text:
    Elizabeth PARR et al., v. Jake VICARI, Sr., et al. Jake VICARI, Sr., et al. v. UNITED STATES FIDELITY AND GUARANTY COMPANY et al.
    Nos. 14085, 14086.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1981.
    Bruce C. Waltzer, New Orleans, for plaintiff-appellant in case no. 14085, for plaintiff-appellee in case no. 14086.
    Clint L. Pierson, Jr., Covington, John N. Gallaspy, Bogalusa, R. K. Christovich, and Paul G. Preston, New Orleans, James Armstrong, III, Covington, for defendant-appel-lee in case no. 14085, for defendant-appellant in case no. 14086.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   CHIASSON, Judge.

These consolidated suits arise from a head-on collision involving two cars on U. S. Highway 190 near Covington, Louisiana. Lennard Parr driving a 1966 Ford Mustang was killed in the accident while Jake Vicari, Jr. driver of the 1967 Chevrolet Super Sport along with his two sisters were injured.

On the morning of April 15, 1977, Len-nard Parr was on his way to Covington High School with Mark Penton, a high school friend. The Parr vehicle was proceeding in a northerly direction on U.S. 190 as it approached the entrance of River Forest Subdivision. Vicari was proceeding in a southerly direction towards the City of Cov-ington on U.S. 190 transporting his sisters to school. The collision occurred about 8:15 in the morning on the shoulder of the northbound lane of traffic.

Parr’s parents, Elizabeth and Lawrence Parr, Jr., filed suit against Jake Vicari, Sr., individually and as administrator and natural tutor of his son, Jake Vicari, Jr.; Highland Insurance Company, Vicari’s liability insurer; and United States Fidelity and Guaranty Company (USF&G), the Parr’s uninsured motorist carrier. Vicari reconvened against the Parrs and the two insurance companies for his son’s injuries and for his property damages. Aetna Insurance Company intervened in the matter as the workmen’s compensation carrier for Jake’s Body Shop, which had paid the medical bills incurred by Jake Vicari, Jr.

Vicari next filed a separate suit for the injuries sustained by his daughters against USF&G, the liability insurer of Lawrence Parr; Highland Insurance Company, Vica-ri’s uninsured motorist carrier; and Lawrence Parr, individually and as administrator of the estate of his son, Lennard Parr. The two suits were consolidated for trial.

The trial court found that the collision occurred in the lane of traffic occupied by the Parr vehicle. It recognized the presumption of negligence that exists when an accident occurs in the other party’s lane of traffic. From the testimony of the witnesses and a photograph taken after the accident the court determined that the presumption of negligence was rebutted and held that the sole cause of the accident was the negligence of Lennard Parr. It dismissed the suit of Elizabeth and Lawrence Parr and granted the reconventional demand of Jake Vicari, Sr. in the amount of $4,000 and assessed court costs against the Parrs and USF&G. In addition, the court granted relief to Jake Vicari, Sr. as administrator of the estate of Mary Vicari, in the amount of $3,454.00. The intervention of Aetna was recognized in the stipulated amount of $3,496.00 against Parr and USF&G.

The Parrs appealed the decision contending the trial court abused its discretion in finding that the collision resulted solely from the negligence of Lennard Parr. They submit that the court disregarded and misconstrued the evidence and failed to apply the appropriate law.

Three victims of the collision testified as well as two school bus drivers, one of whom was behind each of the respective cars.

Vicari testified that the Parr vehicle was completely in his lane of travel. He veered into the northbound lane and headed for the ditch to avoid the oncoming vehicle. Mary Vicari only remembered shouting “Watch out” upon seeing the Parr vehicle in their lane of travel.

Mark Penton, the passenger in the Parr vehicle, was not paying attention to the actions of Parr until he noticed the Vicari car in their lane of traffic right before impact.

Ray Taylor was the school bus driver who was three to four blocks behind the Parr vehicle. He testified that he saw the Parr vehicle veer to the left and assumed that it was going to turn left into the River Forest Subdivision.

Mrs. Rose Sharp, the other bus driver, was behind the Vicari car. She stated that she did not see anything before the accident but only saw the two cars as they collided in the northbound lane.

The trial court construed this testimony with a photograph that was introduced into evidence by the plaintiffs which showed the skid marks left by the Parr vehicle. The marks were measured to be in excess of fifty feet. The court stated:

“It is noteworthy that at the point where the left front skid mark begins to show, the Parr vehicle is within a foot of the center-line. Some 18 feet back from that point the right rear wheel started to show skid marks. Between that point and the point where the left front tire began to skid there is a marked movement to the right. Thus, at the point where the right wheel began to show skid marks it is evident that the left side of the Parr vehicle had to be right at the center-line or over it, moving right. This would tend to buttress Vicari’s testimony. Under these circumstances the Court finds the accident to have been the sole result of negligence on the part of Parr. The circumstances justify Vicari being in the wrong lane of traffic and overcome the rebuttable presumption of negligence. Bailey v. National Surety Corp., 149 So.2d 669 (La.App. 1st Cir. 1963).”

The issue is purely credibility. The series of events leading to the actual impact are sketchy and somewhat in conflict. We find the decision of the trial court to be supported by credible evidence in the record and the decision is not clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La. 1978). See also Foreman v. Kent, 336 So.2d 271 (La.App. 1st Cir. 1976).

Finally, the Parrs complain that the trial court failed to apply the doctrine of last clear chance.

In Mitchell v. Sigrest, 345 So.2d 141 (La. App. 1st Cir. 1977), we stated:

“It appears that last clear chance was developed by the jurisprudence of this state in order to temper the harsh effects of the doctrine of contributory negligence. See Rozas, The Last Clear Chance Doctrine in Louisiana — An Analysis and Critique (Comment), 27 La.L.Rev. 269 (1967). Thus, last clear chance does not come into play until the evidence shows negligence on the part of both the plaintiff and the defendant. Hebert v. Meibaum, 209 La. 156, 24 So.2d 297 (1945); Butter v. State Farm Mutual Automobile Insurance Co., 265 So.2d 252 (La.App. 1 Cir. 1972); St. Amant v. Travelers Insurance Company, 233 So.2d 23 (La.App. 4 Cir. 1970); Malone, Torts, 22 La.L.Rev. 338, 344 (1962).”

The doctrine is inapplicable in this case because Jake Vicari, Jr. was not negligent in any respect.

For these reasons the judgment of the trial court is affirmed at appellants’ costs.

AFFIRMED.


source: Caselaw Access Project

author: WATKINS, Judge.

license: Public Domain

text:
    Melvin L. SANDERS v. Ronnie STUTES et al.
    No. 14092.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1981.
    Otha Curtis Nelson, Sr., Baton Rouge, for plaintiff-appellant Melvin L. Sanders.
    Dan Edward West, Baton Rouge, for defendants-appellees Ronnie Stutes, Hank Woodbum, d/b/a Putt-Putt Golf Course, and The Insurance Co. of North America.
    Before ELLIS, COLE and WATKINS, JJ.
   WATKINS, Judge.

Plaintiff, Melvin L. Sanders, filed this action against defendants, Ronnie Stutes, Hank Woodburn (d/b/a Putt-Putt Golf Course), and Insurance Company of North America, their insurer, seeking recovery of monetary damages for the fracture of his toe allegedly resulting from a fall on the premises of the golf course. Plaintiff presented his evidence at trial before a jury, after which defendants moved for a directed verdict.

In his oral reasons for decision on that motion, the trial judge stated that plaintiff had presented no testimony in support of his allegations as to the negligence of defendants, nor any testimony as to any defect on the premises of the golf course. He concluded that reasonable and fair-minded people could do nothing other than render a verdict in favor of defendants. In explaining the standard for consideration of defendants’ motion, the trial judge specifically referred to the case of Campbell v. Mouton, 373 So.2d 237 (La.App. 3rd Cir. 1979), and also noted that the credibility of the witnesses is not to be considered in ruling on a motion for directed verdict. The trial judge granted defendants’ motion, and judgment was signed accordingly, dismissing plaintiff’s action. Plaintiff has appealed. We affirm.

Plaintiff argues that the trial judge applied an incorrect standard in granting defendants’ motion for directed verdict, and, further, that plaintiff offered sufficient evidence to warrant presentation of the case to the jury for a decision based upon the doctrines of negligence and of strict liability under Louisiana Civil Code Article 2317.

With regard to the issue of the standard by which the trial judge decided defendants’ motion for directed verdict, we note that plaintiff cites in brief the same case (Campbell v. Mouton, supra) cited by the trial judge as setting forth the correct standard. In fact, plaintiff’s only argument on this point is that the trial judge incorrectly applied the correct standard. Therefore, we turn to a review of the evidence to determine whether or not the trial judge erred in granting the motion for directed verdict.

In so doing, we use as our standard that set forth in our decision in Grimes v. Stander, 394 So.2d 1332 (La.App. 1st Cir. 1980), and in the Third Circuit’s decision in Campbell v. Mouton, supra, both of which cited Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir. 1969), which standard we first adopted in Perkins v. American Machine & Foundry Co., 385 So.2d 492 (La.App. 1st Cir. 1980). The following language of Campbell, at 239, is appropriate.

“On motions for directed verdict and for judgment notwithstanding the verdict the Court should consider all of the evidence — not just that evidence which supports the non-mover’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 motions 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 motions should be denied, and the case submitted to the jury.”

The record, taken in the light most favorable to plaintiff, reveals the following circumstances surrounding the fall: On June 27, 1978, plaintiff, his children, and two friends wanted to play miniature golf. Since it had been raining, plaintiff’s daughter telephoned Putt-Putt Golf Course to determine if it was open and found that it was.

While still daylight, they went to the golf course; and plaintiff purchased enough tickets for each of them to play three rounds of golf. The rain had stopped, although it may have drizzled somewhat while the group was playing golf.

The greens of the course are elevated from ground level. Two steps lead down from the green of the eighteenth hole to ground level. Both the green and steps are covered with carpet. They were wet, but there was no standing water on them.

