text:
    H. C. HOBBS et al., Plaintiffs-Appellants, v. CENTRAL EQUIPMENT RENTALS, INC., et al., Defendants-Appellees.
    No. 7490.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 1980.
    Rehearing Denied April 25, 1980.

      J. Phil Haney, New Iberia, for plaintiffs-appellants.
    Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell, Herman E. Garner, Jr., Lafayette, Daniel Nail, Napoleon ville, Plauche, Hartley, Lapeyre & Ottinger, Patrick S. Ottinger, Lafayette, for defendants-appellees.
    Before DOMENGEAUX, FORET and SWIFT, JJ.
   FORET, Judge.

The basic facts upon which this lawsuit is based were succinctly set out by the trial court and we take the liberty of quoting therefrom:

“On November 6,1974, the plaintiffs filed this suit against Central Equipment Rentals, Inc., Sam Hance and Bonnie Rose Crawford Hance, seeking $329,811.86, alleging that they were the owners of a two-thirds interest in a mineral lease executed by the St. Martin Land Company on June 20, 1950. They claim that the defendants arranged for the removal of certain property and equipment located on three wells affected by this lease belonging in part to the plaintiffs and in part to the defendants, and converted the materials to their own use, which had a value insofar as the two-thirds interest of the plaintiffs is concerned of the amount claimed.

“The defendants brought into this lawsuit Fred Setoon and Condor Pipe Company but after the trial on the merits, by consent they were dismissed from the case.

“The defendants filed an answer on April 14, 1975, and a reconventional demand alleging that it was necessary to employ certain parties to salvage the three wells and clean them up, and that the defendant paid $19,951.60 for this, as well as $2,024.82 to the tax collector of St. Martin Parish for the 1973 ad valorem taxes, showing that Mrs. Hance, a defendant, was in partnership with the two Hobbs plaintiffs, and she spent that money on their account and should be reimbursed by them in the amount of two-thirds of the money spent.”

The trial court rendered judgment in favor of defendants-appellees granting their reconventional demand and against plaintiffs-appellants, rejecting their claims. From this judgment, plaintiffs have appealed.

The record shows that the two Mr. Hobbs, and the former husband of Mrs. Hance, W. D. Hance, were partners in the operation of three oil wells located on state leases covering the bed of Lake Henderson, Plumb Bob Field, St. Martin Parish. There was no written partnership agreement and no written management or operating agreement between the parties. W. D. Hance was the owner of Central Equipment Rentals, Inc. (hereinafter Central) until his death. W. D. Hance had acquired his Vs interest from Central by virtue of an assignment. Although there is no written evidence of record as to a transfer by Central to W. D. Hance, it is undisputed that the interest was in fact vested in Mr. Hance individually. Upon Mr. W. D. Hance’s death, his interest was inventoried in his succession, and his widow, Bonnie Rose Hance, was placed in possession of the succession. Mrs. Hance later executed a general power of attorney to her son, Sam Hance, authorizing him to conduct her business affairs. In addition, Sam Hance was named as president of Central.

There was an unwritten agreement between these parties similar to, if not identical to, the agreement which existed between Mrs. Hance’s former husband, W. D. Hance and the two Hobbs. Essentially, the agreement was that Mr. Hance was to provide a laborer to work on the wells, in addition to his share of the financial expenditures relating to the operation of the wells. The Hobbs were to maintain the wells and perform any related activities which were required from time to time to keep the well or wells in the proper working condition, the basis for this agreement being the Hobbs’ expertise in this particular area of oil and gas production. Mr. W. D. Hance, on the other hand, was not an expert and had a limited amount of knowledge in this field. The three partners shared equally in any and all profits. As* stated before, the Hobbs brothers performed the physical work on the wells and H. C. Hobbs also drew a salary as a consultant from the partnership for work done on the wells. Only one of the three wells actually produced income for the partnership. The proceeds from the production of the well were deposited into an account and all costs and expenses were drawn on that account. A Mr. Marion Rizzuto was employed by the partnership to keep its records and accounts.

Some time in February of 1973, the producing well ceased production. Subsequent attempts to re-work the well were unsuccessful, and the partners decided to end their joint operations and plug the well. The record shows that Central Equipment Rentals, Inc. had been designated as operator of the well on Department of Conservation records. Chevron Oil Company, the original lessee and assignor of the mineral leases to Central and the Hobbs, subsequently made demands on the lessees, in particular, Sam Hance, to clean, plug and abandon the wells pursuant to their legal obligations set out in the original leases and assignments.

It was agreed between the partners that it would be necessary to perform their legal obligations and to have the wells plugged and abandoned. H. C. Hobbs procured a bid from one W. L. Estis to plug and abandon the wells, dismount the derricks and production platforms, and pull all pilings. The Estis bid was for $49,435.00, plus the salvage rights to all of the recoverable downhole and surface equipment. Based on Mr. Hobbs’ opinion, this bid was rejected by the partners as being too high. This was done at a meeting held in September of 1973.

From this juncture, communications began to deteriorate between the parties, in particular, the Hobbs and Mrs. Hance and/or her representative, Sam Hance. It is undisputed that it was agreed between all parties that each would actively seek bids for the plugging and abandoning of these wells being that the Estis bid was rejected. Complications arose when the Hobbs Brothers informed Mrs. Hance that they were not financially able to and would not contribute to the clean-up operations. That being the case, Sam Hance took it upon himself to find a contractor or contractors to perform the necessary work. Subsequently, Sam Hance entered into contracts with Condor Pipe Company (hereinafter Condor), Setoon Oil Field Contracting Company (hereinafter Setoon), and McBroom Rig Building Service, Inc. (hereinafter McBroom).

Setoon was to pull the pilings, unload the derrick, and pick up flow lines. The bid given by Setoon for their services was $16,-462.60, which bid was ultimately accepted. Condor agreed to assist in the pulling of the pipe and dismantling of the platforms, and their consideration was that they would get the salvage pipe and equipment without any cost to Mrs. Hance other than the cost of the dismantling of the rig, which was done by McBroom for the sum of $3,489.00. Ultimately, Setoon, Condor, and McBroom performed their services pursuant to the contracts they had entered with the Hances, i. e., the wells were plugged and abandoned, surface casing was removed, and some production pipe was salvaged. Up until this point, all parties seemed to be content with the operations as they had been performed. Mrs. Hance was somewhat disgruntled with the Hobbs in that they failed to contribute their share of the expenses in having the wells plugged and abandoned; however, she testified that she had no intention of taking any legal action against them since she felt sorry for them and was willing to consider the matter closed.

Along about this time, the mid-east oil embargo occurred. The price of oil field equipment escalated' swiftly and dramatically. Pipe and casing were in particular demand.

As the trial judge stated:
“The crux of this lawsuit is the contention of Mr. Hobbs that had they been allowed to dismantle the rigs, pull the casing and plug and clean up the lease themselves, they could have sold the salvage for a tremendous amount of money.”

