret.

REVERSED

DOMENGEAUX, J., concurs with brief reasons.

DOMENGEAUX, Judge,

concurring.

I agree with the majority opinion here. I was the author of the second opinion, 357 So.2d 19. Probably, counsel for Foret was misled by the gratuitous language on page 21 of the opinion which formed the last paragraph of Section I on Penalties and Attorney’s Fees. To the extent that that paragraph may have caused this new suit to be fruitlessly filed, I regret its inclusion in the opinion.