Upon finishing the eighteenth hole of the first round, plaintiff proceeded to ground level, fell, and broke his toe. The fall occurred either on the green itself or on the top step leading to ground level. An inspection of the area by plaintiff’s daughter revealed that the area was wet. Plaintiff himself stated that he did not know what caused him to fall.

Plaintiff argues that he presented sufficient evidence of defendants’ negligence to preclude a directed verdict. He submits that defendants were negligent by breaching their duty to safeguard their patrons from dangers due to the conditions of the golf course. We disagree.

The duty of a proprietor of a business establishment toward his patrons is to exercise reasonable care to keep the premises in a reasonably safe condition, including the taking of reasonable protective measures to keep traveled-areas free of foreign substances. Kavlich v. Kramer, 315 So.2d 282 (La.1974); Bueche v. Alvin Roys, Inc., 348 So.2d 731 (La.App. 1st Cir. 1977). The proprietor is not the insurer of the safety of patrons. Gatti v. World Wide Health Studios, Etc., 323 So.2d 819 (La.App. 2d Cir. 1975); Lott v. Winn-Dixie Louisiana, Inc., 280 So.2d 659 (La.App. 4th Cir. 1973).

Putt-Putt Golf Course is an uncovered sporting area. When it rains, the premises get wet. There was no standing water on the green or steps to be cleared away by defendants. They were wet; but both the green and steps are covered with carpet. Mere moisture after a rain is not a foreign substance. There was no testimony that the area was unusually slick.

Plaintiff offered no evidence that defendants breached their duty to maintain the premises in a reasonably safe condition. Reasonable and fair-minded people could not but conclude that plaintiff’s injury was not caused by the negligence of defendants.

Plaintiff also argues that the case should have been presented to the jury for a decision on the basis of strict liability under Civil Code Article 2317.

The Louisiana Supreme Court recently explained the doctrine of strict liability under that article in Hunt v. City Stores, Inc., 387 So.2d 585 (La.1980).

LSA-C.C. art. 2317 imposes liability on the custodian of a defective person or thing which creates an unreasonable risk of harm to others. According to Loescher [v. Parr, 324 So.2d 441 (La.1975)], the plaintiff must prove “the vice (i. e., unreasonable risk of injury to another) in the person or thing whose act causes the damage, and that the damage resulted from this vice.” 324 So.2d 446-447.

The question before us is whether or not plaintiff offered sufficient proof of a defect (i. e., an unreasonable risk of injury) to warrant presentation of the case to the jury. In other words, viewing the evidence and inferences in the light most favorable to plaintiff, could reasonable and fair-minded people do other than conclude that no defect existed to cause plaintiff’s fall?

The only condition of the green and steps claimed by plaintiff to render them defective is their wetness. No testimony was offered to the effect that the moisture caused the green or steps to be unusually slick. Both the green and steps are covered with carpet; they are not uncovered cement or tile. We do not believe that reasonable and fair-minded people could find that the wet condition of the green and steps constituted an unreasonable risk of injury to patrons of an outdoor golf course.

Having found that reasonable and fair-minded people could not but find that plaintiff’s fall was due neither to defendants’ negligence nor to a defect on the premises, we conclude that they could not do other than render a verdict in favor of defendants. Hence, the trial judge did not err in granting defendants’ motion for directed verdict.

For the foregoing reasons, the judgment of the trial court, dismissing plaintiff’s action, is affirmed. Costs of this appeal are to be borne by plaintiff.

AFFIRMED.


author: LOTTINGER, Judge.

text:
    Sarah J. CARTER v. Reverend Alvin SIMS and Rosalee P. Sims.
    No. 14093.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1981.
    James Murray and Joseph A. Gladney, Baton Rouge, for plaintiff-appellee Sarah J. Carter.
    Albert J. Lord, Zachary, for defendants-appellants Reverend Alvin Sims and Rosa-lee P. Sims.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

This is a suit to rescind the sale of a house and two lots on grounds of lack of capacity, lack of consent and lesion beyond moiety. The plaintiff, 87-year-old Sarah J. Carter, obtained a judgment at trial rescinding the sale. From the judgment ordering the return of the $3,000.00 purchase price stipulated in the act of sale, the defendants, Reverend Alvin Sims and Rosalee P. Sims, have appealed.

THE FACTS

On October 10, 1978, the plaintiff and defendants signed an act of cash sale whereby Mrs. Carter sold her Baton Rouge residence of 20 years to the Simses for a stated consideration of $3,000.00 cash. In the act of sale, Mrs. Carter reserved a usu-fruct for life. In connection with the act of cash sale, Mrs. Carter and the Simses executed an authentic act which stated that as an additional consideration for the property the Simses agreed to care for and supply all the needs of Mrs. Carter for the rest of her life. The Simses also claim they paid Mrs. Carter an additional cash consideration of $2,000.00 for the property but, at Mrs. Carter’s behest, did not list this amount in the act of sale. To prove their contention about the additional cash consideration, the Sims-es introduced a bank statement which showed that a total of $4,620.00 was deposited in the account of Mrs. Carter on October 11, 1978, the day after the sale. They contend that since the evidence showed that Mrs. Carter had no source of income other than a $150.00 per month old age pension and/or a $160.00 per month social security payment, the bank statement and their testimony shows conclusively that a total of $5,000.00 was paid for the property.

A real estate appraiser who was qualified as an expert at trial testified that the house and two lots had a market value of $19,-500.00 at the date of sale. He used the income approach and market value approach to arrive at the value.

Dr. Harry S. Morris, a general practitioner who has treated Mrs. Carter since 1946, testified that the plaintiff was suffering from senile dementia, which results from aging and which causes a decrease in mental faculties. Dr. Morris testified that it was his opinion Mrs. Carter was not capable of understanding all the consequences of the sale in 1978. He said she had the capability to handle perhaps simple affairs but more complex matters could well be beyond her capability.

Mrs. Carter testified that she never wanted to sell her house because she did not have a place to stay. She remembered signing the papers in the lawyers office but she claims she did not know what she was signing. She did not remember the supplemental agreement in which the Simses agreed to take care of her for the rest of her life. She contended that the Simses never paid her anything for the house.

Several long time friends of Mrs. Carter testified that they routinely brought her meals, took her on errands and generally looked after her welfare.

THE TRIAL COURT’S DECISION

After hearing the testimony of Dr. Morris and of Mrs. Carter, the trial court held that the plaintiff lacked the mental capacity to consent to the act of cash sale. The court recognized that a person may be mentally and physically weakened by disease and still be capable of contracting, but he added that “the law extends its sheltering arms over such persons to the extent of scrutinizing contracts made by them and protecting them from imposition, undue influence, improper advantage and other fraudulent conduct by persons dealing with them.” The court further stated that even if it had found Mrs. Carter had the capacity to consent to the contract, it would have nonetheless voided the sale on the grounds of lesion beyond moiety. La.C.C. arts. 1860, 1861(2), and 1863.

On the issue of how much money the plaintiff had to return to the Simses, the court held that only the $3,000.00 listed in the act of cash sale had to be returned because he found the Simses evidence of the other consideration unconvincing. He found the Simses failed to prove their claim by a preponderance of the evidence.

SPECIFICATIONS OF ERROR

On appeal to this court, the Simses contend that the trial court erred: (1) in finding that Mrs. Carter was incapable of consenting to the contract; (2) in finding that the contract should have nonetheless been voided because of lesion beyond moiety; and (3) in failing to require Mrs. Carter to return the total of $5,000.00 as the purchase price the Simses paid for the property.

Because of our finding that the sale should be invalidated because of lesion beyond moiety, we need not address the issues of capacity and consent.

LESION BEYOND MOIETY

Under La.C.C. art. 1861 the sale of an immovable piece of property can be voided by the vendor “if the price given is less than one-half of the value of the thing sold: . .. . ” La.C.C. art. 1862 adds that lesion can only be alleged for sales of corporeal im-movables.

The Simses claim that the alleged $5,000.00 they paid in cash plus the obligation they incurred to take care of Mrs. Carter for the rest of her life were sufficient to take this transaction out of the realm of lesion beyond moiety. They also contend that the plaintiff failed to prove by clear and convincing evidence the fair market value of the property.

After laying the background for his determination of value, the expert real estate appraiser testified unequivocally that the market value of the property at the date of sale was $19,500.00. There was no testimony to contradict or weaken this market value appraisal. The trial court apparently believed the real estate expert, and our thorough review of the testimony convinces us that there was no error made in this respect. Because of the advanced age of Mrs. Carter and the relatively low rental value of the property, the value of the life usufruct along with the value of the Sims-es’ obligation to take care of Mrs. Carter would in no way come near the amount necessary to prevent the sale from being rescinded because of lesion beyond moiety.

As to the Simses’ claim that they should receive $5,000.00 back from Mrs. Carter, their evidence is simply unconvincing that they paid an additional $2,000.00 consideration above and beyond that which was quoted in the act of cash sale. The trial court, who viewed the witnesses directly and evaluated their testimony, did not find that the Simses proved their claim by a preponderance. The fact that the savings account record of Mrs. Carter indicates that on October 11,1978, one deposit of $3,020.00 and another deposit of $1,600.00 were made does not, in our minds, show with the requisite degree of certainty that the Simses paid an additional $2,000.00 consideration for the property. They produced no receipts to substantiate their claim and no other witnesses could or would corroborate their testimony.

Therefore, for the above and foregoing reasons, the decision of the trial court is affirmed. The Simses will pay the cost of this appeal.

AFFIRMED.


author: PONDER, Judge.

text:
    Joseph GRAZIANO v. LALLIE KEMP CHARITY HOSPITAL and Houston General Insurance Company.
    No. 14094.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1981.

      Ron S. Macaluso, Hammond, for plaintiff.
    Charles M. Hughes, Bogalusa, for defendants.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

Defendants appealed from a judgment awarding plaintiff workmen’s compensation benefits for total and permanent disability, penalties and attorney’s fees.

The issues are: plaintiff’s total and permanent disability and the award of penalties and attorney’s fees.