Against this factual background, the trial court rejected the plaintiffs’ claim and granted the Hances’ reconventional demand. The trial court was of the opinion that the salvageable equipment did not have much, if any, value compared to the work that would be necessary to salvage it. We agree. The court went on to base its ruling on several Civil Code articles, which it felt to be applicable, in particular, those relating to quasi-contracts (negotiorum ges-tio) and partnership. We will address appellants’ assignments of error individually in an attempt to clearly delineate the issues in reviewing this matter.

ASSIGNMENT OF ERROR # 1.

Appellants state in their first assignment of error that:

“The trial court erred in allowing the respondent-appellees to present verbal or parol evidence concerning the appellants’ rights and obligations as assignees of two mineral leases to plug, abandon, and salvage three well sites. Since La.R.S. 9:1105, which was'in effect at the time of the alleged conversion and presently under La.R.S. 31:18, the law clearly classifies these rights and obligations affecting mineral leases as incorporeal immovable rights and thus, requiring written instruments or written proof of any transaction involving these rights and obligations under Louisiana Civil Code Article 2276.”

This assignment has merit only if the rights and obligations of the parties are immovable within the contemplation of former LSA-R.S. 9:1105, now LSA-R.S. 31:18.

The contracts in dispute were for the re? moval of equipment from and the plugging of defunct oil wells. The contracts in no way purported to affect any rights or title to the mineral leases per se. The equipment used to extract the oil from the reservoir was not so situated as to be of a permanent nature. The equipment would have to be removed as soon as the wells ceased producing in paying quantities and were abandoned. The contracts involved in this litigation have a single object; the removal of production equipment from and the plugging of non-producing wells.

In Hawthorne Oil and Gas Gorp. v. Continental Oil Co., 377 So.2d 285 (La.1979), our Supreme Court held that a contract to purchase natural gas was a contract to sell a movable, since delivery was to take place after the gas left the wellhead. In the present case, like in Hawthorne, delivery took place upon severance of the thing. As evidenced by the very nature of the contract between the Hances, Setoon and Condor, the equipment was viewed as being movable. The contracts were for the abandoning and plugging of non-producing wells and for the removal of the sub-surface and surface equipment.

A written contract is not a necessary requisite for the sale of movables. LSA-C.C. Article 2441.

Weldon Dufrene, the manager of the Lafayette office of Condor at the time the contract in question was negotiated, testified that:

“. . a lot of wells are plugged over a telephone conversation.”
* * * * * #
“A company may call a company who has done business with a plugging contractor, may call the plugging contractor and plug a well without any contracts or any research being done to the well. They may tell them what’s in the well, what they could retrieve; and everything is verbal and over a telephone conversation and surmise [sic] as that.” (Tr.rec., pg. 886)

In our opinion, these contracts would have at most only an incidental effect on immovable property. Cf. Hawthorne, supra, i. e., removal of certain movable equipment, etc. from immovable property.

The contracts involved had nothing to do with the mineral lease itself, other than being made in furtherance of a mandatory provision therein, which required the lessees to abandon, plug, and remove from the site all equipment, etc. following the abandonment of a well for non-profitable production. Other than that, the various verbal agreements between the parties had nothing to do with leasing, transfer of mineral interest, altering the original lease, or anything else which would affect immovable rights directly or indirectly.

ASSIGNMENT OF ERROR # 2.

Appellants assign as error the trial court’s allowing the defendants-appellees to present parol evidence to modify or alter the terms and persons obligated by the written contract between Condor and defendants-appellees, and the written contract between Setoon and defendants-appel-lees. We find this assignment without merit. The parol evidence rule applies only to actions between the parties to an act or contract and their privies, and not to actions between the parties and third persons. Chenevert v. Lemoine, 161 So.2d 85 (La. App. 3 Cir. 1964), writ refused, 245 La. 1076, 162 So.2d 572 (1964); Ewell v. Giamanco, 139 So. 515 (La.App. 2 Cir. 1932).

We conclude therefore that parol evidence was properly admitted. None of the actual parties to the contracts in question objected to the admission of parol evidence. The only objections lodged were made by the plaintiffs-appellants, and as noted before, they were not parties to the contracts in question.

ASSIGNMENTS OF ERROR # 3 and # 4.

Plaintiffs-appellants allege that the trial court erred in applying Civil Code Articles 2292, 2298, 2868, and 2862 since the acts of the defendants-appellees in contracting to alienate the wellsite equipment went beyond the powers of an administrator and further erred in applying the partnership article since we are dealing with immovable property, thus requiring the partnership to be in writing and any transactions of the partners to be in writing. Appellants cite as authority Civil Code Articles 2836 and 2870. Additionally, appellants allege that the trial court erred in finding that Sam and Bonnie Hance were prudent administrators.

As previously noted, these contracts in question do not involve immovables, but instead involve movable property. For this reason, assignment of error # 3 is without merit.

We think, as did the trial court, that the actions of Mrs. Hance are governed by the Civil Code articles relating to quasi contracts. LSA-C.C. Article 2292 reads:

“Certain obligations are contracted without any agreement, either on the part of the person bound or of him in whose favor the obligation takes place.
Some are imposed by the sole authority of the laws, others from an act done by the party obliged, or in his favor.
The first are such engagements as result from tutorship, curatorship, neighborhood, common property, the acquisition of an inheritance, and other cases of a like nature.
The obligations, which arise from a fact, personal to him who is bound, or relative to him, result either from quasi contracts, or from offenses and quasi-offenses.”

Quasi contracts arise without agreement from the lawful and purely voluntary act of a man from which there results any obligation whatever to a third person, and sometime a reciprocal obligation between the parties. LSA-C.C. Articles 2292, 2293, 2294. The essential elements of quasi contracts are a benefit conferred on the defendant by the plaintiffs, an appreciation by defendant of such benefits, and acceptance and retention by the defendant of such benefits under circumstances such that it would be inequitable for him to retain the benefits without payment of the value therefor. Teche Realty & Investment Co., Inc. v. A.M.F., Inc., 306 So.2d 432 (La.App. 3 Cir. 1975), writ denied, 309 So.2d 681 (La.1975).

Once a quasi contract is formed, Civil Code Article 2298 gives the standard to which the tiegotiorum gestor is held in the management of the affairs of another. LSA-C.C. Article 2298 states in pertinent part:

“In managing the business, he is obliged to use all the care of a prudent administrator.”

We are of the opinion that the Hances did exactly what a prudent administrator would have done. Upon learning that the Hobbs were unable or unwilling to contribute to the clean-up operations, they took it upon themselves to locate contractors with the necessary expertise to perform the cleaning, plugging and abandoning of the wells. This was done at a minimal cost, as can be seen by comparison to the first bid which was submitted by W. L. Estis. Mr. Setoon himself said that had he known beforehand that the operation would involve all that it did, he would not have entered the contract with the Hances for the amount of $16,462.60. He testified further that in his estimation he lost approximately $14,000.00 on that operation. We find that the evidence is convincing that it would have been a losing proposition for the Hobbs to have salvaged the equipment themselves. As noted previously, Mrs. Hance was content to pay the entire amount of the cost of the clean-up operations without any- recourse against the Hobbs.

Mrs. Hance was in the position of a partner with regard to the wells in question. LSA-C.C. Article 2868 states:

“When several partners are intrusted with the administration without their duties being pointed out, or when it is not expressed that one shall not be able to act without the other, they may do separately all the acts relating to such administration.”