We amend and affirm in part and reverse in part.

Plaintiff sustained a direct inguinal hernia in 1974 during the course and scope of his employment as an ambulance driver for defendant, Lallie Kemp Charity Hospital. Plaintiff’s personal physician, a general surgeon, successfully repaired the hernia but advised plaintiff to refrain indefinitely from heavy lifting to prevent a recurrence. Because lifting patients was a substantial part of plaintiff’s job, he could not return to work. Defendant, Houston General Insurance Company (Houston General), paid plaintiff workmen’s compensation for approximately three and one-half years. A medical report from another physician stating plaintiff’s hernia was no longer disabling precipitated termination of compensation. Prior thereto, however, plaintiff was placed on disability retirement by the State Employee Retirement System because of chronic emphysema. The trial court, relying on the operating physician’s opinion, found plaintiff’s inability to engage in heavy lifting rendered him totally and permanently disabled. Penalties and attorney’s fees were awarded for arbitrary and capricious refusal to pay further benefits.

There is conflicting evidence as to plaintiff’s disability. Dr. Daly, plaintiff’s surgeon, testified plaintiff suffered a huge hernia through a weak and thin fascia. He felt heavy lifting would tear the weak tissue.

Dr. Regan, certified by the American Board of Surgery and a Fellow of the American College of Surgeons, examined plaintiff at the request of defendant Houston General four years after the accident. He testified in deposition that plaintiff had experienced an excellent recovery and should be able to perform his usual job as an ambulance driver. He found no objective evidence for plaintiff’s complaint of pain in his groin.

Dr. Arthur J. Axelrod, certified by the American Board of Surgery, a Fellow of the American College of Surgeons, and a Clinical Associate Professor of Surgery at Tulane University of Medicine, who testified that he participates in approximately fifty hernia repairs per year, testified that he examined plaintiff at defendant Houston General’s request, and found plaintiff’s hernia well healed with no objective reason for pain. Recurrences of hernia are not caused by activities of any sort, but by poor surgical repair, he believes. Noting that plaintiff’s hernia had lasted for nearly five years, he concluded it was a successful repair which should allow plaintiff to return to his full duties as an ambulance driver.

The testimony of the attending physician should ordinarily be accorded more weight than that of a physician who has examined but not treated. An exception occurs where the injury falls within a particular field of medicine; then the testimony of a specialist in that field is entitled to more weight. Mitchell v. Morgan Roofing Co., 118 So.2d 492 (1st Cir. 1960).

The trial court was more impressed by the opinion of the operating physician than by the opinions of the other two eminently qualified surgeons. Although we find a reasonable inference could be drawn from the testimony of Drs. Regan and Ax-elrod that plaintiff is in fact capable of returning to work, we cannot say the conclusion of the court is clearly wrong. Crump v. Hartford Accident and Indemnity Company, 367 So.2d 300 (La.1979).

Defendant contends the court erred in awarding plaintiff statutory penalties and attorney’s fees. The penalty provisions of LSA-R.S. 22:658 are imposed only when the facts show that the insurer’s failure to pay benefits is arbitrary, capricious or without probable cause. Guillory v. Travelers Insurance Company, 294 So.2d 215 (La.1974). When an insurer’s termination of compensation is based upon competent medical evidence, the action is not arbitrary and capricious. Crawford v. Al Smith Plumbing and Heating Service, Inc., 352 So.2d 669 (La.1977). Defendant insurer relied upon the medical report of Dr. Regan. Therefore, the court erred in holding the insurer’s action arbitrary and capricious.

For the above reasons, the judgment of the trial court is reversed insofar as it grants judgment in favor of Joseph Grazi-ano, Jr. against Houston General Insurance Company for twelve per cent (12%) penalties and $2,500.00 attorney fees. The judgment is amended to correct a mathematical error:

Defendants, Lallie Kemp Charity Hospital and Houston General Insurance Company, are hereby ordered to pay plaintiff, Joseph Graziano, Jr., the amount of Sixty-five ($65.00) dollars per week, commencing the 28th day of February, 1980, for 227 weeks or until plaintiff can return to substantially the same work, to be determined by this Court.

In all other respects, the judgment is affirmed. Costs of appeal are to be split equally between plaintiff and defendants.

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

      . LSA-R.S. 22:658:
      “All insurers issuing any type of contract other than those specified in R.S. 22:656 and 22:657 shall pay the amount of any claim due any insured including any employee under Chapter 10 of Title 23 of the Revised Statutes of 1950 within sixty days after receipt of satisfactory proofs of loss from the insured, employee or any party in interest. Failure to make such payment within sixty days after receipt of such proofs and demand therefor, when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty, in addition to the amount of the loss, of 12% damages on the total amount of the loss, payable to the insured, or to any of said employees, together with all reasonable attorney’s fees for the prosecution and collection of such loss, or in the event a partial payment or tender has been made, a 12% of the difference between the amount paid or tendered and the amount found to be due and all reasonable attorney’s fees for the prosecution and collection of such amount. Provided, that all losses on policies covering automobiles, trucks, motor propelled vehicles and other property against fire and theft, the amount of the penalty in each of the above cases shall be 25% and all reasonable attorney’s fees.”


text:
    Charmaine L. CARLINE v. A. C. LEWIS, d/b/a A. C. Lewis Realty Company and Investment Properties of Greater Baton Rouge, Inc.
    No. 14096.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1981.
    William P. Brumfield, Baton Rouge, for plaintiff-appellant Charmaine L. Carline.
    James E. Moore, Baton Rouge, for defendants-appellees, A. C. Lewis d/b/a A. C. Lewis Realty Co. and Investment Properties of Greater Baton Rouge, Inc.
    Robert J. Vandaworker, Baton Rouge, for defendant-appellee Skotty Aluminum Products Co.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

Plaintiff filed suit alleging that a defective window in her apartment allowed the undisturbed entry by an intruder who assaulted her. Additionally she alleges that defendants-lessors warranted that there was a security guard on duty. Named defendants are A. C. Lewis, d/b/a A. C. Lewis Realty Company (Lewis), manager of the apartment complex; and Investment Properties of Greater Baton Rouge, Inc. (Investment Properties), owner. By supplemental petition Skotty Aluminum Products, manufacturer of the window, was added as a defendant.

Lewis and Investment Properties moved for summary judgment arguing that lessors have no legal responsibility for maintenance and repair of locks, hinges or windows. They also claimed that a lessor is not bound to protect the lessee against disturbances caused by persons not claiming any right to the premises. In support thereof they cite La.C.C. arts. 2703 and 2716. In addition they cite Shelp v. National Surety Corporation, 333 F.2d 431 (5th Cir. 1964); Gant v. Flint-Goodridge Hospital of Dillard University, 359 So.2d 279 (La.App. 4th Cir. 1977), writ refused 362 So.2d 581 and 1117 (La. 1978); and Robicheaux v. Roy, 352 So.2d 766 (La.App. 3rd Cir. 1977), writ refused 354 So.2d 207 (La.1978). Summary judgment was granted dismissing plaintiff’s petition against A. C. Lewis, d/b/a A. C. Lewis Realty Company, and Investment Properties of Greater Baton Rouge, Inc., at plaintiff’s costs.

In briefs before this court both sides discuss the duty owed by a lessor to a lessee under various Civil Code articles. However, neither side discusses the allegation made by plaintiff that the defendants-lessors warranted that there would be a security guard on duty. In answer to an interrogatory, defendants Lewis and Investment Properties gave the name of an individual who is purportedly the security guard at the apartment. We find a genuine issue of material fact as to whether there was a security guard in the employ of the defendants and, if there was, whether he was properly performing his duty. La.C.C.P. art. 966 is clear that a summary judgment shall be rendered only if “there is no genuine issue as to material fact.” We find a genuine issue of material fact and are compelled to reverse.

Therefore, for the above and foregoing reasons, the judgment of the trial court is reversed, and the ease is remanded for further proceedings consistent with the views expressed hereinabove. All costs of this appeal are to be paid by defendants-appel-lees.

REVERSED AND REMANDED.


author: COLE, Judge.

text:
    Lou Ida WHITE et al. v. BAKER MANOR NURSING HOME, INC. et al.
    No. 14099.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1981.

      Johnnie A. Jones, Baton Rouge, for plaintiffs-appellants Lou Ida B. White, Rosia Lee H. Hutchinson and Shirley Mae J. Bro-adnax.
    R. Michael Caldwell, Baton Rouge, for defendants-appellees Baker Manor Nursing Home and Ms. Kathryn Hoover.
    Before ELLIS, COLE and WATKINS, JJ.
   COLE, Judge.

Plaintiffs Lou Ida B. White, Rosia Lee H. Hutchinson, and Shirley Mae J. Broadnax, filed this civil action seeking recovery of monetary damages for defamation. They named as defendants Baker Manor Nursing Home, Inc. and Kathryn E. Hoover, an employee of the nursing home. Plaintiffs allege in their petition that defendants discharged them from employment with the nursing home under defamatory circumstances by submitting to the Louisiana Department of Employment Security (LDES) a “Separation Notice Alleging Disqualification” for each plaintiff. The notices stated the employees were “discharged for suspicion of theft of Nursing Home property.” Plaintiffs further allege the accusations were made without the necessary precautions to ascertain the truth thereof and were made in reckless disregard of their falsity.

Defendants filed an answer to the petition, asserting the defenses of privileged communication and absence of publication. They then filed a motion for summary judgment, supported by the affidavit of Alfred S. Lauret, an employee of LDES, and by the deposition of defendant Hoover. Plaintiffs responded to the motion by an opposition in verified form, setting forth only legal and factual conclusions, but specifically asserting plaintiffs had reasons to believe the communications complained of were made with malice or ill will. The trial court granted defendants’ motion and dismissed plaintiffs’ case at their cost. Plaintiffs appealed.