It is clear from the record that the duties of the partners were not clearly delineated. Each partner was therefore empowered or free to act on behalf of the partnership with regard to the administration of the partnership business. The record shows Mrs. Hance was of the belief that she could expect no help, financial or otherwise, from the Hobbs in having the wells plugged and abandoned. She was therefore empowered to act on behalf of the partnership of her own volition. LSA-C.C. Article 2862 provides that:

“. . .no partner shall be held liable for any loss which has happened in consequence of any thing bona fide done or omitted by him in the legal exercise of his power, either as administrator or partner, although such act or omission should be injudicious and injurious to the partnership.”

Mrs. Hance’s actions were both bona fide and those of a prudent administrator. Not only were they prudent and bona fide, but they were not injudicious or injurious to the partnership. Mrs. Hance acted in what was at the time a very fair manner. For these reasons, assignment of error # 4 is without merit.

ASSIGNMENT OF ERROR # 5.

Plaintiffs-appellants urge in this assignment of error that Central and Sam Hance were not proper parties to this suit. A resolution of this issue is not necessary for the decision of this case. Whether or not Central and Sam Hance are proper parties to this suit is of no moment since the ultimate decision of this Court will be in favor of Mrs. Hance.

ASSIGNMENT OF ERROR # 6.

The final contention of plaintiffs-appellants is that the court erred in finding that they failed to establish the value of the equipment allegedly converted. Again, the resolution of this issue is not pertinent to the case at bar since we have rejected plaintiffs-appellants’ demand and will affirm the judgment of the trial court.

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

All costs herein are assessed to the plaintiffs-appellants.

AFFIRMED.

      . We observe in passing that C.C. Article 2292 apparently contains at least three errors in the English translation of the French text. The word “contracted” in the first paragraph of Article 2292 should be “formed”, and the words “common property” in the second paragraph should be “co-ownership”. See editorial comments under Article 2292 Translation of RCC 1870. See also Dean v. Hercules, Inc., 314 So.2d 430 (La.App. 1 Cir. 1975), reversed on other grounds, 328 So.2d 69 (La. 1976), which held that in the third paragraph an error of translation occurred in that the word “fact” is better translated from the original French “fait” as “act”. In other words, the word “fact” should be “act”.


source: Caselaw Access Project

author: DOMENGEAUX, Judge.

license: Public Domain

text:
    Mairon D. VEULEMAN, Plaintiff-Appellant, v. Thomas L. SIMS and American Hardware Mutual Insurance Company, Defendants-Appellees.
    No. 7499.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 1980.
    Rehearing Denied April 25, 1980.

      Eugene P. Cicardo; Alexandria, for plaintiff-appellant.
    Brame, Bergstedt & Brame, Joe A. Brame, Lake Charles, for defendants-appel-lees.
    Before DOMENGEAUX, FORET, and SWIFT, JJ.
   DOMENGEAUX, Judge.

On March 2, 1976, Mardi Gras or Fat Tuesday, at 11:45 P.M., the Volkswagen driven by plaintiff, Mairon D. Veuleman was stopped at a red light in the inner northbound lane of Johnston Street at its intersection with South College Road in Lafayette, Louisiana, when her car was rammed from the rear by an automobile owned and operated by defendant, Thomas L. Sims. Mr. Sims and his insurer, American Hardware Mutual Insurance Company, were timely sued in tort within one year of the accident date.

Three days after the accident, on March 5th, plaintiff consulted Dr. T. E. Banks, an orthopedic surgeon, complaining of some headaches and slight soreness in the neck and in the left low back area. After x-rays were taken and an examination was made, Doctor Banks diagnosed the injury as a mild cervical and left lumbar strain. He prescribed oral medications for Mrs. Veule-man to take.

Plaintiff next visited Dr. V. F. Chicóla on March 6, 1976. Doctor Chicóla made essentially the same diagnosis as Doctor Banks, but he prescribed pain pills, muscle relaxants, and a program of physical therapy.

On April 21, 1976, plaintiff sustained a broken wrist when she fell from a shelf on which she was standing. For this injury plaintiff was treated by Dr. D. L. Gamburg, an orthopedic surgeon. Plaintiff is claiming that this accident is causally related to the automobile accident, and that defendants should be made to respond in damages for this injury as well.

Finally, plaintiff visited Dr. Homer Kir-gis on March 2,1977, and again on April 28, 1977. Plaintiff’s’ counsel had arranged these appointments. At these appointments plaintiff complained of headaches, backaches, and dizziness.

Trial was conducted on June 22, 1978. After trial the Court awarded plaintiff a total of $4,145.51 for personal injuries, property damage, and special damages. Both parties filed an application for a new trial, which the Court granted, but only for the limited purpose of rehearing oral arguments. After the reargument the trial court reconsidered the record and again held for plaintiff, but reduced the amount awarded to $3,655.79, disallowing $489.72 previously awarded because the plaintiff was allegedly paid this amount by her insurance company as reimbursement for property damages to her car. From this judgment plaintiff has appealed, listing the following specifications of error, which will be considered separately and in the order listed by plaintiff:

“SPECIFICATIONS OF ERROR
1. The trial court erred in not allowing the plaintiff, MAIRON D. VEULE-MAN, to recover for medical expenses and treatment rendered her by Dr. Homer Kirgis of New Orleans, in the amount of $242.50.
2. The trial court erred in not allowing the fee of Dr. Homer Kirgis in the amount of $200.00 as an expert witness fee.
3. The trial court erred in finding that the plaintiff failed to establish a causal connection between the fall of April 21, 1976 and the accident of March 2, 1976.
4. The trial court erred in allowing only $1,750.00 for the plaintiff’s personal injuries inasmuch as this amount clearly is contrary to the law which has been established by jurisprudence and the evidence of plaintiff’s injuries and permanent damage.
5. The trial court erred in reducing the amount awarded for property damage in the original judgment in the sum of $489.72.”

For the reasons set forth below, we reverse that part of the judgment which reduces the amount awarded as special damages in the original judgment. In all other respects we affirm the judgment of the trial court.

Specification # 1. The Court did not allow plaintiff to recover $242.50 in medical expenses charged by Doctor Kirgis because “Doctor Homer Kirgis did not actually treat plaintiff for her March, 1976, injuries . . .Our review of the record confirms the Judge’s finding, for her injuries sustained in March of 1976, plaintiff was treated by Doctors Banks and Chi-cóla. She last saw Doctor Chicóla on April 30, 1976. She saw Doctor Kirgis for the first time ten months later on March 1, 1977. This appointment with Doctor Kirgis was arranged by plaintiff’s attorney and appears to have been for the purpose of evaluating plaintiff’s condition in preparation for trial rather than to treat it. In fact, Doctor Kirgis “prescribed” the same treatment that the doctor who last saw plaintiff prescribed. We cannot say that the trial court erred in refusing to allow recovery of this item.