Summary judgment is proper if there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. The movant has the burden of affirmatively showing the absence of any genuine issue of material fact. La.Code Civ.P. arts. 966 and 967; Mashburn v. Collin, 355 So.2d 879 (La.1977). Any doubt as to the existence of a genuine issue of material fact is to be resolved against granting the motion. Bonnette v. Century Ready-Mix Corp., 369 So.2d 1201 (La.App. 2d Cir. 1979), writ denied, 373 So.2d 525 (La.1979); Acme Refrigeration of Baton Rouge v. Caljoan, Inc., 346 So.2d 743 (La.App. 1st Cir. 1977).

Plaintiffs submit the trial judge erred in granting defendants’ motion for summary judgment on the ground there exists a genuine issue of material fact as to whether or not defendants acted in good faith and are, therefore, entitled to a qualified privilege for the communications at issue.

A person may enjoy a qualified or conditional privilege in making a statement if it is made in good faith, on a subject in which he has an interest or a duty, and to a person having a corresponding interest or duty. Harrison v. Uniroyal, Inc., 366 So.2d 983 (La.App. 1st Cir. 1978); Toomer v. Breaux, 146 So.2d 723 (La.App. 3d Cir. 1962). This qualified privilege has been held applicable to communications between employers and LDES in cases similar to the instant action. See Harrison v. Uniroyal, Inc., supra; Boyd v. Community Ctr. Credit Corp., 359 So.2d 1048 (La.App. 4th Cir. 1978). In Harrison v. Uniroyal, Inc., supra, we stated a finding that the employer honestly believed, and had reasonable grounds for believing, the truth of the communication was implicit in a finding of good faith. See also Cormier v. Blake, 198 So.2d 139 (La.App. 3d Cir. 1967).

At the outset, we note plaintiffs were not accused of theft. No statement was made to that effect. Instead, it was said plaintiffs were “discharged for suspicion of theft.” The question then is whether or not Ms. Hoover, under the circumstances, had reasonable grounds for suspecting plaintiffs were the ones who had been taking the property of the nursing home. We cannot expect objective evidence of whether or not Ms. Hoover honestly believed the truth of her assertion. “Suspicion,” being a subjective mental state, either existed in the mind of Ms. Hoover or it did not. And, by definition, suspicion of a fact is the antithesis of its truth. Webster’s Third New International Dictionary (1970) defines “suspicion” as “the act or an instance of suspecting: imagination or apprehension of something wrong or hurtful without proof or on slight evidence.” Again, it is described as “the mental uneasiness aroused in one who suspects.” Thus, the good faith requirement to invoke a qualified or conditional privilege in this instance must be measured by the nature of what is at issue, i. e., a mere suspicion.

The deposed testimony of Ms. Hoover, offered in support of the motion for summary judgment, clearly shows toilet paper, light bulbs, washing powder, sheets, pillow cases and other property of the nursing home would disappear almost immediately upon placement for use. Ms. Hoover testified she was unable to find out who was taking the property, the logical inference being she had made an effort to do so. At that point she sought the assistance of counsel who reviewed their business records and indicated the persons he thought she should terminate.

The deposed testimony of Ms. Hoover also shows she knew the plaintiffs from previous employment, had never had any personal problems with any of them, and had even made a political contribution to one of them and was considering that person for a promotion. Certainly, this background does not indicate malice or ill will and Ms. Hoover, at the conclusion of her deposition, specifically denied such motivation at the time she completed the form required by LDES.

It is within the context of many instances of theft and the designation by counsel of plaintiffs as persons who may be responsible, based on a review of business records, that Ms. Hoover acted. While this situation does not afford reasonable grounds for accusing the plaintiffs of theft, we think reasonable grounds are demonstrated for creating in the mind of Ms. Hoover a suspicion. It does indeed fulfill the state of “imagination or apprehension of something wrong or hurtful without proof or on slight evidence.”

We hold there is no genuine issue as to the material fact of good faith necessary for the defense of qualified privilege. Plaintiffs may not rest upon the legal and factual conclusions alleged in their pleadings. They failed to set forth specific facts showing there is a genuine issue of good faith for trial. Absent specific facts, the documentation on this point offered by defendants in support of their motion is sufficient. La.Code Civ.P. arts. 966, 967; Badeaux v. East Jefferson Gen. Hospital, 364 So.2d 1348 (La.App. 4th Cir. 1978).

The record also supports the requirement that movers be entitled to judgment as a matter of law. La.Code Civ.P. art. 966. Defendants have affirmatively established not only good faith but have also established the other requisites for classifying the statement as privileged, an interest on the part of the speaker and communication to others with a corresponding interest. In effect, there has been no publication of the statement that plaintiffs were discharged for suspicion of theft. Clements v. Ryan, 382 So.2d 279 (La.App. 4th Cir. 1980). See also, Cangelosi v. Schwegmann Bros., Etc., 390 So.2d 196 (La.1980); La.R.S. 23:1660.

As in the instant case, the statements at issue in Clements v. Ryan, supra, concerned suspicion of theft by defendant’s employee. The Court found plaintiff failed to prove defendant lacked good faith or that the communications were made to anyone other than those having a common interest in the matter. The statements, therefore, were privileged since all three requirements for privilege were present: good faith, an interest on the part of the speaker, and communication to others with a corresponding interest. The Court then concluded plaintiff had failed to prove “any publication ... to anyone not legally privileged to receive such communications.”

For the foregoing reasons, we find the trial court was correct in granting defendants’ motion for summary judgment. Appellants are cast for all costs.

AFFIRMED.


text:
    FIDELITY NATIONAL BANK OF BATON ROUGE v. Donald G. REYNOLDS and Donald G. Reynolds, Jr.
    No. 14100.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1981.
    Gordon A. Pugh, Baton Rouge, for plaintiff-appellee Fidelity Nat. Bank of Baton Rouge.
    Roy F. Cangelosi, Jr., Baton Rouge, for defendants-appellants Donald G. Reynolds and Donald G. Reynolds, Jr.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

Defendant, Donald G. Reynolds, appealed from a summary judgment in favor of plaintiff, Fidelity National Bank of Baton Rouge. The other defendant did not appeal.

The sole issue is the validity of the judgment in view of plaintiff’s failure to make demand on defendants for principal, interest and attorney’s fees.

We affirm.

Defendants defaulted on two promissory notes and an indebtedness from the use of two credit cards. Plaintiff sued defendants for the principal, interest and attorney’s fees on all indebtednesses.

Appellant contends appellee cannot claim principal, interest and attorney’s fees on the four debts because the only demand was a request to bring the notes current by paying delinquent installments. Citing Chapman v. Capri Construction Co., Inc., 248 So.2d 101 (4th Cir. 1971), appellant claims a debtor must be given notice and an opportunity to pay the entire amount before there is an award of principal, interest and attorney’s fees. Appellant’s claim is without merit. The rights and liabilities of the parties regarding acceleration, notice and attorney’s fees are those contained in the contract, which is the law between the parties. LSA-C.C. Art. 1901. Plaintiff must prove amicable demand for attorney’s fees only when the agreement states that attorney’s fees will be due if it is “necessary” to employ an attorney to collect the amount due. Mclnnis-Peterson Chevrolet, Inc. v. Riles, 333 So.2d 313 (1st Cir. 1976). The note in the Chapman case provided for acceleration at the option of the holder but did not have the words “without demand”. The contract in the instant case provides for acceleration of the debt without demand upon default and for payment of attorney’s fees for collection. There is no requirement that plaintiff prove the necessity for hiring an attorney.

For the above reasons, the judgment of the trial court is affirmed at appellant’s costs.

AFFIRMED.

      . Both promissory notes provide in part:
      “Failure to pay any installment of this indebtedness at its maturity shall, at the option of the holder of this note, without demand or putting in default cause all unpaid installments to become at once due and exigible. The makers, endorsers, sureties, each of them waive presentment for payment, demand, protest, notice of protest, and notice of non-payment of this note; and consent to any and all extensions of payment. In the event of failure to pay this note or any installment thereof at maturity, and of the same being placed in the hands of an attomey-at-law for collection the makers, endorsers and sureties agree, in solido, to pay, in addition to principal and interest, as attorney’s fees twenty-five per cent additional on principal and interest.”
      The credit card agreements provide in part:
      “This agreement shall terminate and all amounts hereunder shall become immediately due and payable without demand upon Cardholder’s failure to make any payment required hereunder or to perform any other obligations set forth herein, or in any Sales Draft or Cash Advance Draft. Cardholder agrees to pay all reasonable costs of collection, including reasonable attorney fees hereby fixed at 25% of the balance due, both principal and interest, together with court costs and other unlawful charges incurred in connection with collecting Cardholder’s indebtedness to Bank in the event of default.”


author: COVINGTON, Judge.

text:
    In the Matter of the SUCCESSION OF Melvin L. AUGUSTUS.
    No. 14101.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1981.

      Hamlett D. May, Baton Rouge, for apel-lee Maggie Augustus.
    Walton J. Barnes, Baton Rouge, for appellants Marguerite Anderson and Lillian Louise Augustus Thompson.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   COVINGTON, Judge.

This proceeding involves the validity of a statutory will. Melvin L. Augustus, the decedent, died on June 23, 1978, in Baton Rouge, Louisiana, where he was domiciled. A statutory will dated October 24, 1967, was probated on June 30, 1978, by the District Court and Maggie Augustus, the decedent’s wife, was confirmed as testamentary executrix in accordance with'the terms of the will.

Thereafter, on September 15, 1978, Mrs. Augustus filed a rule in opposition to a purported later will of the decedent, dated April 3, 1978 which rule ordered that the later will could only be probated upon a contradictory hearing.

Then, on February 15, 1979, Marguerite Anderson, sister of the decedent, filed a petition to probate a photocopy of a purported original will dated April 3, 1978. The petition alleged that the Notary Public before whom the will was executed had made a photocopy of the original will and had mailed the original to the law offices of the attorney representing the proponents of the 1978 will, but that the original document was lost in the mail. The copy purports to be statutory in form and purports to bear the signatures of Hazel Stewart and Vernon Scott as witnesses, M. L. Augustus as testator and Julius X. Johnson as Notary Public. The petition asked for a rule to show cause against the executrix of the estate of Melvin L. Augustus why the 1978 will should not be probated. Later, Lillian Louise Augustus Thompson, the daughter of the decedent, was substituted as party plaintiff in lieu of Marguerite Anderson.

The contradictory hearing was held; and after taking the matter under advisement, the trial court, assigning written reasons, rendered judgment in favor of Maggie Augustus, widow of the decedent and executrix, defendant-in-rule, and against Lillian Augustus Thompson, daughter of the decedent, recalling, vacating and setting aside the rule. The effect of the judgment was to refuse to admit the 1978 will to probate. The basis for the trial court’s decision is set out in its reasons for judgment as follows:

“The witnesses and notary all testified. Vernon Scott (one of the witnesses) indicated that when he arrived at the notary’s office, decedent had already signed his name and that he and Hazel Stewart (the other witness) and Johnson (the notary) signed the paper thereafter. Of course, the requirements for a statutory will are that the testator, witnesses and notary all sign in one another’s presence. Additionally, the crucial factor comes from an analysis of decedent’s signature. A handwriting expert, N. D. Molligan had access to checks signed by decedent bearing the same date as the alleged lost will. A comparison of the signature specimens appearing on said checks with the signature appearing on the copy of the will clearly lead to the conclusion that the signatures are not the same. The signatures on the check show a stronger and firmer hand than the signature on the copy of the will. The notary testified decedent was nervous and agitated on the date in question but the witnesses Hazel Stewart and Vernon Scott, indicated he was not unusually nervous or distraught. “The burden of proof is upon the mover, and she has failed to carry the burden in the court’s opinion.”

Plaintiff-in-rule appealed. We affirm.

The issues tendered on this appeal are factual in nature and relate to the proper confection and the validity of the will purportedly made in statutory form on April 3, 1978. With respect to appeals involving factual questions, it is well established that appellate courts are to accord great weight to the trial court’s findings which will not be disturbed unless manifestly erroneous. Succession of Zinsel, 360 So.2d 587 (La.App. 4 Cir. 1978), writ denied, 363 So.2d 72 (La. 1978); Succession of Bradford, 130 So.2d 702 (La.App. 2 Cir. 1961); Succession of Barbe, 301 So.2d 711 (La.App. 3 Cir. 1974).

This is an attempt by the plaintiff-in-rule to probate a photocopy of a will in statutory form, the original will having been allegedly lost in the mail. It is, of course, conceded that if a will is accidentally lost, it may be proven if the necessary proof is available. With respect to the burden of proof when, as in the instant case, the probate of the will is opposed ab initio, the proponent of the will bears the burden of proving by a preponderance of evidence that the document was properly confected and valid. Succession of Staggers, 254 So.2d 289 (La.App. 4 Cir. 1971); Succession of Lirette, 5 So.2d 197 (La.App. 1 Cir. 1941).

LSA-C.C.P. art. 2903 reads as follows:

“At the contradictory trial to probate a testament, its proponent bears the burden of proving the authenticity of the testament, and its compliance with all of the formal requirements of law.”

LSA-C.C.P. art. 2932 provides as follows:

“The plaintiff in an action to annul a probated testament has the burden of proving the invalidity thereof, unless the action was instituted within three months of the date the testament was probated. In the latter event, the defendants have the burden of proving the authenticity of the testament, and its compliance with all of the formal requirements of the law.”

These procedural articles show that the burden is on the proponent of the will, the plaintiff-in-rule in the instant case, to prove that the formal requirements of LSA-R.S. 9:2442,2443 have been met. See Succession of Barbe, supra.

LSA-R.S. 9:2442 requires among formalities, that a statutory will be signed by the testator in the presence of a notary and two witnesses, and that the notary and both witnesses sign a declaration to that effect in the presence of the testator and each other. The attestation clause is not self-proving; witnesses in person (or by affidavit) must be produced at the probate to prove the will. LSA-C.C.P. art. 2887; succession of Porche, 288 So.2d 27 (La.1973).

The will in question bears the signature of Julius X. Johnson as notary and the signatures of Hazel Stewart and Vernon Scott as witnesses. At the hearing, Mr. Johnson testified that the original will was lost in the mail when he sent it, without cover letter and not by registered mail, to the attorney for plaintiff-in-rule. In response to questions, he testified that the will was executed in his office; that he, the decedent, and the two witnesses were all in his office at the same time; and that he saw the decedent and the two witnesses sign the will. He was not asked if (and did not testify that) they all signed the will in one another’s presence. He was also not asked if the witnesses saw the testator sign.

Mrs. Stewart testified that she, Mr. Scott, and the decedent signed the will in the presence of each other. She did not testify that (and was not asked if) the notary also signed the will in the presence of the others.

Mr. Scott indicated that when he arrived in the notary’s office, the testator had already signed and that Mrs. Stewart arrived after Scott did, and the witnesses signed the document thereafter.

The decedent’s sister and daughter both testified that the decedent had informed them of the will, that they had seen the original will, and that the photocopy offered for probate was a copy of that original. They, however, were not present when the will was purportedly executed and gave no testimony relative to the confecting of the will.

Defendant-in-rule offered the testimony of the decedent’s accountant, who stated that she personally saw the decedent sign a particular check and identified the signature thereon as his. Mrs. Augustus also identified the signatures on several checks as those of her late husband. The checks were admitted in evidence. They date from August 18, 1970, to April 21, 1978, and include three checks dated April 3,1978, the same date that the will was allegedly executed.

Mr. Nicholas D. Molligan was qualified and accepted as an expert witness on the subject of handwriting analysis. He testified that all of the cheeks were signed by the same person and that this person was not the one who signed the will in two places as “M. L. Augustus.” Another expert on the subject, William J. Wisner, was not able to express an opinion concerning the signing, because the original will was not available. 'Mr. Molligan, however, opined that a valid opinion as to authenticity can be rendered on the basis of a photocopy if significant differences exist between the documents compared. On the other hand, he stated, if no significant differences exist, a conclusion cannot be reached. He testified that, in this instance, the signatures on the checks do bear significant differences from the signatures on the will. He concluded that the person who signed the will was “definitely not the same individual” who signed the checks.

The trial judge observed that:

“A comparison of the signature specimens appearing on said checks with the signature appearing on the copy of the will clearly lead to the conclusion that the signatures are not the same. The signatures on the checks show a stronger and firmer hand than the signature on the copy of the will.”

The trial judge concluded that the signature on the alleged will was not that of the decedent and that the will had not been confected in accordance with the requirements for a will in statutory form since it was not signed by the testator in the presence of the witnesses. Thus, the trial court held the will invalid and decided that it could not be admitted to probate. The record supports this conclusion.

Accordingly, the judgment appealed is affirmed at the appellant’s costs.

AFFIRMED.

      . She alleged, on information, that the purported will was dated March 10, 1978, and was in the possession or under the control of Mrs. William A. Thompson, daughter of the testator.


text:
    SUCCESSION OF Ancil William OTTS, Sr.
    No. 14102.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1981.

      John A. Lieux, Gonzales, for administra-trix and appellant.
    Miriam T. Attaya, Gonzales, for movers, appellees.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

This is a motion to traverse a sworn descriptive list in the Succession of Ancil William Otts, Sr. The children of the deceased filed the motion to traverse claiming among other things that the sworn descriptive list did not include the claims of Mrs. Enid Otts Campbell for $3,000.00, which represents an amount Mrs. Campbell allegedly loaned her brother in 1973 to purchase an automobile, and $60.00 which Mrs. Campbell allegedly paid to purchase oxygen during the deceased’s last illness. The trial court ordered that the sworn descriptive list be amended to show the $3,000.00 and $60.00 claims of Mrs. Campbell.

The executrix of the succession contended at trial and reasserts on appeal that Mrs. Campbell has never instituted suits to enforce these claims, and that her testimony and proof of her claims is inadmissible under the Dead Man’s Statute, La.R.S. 13:3721 and 3722.

Because of our disposition of this matter, we pretermit any discussion and determination of whether the trial court was in error in awarding the claim because Mrs. Campbell was not a party litigant.

After Otts’ death on May 10, 1974, his will was duly probated by the Twenty-Third Judicial District Court on May 14, 1974. Attempts to have the will declared invalid were rejected by the district court. This court affirmed that decision in a per curiam opinion rendered December 27, 1978 (No. 12422 on the Docket of the First Circuit Court of Appeal).

The petition for possession was filed around July 18, 1979, along with a detailed descriptive list of the assets and liabilities of the succession. This motion to traverse was filed May 23, 1980, when the above mentioned claims were first asserted.

Mrs. Campbell claims that in January, 1973, she loaned her brother Ancil $3,000.00 towards the purchase price of a new car. Among the documentary evidence introduced into the record and identified by Mrs. Campbell is a $3,000.00 check drawn by Mrs. Campbell to the order of her brother, dated January, 1973. (The date is penciled in on the check as January 30). This $3,000.00 check was endorsed by Ancil Otts and deposited by Faucheux Chevrolet, Inc., of Gramercy, Louisiana. In connection with the $3,000.00 check is another check drawn by Ancil Otts for the amount of $975.00 and payable to Faucheux Chevrolet. This check is dated January 27, 1973. Both checks are attached to a bill of sale from Faucheux Chevrolet in the amount of $3,975.00, dated January 30, 1973, which shows that Ancil Otts purchased a new car from the dealership for that amount on that date.

Mrs. Campbell testified that, during a visit to her brother in early 1973, she suggested that he buy a car because his old car was in bad condition. At one point during her testimony, Mrs. Campbell said, “I loaned it [the money] to him.” At another point, she testified that when she was discussing the car purchase, Ancil told her that he did not have enough money to buy the car at that time. She said she told him, “I can let you have $3,000.00 if you have the $975.00 for it [the car].”