Specification # 2. Doctor Kirgis charged plaintiff $200.00 as an expert witness for the taking of his brief deposition. The trial court set his expert fee at $100.00. Counsel for plaintiff asks this Court to increase the amount awarded to $200.00, the fee charged by Doctor Kirgis, arguing that the $100.00 fee awarded is unfair. He offers nothing in support of this argument and acknowledges that the trial court has a broad range of discretion when setting expert witness fees. La.R.S. 13:3666; Wm. T. Burton Industries, Inc. v. Busby, 348 So.2d 1328 (La.App. 3rd Cir. 1977). The trial court is not required to set the fee at the amount charged by the expert deponent. State, Through Department of Highways v. Kornman, 336 So.2d 220 (La.App. 1st Cir. 1976). Therefore, we find the trial judge did not abuse his discretion in setting Doctor Kirgis’ fee at $100.00. We observe that of the three other doctors who testified, the fees of two were set at $107.50 and the other was set at $100.00.

Specification # 3. Plaintiff argues that the March 2, 1976, automobile accident caused her to have momentary blackouts. She claims that she experienced one of these momentary blackouts on April 21, 1976, when she was reaching for a box high in a shed or closet. As a result of the blackout she fell and broke her wrist.

The trial court twice found that there was no causal relationship between the automobile accident and plaintiff’s fall seven weeks later. Although three doctors testified that dizziness could result from the automobile accident she was involved in, none of them testified that the injuries she sustained in the automobile accident were the cause of her fall in the shed. All four doctors who testified, at some point in their respective depositions, indicated that plaintiff’s complaints of dizziness and blackouts either were never communicated to them or were communicated after the second accident. Viewing the medical evidence as a whole, we find the trial judge was correct in concluding that a causal relationship between the two accidents had not been established by plaintiff.

Specification # 4. Plaintiff argues that the total amount of the judgment, $3,655.79, is substantially low. Yet plaintiff offers no alternative amount that should be awarded and concedes that the trier of facts’ quantum award may not be disturbed on appeal unless the record reveals there has been an abuse of discretion. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977); Schexnayder v. Carpenter, 346 So.2d 196 (La.1977). We find no such abuse of discretion here. The evidence establishes that the special damages part of the award fully compensates plaintiff for the medical expenses incurred for treatment of the injuries suffered in the accident, property damage to her automobile, wages lost while recuperating from the accident, and sums expended for the rent of an automobile while her Volkswagen was being repaired.

The preponderance of the evidence also shows that plaintiff’s injuries were mild, required no hospitalization, and were of four to eight weeks in duration. We therefore feel that the award of $1,750.00 to Mrs. Veuleman as damages for her personal injuries is within the acceptable range of the trial court’s discretion.

Although testimony by Doctor Kirgis and the plaintiff indicate that plaintiff was still suffering from effects of the accident almost a year later on March 1,1977, contrary medical testimony by Doctors Banks and Chicóla, the treating physicians, suggest that by the end of April, 1976, plaintiff no longer complained of back or neck problems and had, in fact, returned to work. They were of the opinion that the automobile injuries had run their expected course and no longer caused any problems. The-trial judge did not err in giving greater weight to the testimony of the two treating physicians, who treated plaintiff on at least nine occasions between March 5, 1976, and April 30, 1976, than to the testimony of Doctor Kirgis who did not see plaintiff until a year after the accident and examined her only twice. Gates v. Ashy Construction Company, 171 So.2d 742 (La.App. 3rd Cir. 1965); Malone v. Yager, 295 So.2d 604 (La.App. 3rd Cir. 1974); Williams v. Liberty Mutual Insurance Company, 327 So.2d 462 (La.App. 3rd Cir. 1976).

Specification # 5. We agree with plaintiff that the original judgment should not have been reduced by the trial court after the new trial. In his reasons for judgment, the trial judge obviously considered the affidavit of A. J. Helouin, a claims manager from American Liberty Insurance Company, alleged by defendant to be plaintiff’s automobile collision insurer, when he decided to reduce the amount awarded for special damages. The affidavit was offered as an attachment to an application for a new trial filed by defendants three days after the judgment of the first trial was signed on September 26, 1978. Mr. Helouin verified the payment of $489.72 by American Liberty to plaintiff. After noting the contents of the affidavit, the trial judge went on to say:

“An insurer who is forced to pay under its contract of insurance as the result of the negligence of a third party has a right of action under Article 2315 of the Civil Code for such a loss, without the execution of a conventional subrogation. Aetna Casualty & Surety Company v. Allen, 132 So.2d 240 (La.App. 3rd Cir. 1961). As a result, upon payment to plaintiff for the damage to her automobile, in accordance with its contract to do so, American Liberty Insurance Company became legally subrogated to plaintiff’s right of action for this amount.”

The Aetna case relied upon by the trial court cited several Supreme Court and Court of Appeal cases establishing the above rule. However, the Supreme Court apparently altered the rule in the case of Forcum-James Co. v. Duke Transportation Co., 231 La. 953, 93 So.2d 228 (1957). Therein the Court stated, in unequivocal language:

“It is a basic principle of the law that a tort-feasor is responsible only for the direct and proximate result of his acts and that, where a third person suffers damage by reason of a contractual obligation to the injured party, such damage is too remote and indirect to become the subject of a direct action ex delicto, in the absence of subrogation.
Even the broad language used in Article 2315 of our Code does not justify a departure from the above stated doctrine. Indeed, to permit a person to proceed against a wrongdoer in every instance where such person has sustained damage by reason of his contractual obligation to the injured party would open the door to the prosecution of claims for damages indirectly and remotely connected with the tortious act and encourage a multiplicity of suits from which numerous conflicts of interest might ensue. Parties situated in plaintiff’s position can readily protect themselves by obtaining from the injured person a conventional subrogation of the latter’s rights and, thus, the tort-feasor can be made to respond for the direct and foreseeable consequences of his act in a single suit.”

Two recent cases which bear a close resemblance to the facts of this case impliedly relied on the Forcum-James decision. In Lagrue v. Murrhee, 291 So.2d 844 (La.App. 4th Cir. 1974), the Court awarded plaintiff the full amount of $1,250.00 in property damages for his wrecked vehicle, even though the plaintiff acknowledged receiving the full amount from his insurance company. Defendants urged the Court to construe as a partial legal subrogation the payment of $1,250.00 the plaintiff admitted receiving from his insurer. But the Court held that absent proof of a valid subrogation, either conventional or legal (see C.C. Articles 2160 and 2161), defendants could not question the $1,250.00 property damage award.

In Reynolds v. Hartford Accident & Indemnity Company, 228 So.2d 76 (La.App. 2nd Cir. 1969), the Court of Appeal allowed plaintiff in reconvention the full amount of the cost of repairing his automobile where there was no evidence of a conventional subrogation and the evidence was insufficient to satisfy the requisites for existence of legal subrogation under La. C.C. Article 2161(3). Plaintiff in reconvention admitted to having $100.00 deductible collision insurance and that the insurance company probably paid all of the amount above $100.00. The Court noted, however, that the evidence as to the name of the insurance company on how the claim was handled was vague.

Apart from the affidavit there is nothing in the record of this case to suggest that the plaintiff had collision insurance or that anyone other than the plaintiff paid for the repairs to her automobile. Moreover, no insurance contract was ever offered as evidence nor has the alleged collision insurer ever intervened in this suit.