Mrs. Campbell also testified that she paid $60.00 for oxygen purchased on behalf of her brother during his last illness. Documentary evidence was also submitted in connection with this claim, including a check drawn by Mrs. Campbell to the order of “Woodward Wright Company” in the sum of $69.01. The check is attached to an invoice for the same amount which notes that the oxygen was purchased. Also introduced as documentary evidence is a .refund check by Woodward Wight Big Three, Inc. in the sum of $60.00 payable to Ancil Otts as a refund of the deposit on the oxygen tank. The refund check is dated May 15, 1974, some five days after Otts died.

From the very beginning of the hearing, the attorney for the succession executrix objected to any parol testimony being admitted regarding the claims of Mrs. Campbell because of the provisions of La.R.S. 13:3721. When the attorney made this objection, the trial court indicated that he did not think the statute was applicable because a tableau of distribution had not been filed and, additionally, that written evidence to prove the claim would be introduced. He called the objection “a rather technical point.”

After the evidence was heard, the trial court rendered judgment in favor of Mrs. Campbell and against the succession for $3,060.00, representing the two claims she made. The trial judge found that the claim was timely because there had been no tableau filed and, therefore, no reasonable opportunity for the claim to be asserted prior to the motion to traverse. He also noted that written documentary evidence in the form of a check was introduced into the record and shown to be used to purchase the automobile. The judge apparently believed Mrs. Campbell’s testimony that the $3,000.00 was intended as a loan. He noted that his research on the question of what constitutes a manual gift revealed a general rule that persons are not presumed to dispose gratuitously of their property. He found nothing in the record to indicate any intention by Mrs. Campbell to make a gift to her brother other than the fact that the money was not repaid prior to the brother’s death. Similar reasoning, apparently, was employed to uphold the $60.00 claim for the oxygen.

Under La.R.S. 13:3721 parol evidence can be admitted to prove a claim against the deceased only if a suit or other action is filed within one year of the death of the deceased. The purpose of the provision, as often stated in the jurisprudence, is to prevent stale and unfounded claims from being filed against the succession which could have been refuted by the deceased had he been alive. See, e. g. Succession of DeLoach, 204 La. 805, 16 So.2d 361 (1944); Taylor v. Bocock, 276 So.2d 347 (La.App. 2nd Cir. 1973), writ refused 279 So.2d 205 (La.1973).

Only if the claim against the succession is brought within one year of the death of the decedent are the provisions of La.R.S. 13:3722 applicable. If the one year requirement of Section 3721 is not met, no parol evidence is admissible to prove the claim against the succession. Barron v. Oden, 290 So.2d 386 (La.App. 2nd Cir. 1974). There is no question in this case that Mrs. Campbell’s claim was brought much later than a year after the death of her brother. The purpose of the Dead Man’s Statute would be thwarted if her testimony were allowed to prove her claims against the succession.

The fact that a tableau of distribution in the succession was not filed does not change the result. A succession creditor under La. R.S. 13:3721 is given one year to assert his claim against the succession representative, heirs or legatees. He may file suit or submit his formal claim to the succession representative. See La.C.C.P. art. 3245. If a tableau of distribution or petition to pay debts is filed within a year of death, the creditor may file an opposition if his claim is not listed. If, however, a tableau or petition to pay debts is not filed within a year of death, a creditor must pursue the other means provided under La.R.S. 13:3721 or be barred from using parol testimony to prove his claim. This construction, we feel, conforms with the intent and purpose of the Dead Man’s Statute. The trial court, therefore, was in error in allowing Mrs. Campbell to testify as to her claims.

We must still determine, however, whether the documentary evidence submitted in the record substantiates the claims made by Mrs. Campbell. We find that it does not. The documentary evidence shows only that she wrote a $3,000.00 check to her brother which ostensibly was used in the purchase of a car. Whether this was a loan, a gift, or other disposition is simply unknown. No written promise to pay or other acknowledgement of the debt by the deceased was introduced into the record, presumably because such evidence was not available. See Succession of Dean, 375 So.2d 162 (La.App. 2nd Cir. 1979), writ refused 376 So.2d 1272 (La.1979).

This case is clearly distinguishable from the case of Landry v. Weber, 345 So.2d 11 (La.1977). In Landry, the suit was brought within one year of the death of the decedent, and the claimant and one other creditable witness testified in support of the claim. Other circumstances corroborated the claim. Parol evidence was admissible because the suit was brought within one year. In the case at bar, as noted above, the claims against the succession were not brought until a number of years after the death of the decedent.

The same rationale applies to the claim for $60.00 for oxygen. That claim, too, must be rejected.

Therefore, for the above and foregoing reasons, the decision of the trial court is reversed. The appellee-executrix will pay the cost of this appeal.

REVERSED.

      . La.R.S. 13:3721 provides:
      “Parol evidence shall not be received to prove any debt or liability of a deceased person against his succession representative, heirs, or legatees when no suit to enforce it has been brought against the deceased prior to his death, unless within one year of the death of the deceased:
      “(1) A suit to enforce the debt or liability is brought against the succession representative, heirs, or legatees of the deceased;
      “(2) The debt or liability is acknowledged by the succession representative as provided in Article 3242 of the Code of Civil Procedure, or by his placing it on a tableau of distribution, or petitioning for authority to pay it; “(3) The claimant has opposed a petition for authority to pay debts, or a tableau of distribution, filed by the succession representative. on the ground that it did not include the debt or liability in question; or
      “(4) The claimant has submitted to the succession representative a formal proof of his claim against the succession, as provided in Article 3245 of the Code of Civil Procedure. “The provisions of this section cannot be waived impliedly through the failure of a litigant to object to the admission of evidence which is inadmissible thereunder. As amended Acts 1960, No. 32, § 1.”
      La.R.S. 13:3722 provides:
      “When parol evidence is admissible under the provisions of R.S. 13:3721 the debt or liability of the deceased must be proved by the testimony of at least one creditable witness other than the claimant, and other corroborating circumstances. As amended Acts 1960, No. 32, § 1.”


text:
    Louis P. TRENT et al. v. The STATE of Louisiana and the Board of Trustees of the Louisiana State Employees’ Retirement System.
    No. 14106.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1981.
    Rehearing Denied May 18, 1981.
    Writ Denied Sept. 11, 1981.

      Salvador Anzelmo, New Orleans, for plaintiffs-appellees Louis P. Trent, Dominic Grieshaber, Eddie L. Sapir and Charles R. Ward.
    William J. Guste, Jr., Atty. Gen., Donald Ensenat, William T. Reeves, Jr., Asst. At-tys. Gen., Dept, of Justice, State of Louisiana, New Orleans, for defendants-appellants The State of Louisiana and The Board of Trustees of the Louisiana State Employees’ Retirement System.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

This is a suit for declaratory relief filed by several judges of courts of record against the State of Louisiana and The Board of Trustees of the Louisiana State Employees’ Retirement System. From a judgment in favor of plaintiffs, the defendants have perfected this suspensive appeal.

This case involves the Retirement Plan for Judges and Officers of the Court, La. R.S. 13:11 et seq., and the transfer of credit for military service from the retirement system of the City of New Orleans to the Louisiana State Employees’ Retirement System. All of the plaintiffs-appellees are judges who are members of the Retirement Plan for Judges and Officers of the Court, La.R.S. 13:11 et seq.

During the 1976 regular session, the Louisiana Legislature enacted Act 518, La.R.S. 13:11 et seq., creating a contributory or funded retirement system for judges and court officers. Prior to the enactment of La.R.S. 13:11 et seq. the only retirement system for judges in Louisiana was found in the Louisiana Constitution of 1921, Article 7, Section 8.

Judges in office on the effective date of La.R.S. 13:11 et seq. were given the option of continuing in the then existing non-contributory, constitutionally provided retirement plan or becoming members of the new contributory or funded retirement system. To exercise this option a judge had to address a letter to the Board of Trustees of the Louisiana State Employees’ Retirement System within 120 days of the effective date of the act. La.R.S. 13:12 and 14. Act 518 was effective on October 1, 1976. Each of the plaintiffs exercised his option timely.

Judges in office on the effective date of Act 518 were given “credit in the system for service rendered as a judge of any court in this state . .. prior to becoming a member .. . . ” This creditable service was without contribution. It was free. La.R.S. 13:21.

Additionally, creditable service in any other state, municipal, parochial, or other statewide or local retirement system was transferable upon the certification of total service credit and the transfer of the employee and employer contributions. To be effective, the transfer had to be accomplished within 90 days after the date on which the individual addressed his letter to the board advising of the exercise of his option. La.R.S. 13:17.

Each of the plaintiffs, as an employee or official, past or present, of the City of New Orleans was or had been a member of the Retirement System of the City of New Orleans with creditable service therein. This creditable service was certified and the employee and employer contributions were transferred on January 24, 1977. The transfer of this service is not an issue in this case.

On February 17, 1977, the Council of the City of New Orleans adopted Ordinance No. 6264, Mayor-Council Series. This ordinance became effective on February 25, 1977. Acting under the authority of this ordinance each of the plaintiffs proceeded to purchase his military service time according to the formula provided therein. On various dates the Retirement System of the City of New Orleans certified the military service credit and transferred to the Louisiana State Employees’ Retirement System the funds paid by the plaintiffs. The Board of Trustees of the Louisiana State Employees’ Retirement System refused to accept the transfer of military service credit. Hence, this suit for declaratory relief. The trial court reversed the Board’s decision.

ASSIGNMENT OF ERRORS

In appealing the appellants argue that the trial judge erred in holding that:

(1) the action by the New Orleans City Council did not impose an unauthorized financial burden on the Louisiana State Employees’ Retirement System and in holding that Article X, Section 29(B) of the Louisiana Constitution of 1974 did not apply to this case;

(2) all of the plaintiffs-appellees completed the necessary steps under the law and city ordinance to effect a valid transfer of the requested military service credit within the proper time period;

(3) the plaintiffs-appellees and the City of New Orleans complied with the requirements of LSA-R.S. 13:11 et seq. and therefore acted as authorized by law;

(4) the action of the New Orleans City Council was not in contravention of Article III, Section 1(A) of the Louisiana Constitution of 1974; and

(5) the credit for military service under the New Orleans City Ordinance should have been transferred from the city to the state system and also in assuming that both employer and employee contributions were to be paid to the state system as required by LSA-R.S. 13:17.