Even if American Liberty did pay $489.72 to the plaintiff as verified in the affidavit, there is no evidence in the record whatsoever, even when considering the affidavit, to demonstrate that American Liberty secured a legal or conventional subrogation from the plaintiff. In the absence of such proof, and in accordance with the mandate of the Forcum-James decision, we hold that the original award to the plaintiff must be reinstated.

DECREE

For the above and foregoing reasons the judgment of the District Court is amended to increase the amount awarded plaintiff from $3,655.79 to $4,145.51. In all other respects the judgment is affirmed. Costs of this appeal are assessed one-half to plaintiff and one-half to defendants.

AFFIRMED.

      . The parties stipulated that the negligence of Mr. Sims, the defendant, was the sole cause of the accident.

      . The record indicates that the arguments made on the motion for a new trial were accepted by the judge as the oral arguments for the new trial.

      . The trial court judgment allowed only $146.75 for property damage to Mrs. Veuleman’s automobile. As explained under Specification # 5 below, that amount will be increased to $636.47, the actual cost of the repairs.

      . Defendant’s pleading actually was styled “Motion for Summary Judgment and/or Peremptory Exception of No Right of Action and/or Application for New Trial.”

      5. Footnote by the Court of Appeal. In a footnote at this point in the opinion, the Supreme Court added that this new rule, of requiring parties to obtain a subrogation from the injured party, was effective notwithstanding the ruling apparently to the contrary in London Guarantee & Accident Insurance Co. v. Vicksburg, S. & P. R. Co., 153 La. 287, 95 So. 771 (1923). The London case was among those cases cited by Aetna establishing the rule relied upon by the trial court in this case.

      . Even if Mr. Helouin had verified that American Liberty was subrogated to plaintiffs property damage claim to the amount of its payment, we question whether this affidavit could even be considered since it was submitted after judgment was signed and the trial court did not provide for the taking of additional evidence at the new trial. Nothing in the record suggests that defendants lacked the opportunity to prove during trial that plaintiff was not entitled to the full amount of property damages. In fact, defendants allege that all parties were aware of the insurance payment since November 24, 1976, a year and a half before trial.


author: SWIFT, Judge.

text:
    Charles W. GUIDRY, Plaintiff-Appellant, v. Wannie D. DAVIS and Allstate Insurance Company, Defendant-Appellee.
    No. 7504.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 1980.

      Joseph A. Koury, Lafayette, for plaintiff-appellant.
    Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell, Timothy J. McNamara, Michael Harson, Lafayette, for defendant-appellee.
    Before DOMENGEAUX, FORET and SWIFT, JJ.
   SWIFT, Judge.

In this tort action plaintiff-appellant, Charles W. Guidry, appeals a jury verdict, asserting the amount awarded him as damages was grossly inadequate.

The record reveals that on February 7, 1977, Mr. Guidry was stopped in his automobile for a traffic light on South College Road in Lafayette, Louisiana, when his vehicle was struck from the rear by an automobile being operated by the defendant, Wannie D. Davis. There is no issue before this court as to the liability of Davis.

The plaintiff contends that in addition to the physical injuries he sustained in the accident, it was the precipitating cause of his psychiatric problems which manifested in a severe depression in April of 1977 and continued thereafter.

Mr. Guidry sued Davis and also Allstate Insurance Company, his own uninsured motorist carrier. Allstate filed a third party demand against Davis, asserting its subro-gation right to recover all sums paid to plaintiff under its insurance policy. After trial on the merits, the jury awarded plaintiff $2600.00 in damages, exclusive of the prior payment by Allstate of $5,000.00 in compliance with the medical payment provisions of its policy.

The principal question for consideration in this case is whether or not the jury abused its “much discretion” in the amount of damages awarded to Mr. Guidry. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976).

For several years prior to this February, 1977, accident plaintiff had been treated for both physical and mental conditions. In October of 1970 he underwent surgery to fuse a broken neck sustained in an automobile accident. Not long after that his father died. In 1973 Mr. Guidry was hospitalized for a severe depression which his psychiatrist believed was brought on by the loss of his job due to an unauthorized company loan he had made to himself. He was sent to Central Louisiana State Hospital in Pineville, where he remained a short period of time.

Although he told the officer who investigated the accident of February 7,1977, that he was not injured, the following day he consulted Dr. Michael E. Boustany, a surgeon, complaining of a headache and pains in his neck, chest wall and low back. Dr. Boustany’s diagnosis was a severe strain of his cervical and lumbar musculature, with generalized body contusions and later a severe depression. The doctor’s records reflect that while the plaintiff came into his office for heat treatments a number of times prior to March 7, Dr. Boustany examined him only twice thereafter, on February 10 and March 7, before Guidry was hospitalized the following April.

On April 10, 1977, plaintiff was arrested and charged with DWI when his automobile backed into a vehicle driven by Officer Kermit M. Rickert of the Lafayette Police Department, who had pulled him over after noticing his car weaving between lanes. Later that evening Guidry appeared at the hospital and was admitted for treatment because of what he described as being “powerless over alcohol”. This seems to have been a problem for a number of years.

He was hospitalized again in May, 1977, for what was diagnosed as “early pneumonia”, in July for tracheobronchitis and sinusitis, in December of 1977 for a condition known as “meralgia paresthetica”. He was admitted again in September, 1978, for a severe depression. Whether or not any of these were related to the accident is subject to question.

Dr. William E. McCray, Mr. Guidry’s treating psychiatrist since 1972, testified that most of the hospital admissions were made at his request although he was not listed on the hospital records as the admitting physician except the last occasion. Dr. McCray readily acknowledged that it was not known just what caused the plaintiff’s impaired mental condition, but he expressed the opinion that the February, 1977, accident was the primary precipitating cause of his subsequent depression. He also said such a “trigger” usually will cause a reaction or depression to occur “within hours to days”, although he admitted that plaintiff was not hospitalized for severe depression until two months later, on April 10, 1977. Actually, the plaintiff missed work only on February 8, 9, 10, 11 and 24, March 3 and April 1 during the period from February 7 to April 10, 1977. And a fellow employee testified he did his work well both before and after the February 7 accident. He did not notice any difference.

Dr. James D. Cole, a clinical psychologist who examined Mr. Guidry at Allstate’s request, agreed that usually only a few days would pass between an aggravating precipitating factor and the occurrence of such a depression. His opinion was that the February accident did not cause plaintiff’s severe psychotic depressive state, because it would have manifested itself within a week and he could not have maintained the work record that he did. Dr. Cole’s opinion was that Mr. Guidry had a “severe emotional pathology which dates back most of his life.” He believed that the threat to the plaintiff of possible loss of his job because of the D.W.I. in April was probably what triggered the psychotic depression which Dr. McCray diagnosed shortly after he was admitted to the hospital on April 10. In regard to plaintiff’s hospitalization in September, 1978, allegedly due to a deposition being taken in connection with this case, Dr. Cole felt that the magnitude of his condition probably was related to some other factor more recent than the February, 1977, collision. He thought it may have concerned Mr. Guidry’s job as this seemed to have been the precipitating factor in a number of his episodes.