ERROR NO. 2

Appellants argue that La.R.S. 13:17 grants 90 days from the date of notification of the exercise of the option within which to transfer any creditable service. However, they claim, in the case of Charles R. Ward the attempt to transfer military service credit was made 100 days after he became a member of the state system. This assertion is borne out by the record. La.R.S. 13:17 is clear as to the time allowed to make the transfer, and appellee Ward failed to comply with this provision. Thus, the retirement system board properly refused to accept the transfer.

Additionally, appellants argue that appel-lee Eddie L. Sapir failed to comply with the express provisions of the city ordinance. The ordinance applies to “any former member ... who became a member of the Louisiana State Employees’ Retirement System pursuant to Act 518 of 1976 prior to January 1, 1977 .... ” Judge Sapir became a member of the state system on January 3, 1977. Appellee contends, however, that by attempting the transfer of military service credit for Judge Sapir, the city waived the provision of the ordinance which Judge Sa-pir did not meet. Even if this argument had merit, because of the reasons hereinafter assigned, it is of no great moment.

ERROR NOS. 1, 3, 4 AND 5

In general, appellants argue that under La.R.S. 13:17, judges who elect to become members of the state system can transfer any creditable service which they may have in any other public retirement system at the time of the election to become members. Under La.R.S. 13:14, judges who were in office on the effective date of Act 518 — as were the plaintiffs-appellees — were given 120 days from the effective date of Act 518 to elect to join the state system. Appellants contend that only creditable service owned at the time of the election can be transferred. They argue further that the 90-day provision in La.R.S. 13:17 is merely the time limit allowed to effectuate the transfer.

Stripped to its bare bones, La.R.S. 13:17 simply says that “any person ... who elects ... shall ... have the right to transfer ... his total accredited years of service.” In the framework of the entirety of Act 518, the term “elects” is synonymous with “exercise of option,” as found in La. R.S. 13:14. When a judge exercises his option, he has elected to become a member of the judicial retirement system. At the moment of the exercise of the option or election, he becomes a member and has the right to transfer his total accredited years of service. The term “accredited” means publicly sanctioned or recognized or officially vouched for or guaranteed. Webster’s Third New International Dictionary. Total accredited years of service are years which are owned by the judge in the transferor system and which that system recognizes and for which it is willing to vouch. La. R.S. 13:17 does not speak in terms of years to be credited, but rather in terms of years that are credited. La.R.S. 13:17 also speaks in terms of “leaves or has left” — a judge can transfer the creditable years in the system he “leaves or has left.” It thus seems clear that what the legislature intended, in granting this encouragement to judges or those elected judges to join the contributory system, was that those years of service already owned by the judge could be transferred when he elected to become a member of the retirement system.

Appellees argue that La.R.S. 13:17 gives a judge who makes the election 90 days from the date of election within which to purchase accredited service and to make the transfer. They contend that this 90-day period is one within which a judge can acquire accredited years of service in the transferor system as well as transfer those years of accredited service. We are of the opinion that this is a misreading of the statute. As previously explained, judges have 120 days from either the effective date of the act or from the date of their election to the bench to make their election to join the state system. This fairly lengthy, 120-day period is provided in part to give the judge time to make up his mind whether he wants to become a member of the contributory system, but more importantly to allow judges the time needed to purchase prior governmental service which they are entitled to purchase under the system from which they are transferring. Once the judge makes this election he immediately becomes a member of the state system and is no longer a member of the transferor system. He no longer has a right to purchase service from the transfer- or system to be transferred to the state system. The 90-day time period referred to in La.R.S. 13:17 simply affords sufficient time within which the transferor retirement system and the state system can complete the paper work to effectuate the transfer. Under this interpretation of the retirement statutes, the Board properly refused to accept the military service credit sought to be transferred by the plaintiffs herein because plaintiffs did not own this credit at the time they made their election.

Appellants further argue that the approval of military service credit under the New Orleans ordinance will impose a financial burden on the state system neither contemplated nor authorized by La.R.S. 13:11 et seq. This is so, they assert, because under the New Orleans ordinance the employer portion of the retirement contribution does not have to be paid to the state system. We find merit in the state system’s contention that the transfer is ineffective because no employer contributions are provided for. The New Orleans ordinance explicitly states “that neither the City of New Orleans nor the Retirement System of the City of New Orleans shall make any monetary contribution in connection with the transfer.” Though the ordinance speaks of the employee paying “the employers contribution, if any,” in addition to the prohibition, there is no formula in the New Orleans ordinance providing for payment of the employer’s share, although the ordinance could have easily provided such a formula to allow the employee to pay the employer’s share. This court cannot speculate on what the employer’s share should be in such a case.

Even if the provisions of La.R.S. 13:14 and La.R.S. 13:17 were interpreted to allow an employee to transfer creditable service which he could have bought at the time he makes his election, such an interpretation would provide no comfort to the plaintiffs. The ordinance allowing the purchase of military service credit was not passed until after all of the plaintiffs made their elections in this case.

Although our decision is predicated primarily upon the fact that only creditable service owned by the employee at the time of the election can be transferred, we feel there are some broader considerations which should shape the contours of the type of accredited service which is allowed to be transferred into the state system. In establishing a contributory retirement system for judges and court officers, the legislature expressly stated in the preamble to Act 518 an intent to form “a sound retirement system.” Other language in the preamble alluding to the expensiveness of the prior retirement system suggests that the legislature intended to establish a financially sound retirement system.

The clear intent of the legislature was to allow the transfer of accredited service from a transferor system only when the transferor system itself allowed its employees generally to buy such accredited service in the transferor system. This requirement is evidenced by the provision of La.R.S. 13:17 that requires the contributions of both employees and employers to be transferred. This provision indicates that the legislature contemplated transfer of service which had been purchased by the contributions of both employees and employers. The legislature did not contemplate the transfer of free time, or of time in which both the employee and employer did not contribute.

By allowing the transfer of service only when the service could have been acquired in the transferor system itself, the legislature at least guaranteed that the transferor system could not transfer service credit unless the transferor system itself was willing to take such credit into its own system. Like the state retirement system, other retirement systems are interested in maintaining the financial integrity and actuarial soundness of their systems. The financial integrity and actuarial soundness of any system would be impaired if creditable service were allowed for little or no contribution. If the state system were required to accept creditable service such as that sought to be transferred by the New Orleans ordinance in this case, the state system could be overburdened by creditable service for which little or no money has been contributed, and by creditable service which a local or municipal retirement system itself would be unwilling to allow to its employees generally. Such a result would thwart the intent of the legislature to provide a sound financial retirement system. The legislature certainly did not intend to allow local and municipal retirement systems to provide special service options for select individuals when the local or municipal system itself would never be responsible for the time purchased by the select individuals. For creditable service to be transferable, the service should be able to be purchased by all employees generally in the system seeking to transfer the service.

Therefore, for the above and foregoing reasons, the decision of the trial court is reversed. The appellees will pay the costs of this appeal.

REVERSED.

      . The plaintiffs are the Honorables Dominic Grieshaber, Lambert Hassinger, Walter Marcus, Eddie L. Sapir, Louis P. Trent, and Charles R. Ward.

      . La.R.S. 13:12 provides:
      “A. Any judge or court officer enumerated in R.S. 13:13 who is in office on the effective date of this Part and who does not avail himself of the provisions of this Part by timely exercising the option hereinafter provided, and their surviving spouses, shall retain the right to receive those benefits provided for judges and their surviving spouses in accordance with the constitution and the statutes of this state or by local laws pertaining to the respective political subdivisions of the state heretofore provided.
      “B. No judge or court officer described in R.S. 13:13 who takes office after the effective date of this Part who does not avail himself of the provisions hereof by timely exercising the op'tion hereinafter provided, shall be eligible thereafter to receive any retirement or pension benefits from the state of Louisiana pursuant to or provided by the authority of Section 16 of Article XIV of the Louisiana Constitution of 1974.”
      La.R.S. 13:14 provides:
      “A. Each judge and court officer described in R.S. 13:13 who is in office on the effective date of this Part is hereby granted the option to become a member of the Louisiana State Employees’ Retirement System for a period of one hundred twenty days from said date by electing to avail himself within said time of all the benefits, emoluments, and conditions of said system as presently provided by R.S. 42:541 through R.S. 42:699, and of all benefits, emoluments, and conditions otherwise applicable to said system by the statutory laws of Louisiana, including the provisions of this Part.
      “B. For a period of one hundred twenty days after taking the oath of office, each of such judges and court officers who assume such offices after the effective date of this Part shall have the same option as herein provided for those in office on said date. Credit for service rendered prior to the exercise of said option shall be governed by the provisions of R.S. 13:21A.
      “C. The option granted herein shall be exercised by addressing a letter to the board of trustees of the Louisiana State Employees Retirement System advising said board that the judge or court officer exercising the option accepts membership in the system in accordance with the provisions of this Part.”

      . Dominic Grieshaber on December 8, 1976; Lambert Hassinger on December 27, 1976; Walter Marcus on December 15, 1976; Eddie Sapir on January 3, 1977; Louis P. Trent on December 8, 1976; and Charles R. Ward on December 13, 1976.

      . La.R.S. 13:17 provides:
      “Notwithstanding any other provision of law to the contrary, any person covered by this Part who elects to become a member of the Louisiana State Employees’ Retirement System, shall, for a period of ninety days after the date on which he addresses a letter to the board advising it of such election, have the right to transfer to the Louisiana State Employees’ Retirement System his total accredited years of service from any other state, municipal, parochial, or other statewide or local retirement system which he leaves or has left. Transfer shall be effective upon the certification of total service credit by the retirement system transferring the member to the Louisiana State Employees’ Retirement System. The retirement system transferring the member also shall transfer the employee and employers contributions to the account of the transferee in full to the Louisiana State Employees’ Retirement System.

      . “AN ORDINANCE to amend Chapter 55 of Ordinance No. 828 M.C.S., known as the Code of the City of New Orleans, by adding thereto a new section to be designated as Section 55-30.2 relative to the purchase of credit for prior military service by certain former members of the Retirement System of the City of New Orleans for transfer to the Louisiana State Employees’ Retirement System; to repeal all conflicting ordinances; and otherwise to provide with respect thereto.
      SECTION 1. THE COUNCIL OF THE CITY OF NEW ORLEANS HEREBY ORDAINS that Section 55-30.2 of Chapter 55 of Ordinance No. 828 M.C.S., known as the Code of the City of New Orleans, be and the same is hereby ordained to read as follows:
      ‘SECTION 55-30.2 Purchase of Credit for Pri- or Military Service for Transfer.
      Any former member of the Retirement System of the City of New Orleans who has had at least Two (2) years of creditable service in the System who became a member of the Louisiana State Employees’ Retirement System pursuant to Act 518 of 1976 prior to January 1, 1977 shall be entitled to purchase creditable service from this System for transfer to the Louisiana State Employees’ Retirement System, to a maximum of four (4) years, for the time served on continuous active duty in the Armed Forces, at least one (1) year each tour of duty, regardless of when served, provided that neither the City of New Orleans nor the Retirement System of the City of New Orleans shall make any monetary contribution in connection with the transfer. In order to obtain such credit for transfer, the former member must furnish proof of military service, including dates performed, to the satisfaction of the Board, and must pay into the System, in a lump sum at the time of request for purchase of credit, (4%) in excess of his or her first $100.00 monthly average for each month claimed based on the base pay received at the time of entrance into covered employment plus interest payments of (4%) annually compounded from the date of entrance to the date of purchase of credit for prior military service for transfer together with the employers contribution, if any, in a lump sum at the time of the request for purchase of credit.
      SECTION 2. If any provision of this Ordinance or the application thereof to any person or circumstance is is held invalid, the invalidity does not affect other provisions or applications of the Ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this Ordinance are severable.
      SECTION 3. All ordinances or parts of ordinances in conflict herewith are hereby repealed.” (Emphasis supplied).

      .The date on which each of the plaintiffs’ military service credit was transferred to the Louisiana State Employees Retirement System is as follows: Dominic Grieshaber on March 7, 1977; Lambert Hassinger on March 17, 1977; Walter Marcus on March 7, 1977; Eddie L. Sapir on March 30, 1977; Louis P. Trent on March 7, 1977; and Charles R. Ward on March 22, 1977.

      . As members of the State Employees’ Retirement System appellees are entitled to purchase military service time. See La.R.S. 42:565.


text:
    Frank WILSON, Jr. v. AVIS RENT-A-CAR et al.
    No. 14108.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1981.

      Warren E. Byrd, II, Richard J. Dodson, John Caskey, Baton Rouge, for plaintiff-appellant Frank Wilson, Jr.
    W. Arthur Abercrombie, Jr., Baton Rouge, for defendant-appellee Avis Rent-A-Car System, Inc.
    Bart Eaton, R. Bruce Macmurdo, Baton Rouge, for defendant-appellee General Motors Corp.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

Plaintiff appealed from a judgment dismissing his suit against Avis Rent-A-Car (Avis) and Raymond J. Smothers for damages sustained in a rear-end collision.

The issues are strict liability of defendant Avis and contributory negligence of plaintiff.

We affirm.

Defendant Smothers was operating an automobile rented from defendant Avis Rent-A-Car. He testified the vehicle’s electrical system partially failed, causing the car to stall atop the Mississippi River Bridge on U.S. 190 in Baton Rouge. Plaintiff struck the stalled vehicle from the rear. In dismissing plaintiff’s suit in strict liability against defendant Avis, the court found plaintiff had failed to prove the existence of a defect in the automobile. Smothers did not answer the petition or appear at the trial.

Plaintiff claims Avis as the owner of the stalled vehicle is strictly liable for his damages due to a defect in the automobile. Citing Marquez v. City Stores Co., 371 So.2d 810 (La.1979), he argues the mere happening of an “unusual occurrence” is sufficient to establish that a thing is “defective.” We feel plaintiff’s reliance is misplaced. There the court found the accident could not have occurred absent a defect in the escalator. The nature of the occurrence, a stalled car, is not so unusual that the defect proved itself. (The stalling, if it occurred, could have resulted from numerous causes other than a defect in the vehicle.) Defendant Avis introduced evidence to prove the car was put back into service without repair to the functioning parts of the car. We agree with the court that plaintiff has not proved the car was defective.

The judgment does not contain an explicit dismissal of plaintiff’s suit. However, in a consolidated and simultaneously tried suit, the court rendered judgment against appellant as a joint tortfeasor. Moreover, the costs in this suit were assessed against appellant. The omission of a grant of requested relief in a judgment is a denial thereof. Succession of Kelly v. Schauff, 323 So.2d 243 (1st Cir. 1975).

Upon review of the facts we agree with the court’s conclusion that appellant was contributorily negligent.

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

AFFIRMED.

      . The Supreme Court refused to allow a mechanical application of this doctrine. See Shipp v. City of Alexandria, 395 So.2d 727 (La.1981).


text:
    Clotile White NEWMAN et al. v. Narcille Drouin POLITE et al.
    No. 14109.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1981.
    Rehearing Denied May 18, 1981.
    Writ Denied July 2, 1981.
    Kenneth J. Berke, New Orleans, for plaintiffs-appellees Clotile White Newman, Reuben M. Newman and Ico., Inc.
    Charles S. McGowan, Baton Rouge, for defendants-appellants Narcille Drouin, Webb J. Polite and South Louisiana Production Company, Inc.
    Before ELLIS, COLE and WATKINS, JJ.
   WATKINS, Judge.

Webb J. Polite and Narcille Drouin Polite, husband and wife, brought a possessory action against Reuben M. Newman and Clo-tile White Newman, and Ico, Inc., alleging that the Polites’ possession of a certain portion of a tract of land purchased by them from the Newmans had been disturbed by the filing of record in East Baton Rouge Parish of a mineral lease from the New-mans to Ico. Final judgment was signed on July 16, 1980, recognizing and maintaining the possession of plaintiffs to the subject property, and ordering the Clerk of Court to cancel the said mineral lease “in the event that Newman and Ico do not assert title to the property by proper suit within thirty days of the date this judgment becomes executory.” The Newmans and Ico thereupon filed the present petitory action. Defendants, the Polites, answered, alleging that they had purchased the property from the Newmans. The said defendants also reconvened for damages, alleging that, by recording a mineral lease to Ico, plaintiffs forced defendants to bring a possessory action; then, after defendants had prepared for trial, admitted defendants’ possession. An exception of no cause of action to the reconventional demand was filed by all defendants in reconvention (the Newmans and Ico), which exception was sustained. The Polites have appealed. We affirm.

The reconventional demand seeks:

(1) attorney’s fees for the bringing of the possessory action;

(2) damages for mental anguish, embarrassment and trespass resulting from the recordation of the mineral lease; and

(3) damages arising out of the necessity for the bringing of a possessory action.

Attorney’s fees may be awarded only when specifically provided for by law. There is no legal provision authorizing the awarding of attorney’s fees for the bringing of a possessory action. Furthermore, we have held that attorney’s fees are not recoverable for the bringing of a possessory action. Succ. of Cutrer v. Curtis, 341 So.2d 1209 (La.App. 1st Cir. 1976).

Plaintiffs in reconvention contend that damages were awarded for the recor-dation of instruments constituting a slander of title in LaCroix v. Villio, 123 La. 459, 49 So. 20 (1909). The awarding of damages in that case, we find, had in fact two bases, (1) the recordation of a fraudulent instrument of conveyance, and (2) the cutting out from the public records of the true owner’s instrument of title. In the present case there was no obliteration of instruments from the public record. There was the recordation of a mineral lease, but that instrument could not be characterized as fraudulent. It is common practice for mineral lessees to obtain mineral leases from conflicting title holders. This case is more nearly similar in facts to Smith v. Albritton, 153 La. 507, 96 So. 49 (1923). In that case it was held that damages are never allowed against a defendant in an action for slander of title which defendant has converted into a peti-tory action. The same principle should apply to the present case.

With respect to the allowance of damages for having to institute a possessory action, the holding in Smith v. Albritton, supra, is again applicable. Furthermore, in general, damages are never allowable to a person who is forced to have recourse to the courts to assert his legal rights, with certain exceptions, such as penalty and attorney’s fees in certain limited cases for which statutory provision is made. No statute permits damages for being constrained to bring a pos-sessory action.

Lastly, somewhat as an afterthought, in an argument apparently not made in the lower court, no mention having been made of that argument in transcribed oral reasons for judgment, the Polites contend they are entitled to damages for malicious prosecution. As the original action was brought in the form of a possessory action by the Polites, and as they were responsible for the continued pursuit of that action up to the filing of the petitory action by the Newmans, we cannot see how it could conceivably be argued that an action was maliciously prosecuted against the Polites.

In its ruling dismissing appellants’ reconventional demand for failing to allege a cause of action, we find that the trial court erred in not allowing appellants an opportunity to amend their pleadings, if by so doing they could remove the grounds of the objection pleaded in the peremptory exception. LSA-C.C.P. art. 934.

For the foregoing reasons, we affirm the decision of the trial court sustaining the exception of no cause of action and remand to allow plaintiffs in reconvention fifteen days from date of this judgment to amend their reconventional demand.

Costs of this appeal are assessed against appellants.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

      . Damages were awarded by the Third Circuit for an actual physical intrusion upon plaintiffs land which forced plaintiff to institute a posses-sory action. Trahan v. Frankland, 317 So.2d 298 (La.App. 3d Cir. 1975). However, that case carefully distinguishes between a mere slander of title (as in Smith v. Albritton, supra, which it specifically cites and distinguishes) and an actual physical intrusion, and indicates damages are permitted only in the latter case. The former Smith v. Albritton situation is the case here.