The jury in this case was faced with the task of determining the credibility of the witnesses and the weight to be given their testimony. This applies as well to Mr. Gui-dry on whose truthful history great, reliance necessarily must be placed for the experts to arrive at a proper evaluation of his mental problems. Significant doubts are raised throughout the record insofar as plaintiff’s credibility is concerned. First, he testified on his deposition that he had not been involved in any automobile accident since February 7, 1977. It was only through testimony of Dr. McCray that the police car accident and hospitalization of April 10 were revealed. Mr. Guidry at that time told the admitting nurse he was “hit by a cop from the back”, whereas in truth his automobile backed into the police car after Guidry was stopped for D.W.I. In addition, he tried to explain his deposition testimony by telling the jury at trial that he was not involved in the April 10 accident as he was out of his car when it was struck by the other vehicle. On the other hand, Officer Rickert testified positively that Mr. Guidry was in his car with one foot protruding from its left door at. the time of the collision. Mr. Guidry also denied telling the emergency room physician when he was hospitalized on April 10, 1977, that he had hurt his neck and back more in the accident that night than in the February 7 collision. However, this is clearly reflected in the doctor’s note.

It is also well settled that the jury or trial judge may, and should, assess the credibility of experts who testify at the trial, as well as that of lay witnesses, to determine the most credible and realistic evidence and the fact finder’s determination of the credibility of those witnesses will not be disturbed unless found to be clearly erroneous. Green v. State, Southwest Louisiana Charity Hosp., 309 So.2d 706 (La.App. 3 Cir. 1975); Monette v. Aetna Cas. & Sur. Co., 352 So.2d 423 (La.App. 3 Cir. 1977). After weighing and evaluating all of the medical evidence, and in most cases the lay testimony, relating to the injuries sustained by a plaintiff, the jury or trial judge may accept or reject the opinion expressed by any medical expert, depending upon how he is impressed with the qualifications and the testimony of that expert. Touchet v. Fidelity and Casualty Co. of New York, 264 So.2d 752 (La.App. 3 Cir. 1972).

It is apparent that the jury in this case, in awarding only $2600.00 above the medical expenses previously paid, was of the opinion that the February 7, 1977, accident did not cause or bring about Mr. Gui-dry’s subsequently manifested mental symptoms.

While it is quite possible that we would have reached a contrary result had we tried this ease in the first instance, we certainly cannot say the jury’s obvious conclusion, that the plaintiff’s severe depression was not precipitated by the accident of February 7, 1977, was clearly wrong. From our review of the record we find that there was evidence before the trier of fact which upon its reasonable evaluation of credibility furnished a reasonable basis for the jury’s finding. Since it was not manifestly in error, we are not authorized to disturb this factual finding. Canter v. Koehring Co., 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Evidently, the only injuries proven which the jury found were sustained in the February, 1977, accident were strains of the cervical and lumbar muscles and general body contusions. The treatment prescribed therefor by Dr. Boustany consisted of muscle relaxants, Darvon for pain and diathermy. The doctor actually examined the plaintiff-for these on only three occasions before the April 10 accident, the last being one month post-accident. Then he was referred to a neurosurgeon, Dr. James R. Rivet, who testified that he would not be surprised to find Guidry complaining of his neck and back even without an accident in view of his preexisting spinal condition, but he thought they were related to his accident of February 7, 1977. However, the doctor did not find any bone or disc injury.

Under the evidence the award of $2600.00 may be low, but it is not an abuse of the “much discretion” afforded a jury in these matters. South Central Bell Tel. Co. v. Branch, 360 So.2d 271 (La.App. 4 Cir. 1978); Jolivette v. Safeco Insurance Company, 379 So.2d 1213, (La.App. 3 Cir. 1980).

Accordingly, the judgment of the trial court is affirmed. All costs are assessed against plaintiff-appellant.

AFFIRMED.


text:
    Grace Brouillette ROY et al., Plaintiffs-Appellants, v. Hannon L. ROY, Sr., et al., Defendants-Appellees.
    No. 7509.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 1980.

      Riddle & Bennett, John T. Bennett, Marksville, for plaintiffs-appellants.
    Contois & Johnson, Michael E. Johnson, Marksville, for defendants-appellees.
    Before DOMENGEAUX, FORET and SWIFT, JJ.
   SWIFT, Judge.

On March 22, 1972, Wickliffe Roy, his wife, Eula Juneau, and their only three children (except one which died in infancy), Hannon, Eldon and Lennox Roy, signed an act purporting to be a conveyance to Len-nox of a house and 20 acres of land in Avoyelles Parish, Louisiana, and also all rights of the sons to the estates of their parents at death. Mr. and Mrs. Wickliffe Roy reserved a usufruct in their favor for the duration of their natural lives. The instrument states that the parents received “no monies whatsoever . . . ” and further,

“The heirs to be and or children of the said Mr and Mrs Wickliffe Roy does hereby convey any and all rights they now have, had, or may have in the above described property and each received the sum of $2000.00 cash, in advance if and when; their parents will pass from this life, and in case that the place is to be sold at a later date other then this sale, that is to some one else but the purchaser herein, both; the children that is Hannon Roy and Eldon Roy who have received $2000.00 each will then, have to return the $2000.00 each to; the purchaser Le-nox Roy with 8% int from this date, as they will then and there divide the money in three efen and equal part, and this sale will become null aid void.”

On January 6, 1976, a second act was executed wherein Wickliffe Roy purportedly conveyed to Lennox Roy the same property described in the 1972 deed for a recited consideration of “ . . . $10,000.00 represented by $4000.00 worth of improvements placed on this property and $6,000.00 in cash . . . ” In this instrument the vendor again reserved the usufruct in favor of himself and his wife, who also signed the instrument. It was witnessed by Hannon and Eldon Roy.

Neither of these two acts were recorded in the official records of Avoyelles Parish until May 15, 1978, some 11 days after the recordation of a third deed, dated May 3, 1978, whereby Mrs. Eula J. Roy, then the widow of Wickliffe Roy, purported to sell the same tract to Hannon Roy and the heirs of Eldon Roy, Jack Roy and Connie Roy Roszell.

The plaintiffs, Mrs. Grace B. Roy, Lennox Roy’s widow, and his heirs filed this suit to have the third deed declared a nullity and stricken from the records. It was stipulated prior to trial that this transaction was a simulation and the trial judge ordered it stricken as a nullity. Therefore, that matter is not before this court.

The defendants, Hannon Roy, the heirs of Eldon Roy and the respective wife and husband of the heirs, filed an answer and re-conventional demand seeking to annul and set aside both the 1972 and 1976 deeds as simulations and asking that the property be brought back into the succession of Wick-liffe Roy. Alternatively, they assert the transactions were invalid donations in disguise.

The trial judge ordered the 1972 sale stricken from the records as a simulation without consideration and because the form of the instrument was fatally defective for a donation. He reached the same conclusions as to the 1976 act and also ordered it stricken.

The plaintiffs (defendants in reconvention) have appealed. We affirm in part and reverse in part.

We first consider whether or not the alleged act of sale of 1972 is a simulation. LSA-C.C. Article 2480 establishes a presumption that “ . . . where the thing sold remains in the possession of the seller, because he has reserved to himself the usufruct . . . there is reason to presume that the sale is simulated, and with respect to third persons, the parties must produce proof that they are acting in good faith, and establish the reality of the sale.” Forced heirs have the right to annul absolutely and by parol evidence, the simulated contracts of those from whom they inherit. LSA-C.C. Article 2239. Contracts prohibited by law as being against public policy are null ab initio and may be attacked through parol evidence by any interested party, including a party to the deed. Whitten v. Whitten, 303 So.2d 238 (La.App. 2 Cir. 1974). Circumstantial evidence, as well as direct evidence, is acceptable in establishing a simulation where no consideration was paid even though the deed is in authentic form. Johnston v. Bearden, 127 So.2d 319 (La.App. 2 Cir. 1961).

As we have said, the 1972 instrument specifically states that the vendors received no money as consideration for the sale. Eldon and Hannon appear to have sold to Lennox for $2000.00 each their future rights in their parents’ estates. However, this is prohibited by LSA-C.C. Article 1887, and certainly cannot serve as valid consideration for any party to the act. Plaintiffs have produced no evidence to show any other consideration for the sale and, thus, have not borne their burden of proving the reality of the sale. We therefore conclude the transaction is invalid in this respect. Nor was it a valid donation, because under LSA-C.C. Article 1533, as it provided at that time, a donation wherein the usufruct of the property is reserved by the donor was an absolute nullity. Byrd v. Byrd, 230 La. 260, 88 So.2d 214 (1956); Succession of Delaune, 138 So.2d 41 (La. App. 1 Cir. 1962); Whitten v. Whitten,, supra. Further, the act does not reflect a true donative intent, as shown by the clause therein quoted hereinabove wherein Wick-liffe Roy appears to have reserved the right to sell the property to a third party at some time in the future. We therefore agree with the trial judge that this was a simulated sale and it was properly stricken from the records.

Defendants also contend that the second act of sale executed in 1976 was a simulation. By this deed Wickliffe Roy conveyed to Lennox Roy the same property for a recited consideration of $10,000.00 represented by $4,000.00 of improvements placed on the property and $6000.00 cash.

Plaintiffs objected to the introduction of parol evidence to vary the terms of this authentic act, because, inter alia, Eldon and Hannon Roy were witnesses thereto and thereby “parties” to the transaction. In view of the conclusion we have reached as to the validity of the 1976 deed it is unnecessary for us to address this issue.

Defendants’ contention that the act is a simulation because no consideration was paid was sustained by the trial judge. We agree that in actuality the recited $6000.00 cash was not paid. The record reveals that at the time of the transaction Wickliffe Roy and his three sons exchanged checks so that Lennox at one point handed his father a check from each son in the amount of $2,000.00. However, these were promptly returned to the drawers and never cashed. In fact, Lennox Roy did not pay any money in this maneuver.

There is substantial support though for the plaintiffs’ claim that a number of improvements and repairs were made on the property by Lennox and his family during several years prior to the execution of the deed in 1976. In addition, they paid taxes and insurance premiums on the property. At the trial, the parties stipulated that the expenses for such improvements totaled over $2000.00 and Mrs. Lennox Roy said they also spent $5918.20 more. It is true that the plaintiffs received slightly less than $2,000.00 as the proceeds of a claim under a flood insurance policy covering the property. However, Mrs. Lennox Roy testified that $700.00 of that amount was returned to the other children and the balance was used for repairs and improvements to the property. Undoubtedly, the value of the property was restored or enhanced by such repairs and improvements. Jackson v. Jackson, 175 So.2d 360 (La.App. 2 Cir. 1965). It is well settled that if any consideration is given for the conveyance, no matter how small, it is not a simulation. Quinn v. Stafford, 357 So.2d 628 (La.App. 1 Cir. 1978); Bell v. Bell, 339 So.2d 1333 (La.App. 3 Cir. 1976); Russell v. Culpepper, 344 So.2d 1372 (La.1977). We conclude that the services rendered and expenses incurred by the Len-nox Roy family before the 1976 deed in repairing and improving the property constituted a valid consideration. Consequently, the sale was not simulated.

Alternatively, defendants contend that this transaction was a donation in disguise. Forced heirs may successfully attack a conveyance by their parent of immovable property if they can establish that no price has been paid or that at the time of the sale the price was below one-fourth of the real value of the immovable involved. LSA-C.C. Article 2444. No evidence was introduced as to the value of the subject property, except statements by two of the parties attacking the sale as to the amounts they might have paid for the property if it had been on the market and the title was clear. Neither party was qualified as an expert. Even bona fide offers to purchase are not admissible as evidence to establish value of property. Tennessee Gas Transmission Co. v. Violet Trapping Co., 200 So.2d 428 (La.App. 4 Cir. 1967). Therefore, we believe the trial judge erred in admitting in evidence the self-serving expressions of what these defendants may have been willing to pay for the property. Be that as it may, in our opinion such testimony was insufficient to establish the value of this property at the time of the 1976 sale. Therefore, we are unable to determine whether the price, in this case the costs of improvements and repairs, was below one-fourth the value of the property.

The defendants’ contention that the 1976 sale should be set aside for lesion fails for the same reason.

Having found that a real consideration was given for the property conveyed by the 1976 act, it was a valid sale and the other attacks thereon asserted in this suit are without merit.

While we are reluctant to reverse the trial judge on this predominantly factual issue, from our careful review of the record and particularly the stipulation of the parties as to improvements to the property made by the plaintiffs-defendants in recon-vention we must necessarily conclude his finding that there was no valuable consideration for the 1976 sale was clearly wrong.

Accordingly, we affirm the judgment of the trial court insofar as it decreed that the 1972 and 1978 acts were nullities and ordered them stricken from the records, and also as to the expert witness fees fixed therein. Otherwise, it is reversed and judgment is hereby rendered in favor of defendants in reconvention, Mrs. Grace B. Roy, Terry J. Roy, Sr., and Mrs. Wanda Roy King, and against plaintiffs in reconvention, Hannon L. Roy, Sr., Jack Roy, Jean Moreau Roy, Mrs. Connie Roy Roszeli and Rodney Roszeli, decreeing that the deed dated January 6, 1976, from Wickliffe Roy, et ux. to Lennox Roy, filed for record in Avoyelles Parish, Louisiana, as No. 293259, conveying the following described property:

“A certain parcel of land containing 20 acres, more or less, and being all of the property on the right side of the public road leading from Marksville to Brouil-lette Community in the 2nd Ward of the Parish of Avoyelles, Louisiana, and described as forming part of Section 25, T3N, R4E, on the right side or descending bank of Red River and called the old home place of Wickliffe Roy, together with all buildings and improvements thereon situated and belonging thereto, and described as being bounded on the North by lands now or formerly belonging to Deville, on the South by Sherman, and on the East by also Sherman, and on the West by the public road and/or Red River Levee.”

is a valid sale, subject to the usufruct of Mrs. Eula Juneau Roy, and rejecting the demands of said plaintiffs in reconvention. All costs of this suit and appeal are assessed to the plaintiffs in reconvention.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.

      . Future things may be the object of an obligation.
      One cannot, however, renounce the succession of an estate not yet devolved, nor can any stipulation be made with regard to such a succession, even with the consent of him whose succession is in question.

      . Prior to amendment by Act No. 210 of 1974 it read:
      The donor is permitted to dispose, for the advantage of any other person, of the enjoyment or usufruct of the immovable property given, but can not reserve it for himself.


author: CUTRER, Judge.

text:
    Arthur C. WATSON et al., Plaintiffs-Appellees, v. BIG T TIMBER COMPANY INC. et al., Defendants-Appellants.
    No. 7517.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 1980.
    Donald R. Miller, Shreveport, Herman Lawson, Mansfield, for defendants-appellants.
    Smitherman, Smitherman, Lunn, Hussey & Chastain by John B. Hussey, Jr., Shreveport, Watson, Murchison, Crews, Arthur & Corkern by Daniel T. Murchison, Natchi-toches, for plaintiffs-appellees.
    Before CUTRER, STOKER and LA-BORDE, JJ.
   CUTRER, Judge.

This is a third party demand by Vancouver Plywood Company, Inc. (Vancouver) for recovery of the purchase price of standing timber. Third party defendants are Big T Timber Company, Inc. (Big T Timber), Florida Investments, Inc. (Florida Investments), and Roy E. Thigpen, III. From the trial court’s judgment in favor of Vancouver, and against all third party defendants, in solido, the third party defendants appeal.

Arthur C. Watson and Jack 0. Brittain filed suit against Big T Timber and Vancouver alleging that those defendants had disturbed plaintiffs’ possession by recording a quitclaim deed conveying title to Big T Timber and by recording a sale conveying title to Vancouver. A third party demand was filed by Vancouver against Big T Timber, Florida Investments and Thigpen seeking a return of the purchase price for standing timber. The main demand and the third party demand were tried separately.

Trial of the main demand was held in December 1978. The trial court rendered judgment in favor of Watson and Brittain, recognizing their possession of the tract. Additionally, following the requirements of LSA-C.C.P. art. 3662, Vancouver and Big T Timber were ordered to assert any adverse claims of ownership within 10 days from the date the judgment became executory or be precluded from asserting ownership. There is no contention that such claims have been asserted. This judgment was affirmed on appeal in Docket Number 7163, October 10, 1979.

Trial of the third party demand was held in June 1979. The trial court rendered judgment in favor of Vancouver and against Big T Timber, Florida Investments and Thigpen, in solido.

The record reveals the following undisputed facts: In January 1978, Thigpen, upon examining the Natchitoches Parish tax assessor’s records, determined that a 92.8 acre tract of land in Natchitoches Parish was assessed to an absentee landowner, Mrs. Melba O’Quinn, of New Roads, Louisiana. Thigpen contacted Mrs. O’Quinn by mail and inquired whether she would sell the property to him. Through her attorney, F. Audley Smith, Mrs. O’Quinn responded by letter that she and her co-owner, Harley B. Howcott, were willing to sell the property for $9,000.00 by quitclaim deed without warranty, even as to the return of the purchase price.

In the letter to Thigpen, Smith stated that, in his opinion, title to the property was clouded. He stated that approximately ten years previously, there had been some litigation over the property. Smith pointed out that, for those reasons, Mrs. O’Quinn and Mr. Howcott were willing to sell for substantially less than the market value.

Thigpen accepted the offer from Smith and in March 1978, quitclaim deeds were executed by Mrs. O’Quinn and Howcott, individually, and for another co-owner, Mary Howcott Barnes, to Thigpen, for a total price of $9,000.00. One other quitclaim deed was executed by Stacy Williams to Thigpen for $10.00 “and other considerations.” This deed was executed because of an omission in a deed some years earlier involving the property, which eventually resulted in Williams having an apparent interest in the tract.

Prior to the purchase of the property from Mrs. O’Quinn, Howcott and Williams, Thigpen had a Bossier City attorney by the name of Blondeau examine the title. No title opinion was given, according to Thig-pen, because of a title problem emanating from approximately the year 1880.

Later, Thigpen employed J. Q. Davis, an attorney from Coushatta, Louisiana, to examine the title. It was agreed between them that Davis would examine the title back to only 1920, which was the year Thig-pen’s ancestors in title obtained the property by sheriff’s sale. Thigpen furnished a “brief summary of the history of the property” to Davis.

Davis’ opinion reflected that, as of April 4, 1978, the ownership of the property was in the names of Stacy Williams, Marilyn K. Williams, Melba O’Quinn, Harley B. How-cott and Mary P. B. Howcott Barnes. (Thigpen had not yet recorded his deeds to the property.)

On March 5, 1978, Thigpen contacted Vancouver regarding the property. On March 24th, Thigpen showed William Behan, Procurement Forester for Vancouver, and another Vancouver employee, the tract of land. An offer for the standing timber was made by Vancouver to Thigpen by telephone on March 27, 1978. Two or three days later, Vancouver contacted Don Burk-ett, an attorney from Many, Louisiana, to examine the title to the property. Burkett was also contacted by Thigpen who had obtained his name from Vancouver. Thig-pen and Burkett met at the Natchitoches Parish Courthouse and Thigpen gave Burk-ett a list of documents affecting the property, covering a period of time extending from the sheriffs sale of 1920 up to 1972. This was the same list that Thigpen had furnished to attorney Davis.

At this meeting, a discussion occurred regarding the nature of the deed by which Thigpen would transfer the property as to whether it was to be a warranty or non-warranty deed. Burkett informed Thigpen that Vancouver would require a warranty deed. Thigpen was unwilling to transfer the timber by a warranty deed because he wanted to avoid personal liability. Thigpen then decided to sell the property from himself to Florida Investments, a corporation solely owned by him, from Florida Investments to Big T Timber, also solely owned by him, and from Big T Timber to Vancouver by a warranty deed. Vancouver was informed that Thigpen would sell by a warranty deed through Big T Timber.

On April 3,1978, Vancouver made a written offer of $87,730.64 for all timber 12 inches and larger at 12 inches above the ground. This offer was accepted by Thig-pen on behalf of Big T Timber.

On April 7, 1978, Burkett completed his title examination and informed Vancouver by telephone that it could proceed with the purchase since in his opinion the title was merchantable. The opinion was also put into writing in a letter dated April 7, 1978. The letter stated that the examination did not include matters that might be revealed outside of the public records.

On April 7, 1978, the deeds to Thigpen from Mrs. O’Quinn, Williams and Howcott, and from Thigpen to Florida Investments to Big T Timber were recorded. Vancouver issued a check for $87,730.64 to Big T Timber and received a warranty deed for the timber in return. The deed was subsequently recorded on April 10, 1978.

Thigpen, upon receiving the check at Vancouver’s office in Florien, Louisiana, went to Vancouver’s bank, Guaranty Bank & Trust Company of Alexandria, and received a money order for the amount of the check payable to Big T Timber. On April 10th, Thigpen deposited the funds in Big T Timber’s account at the Bank of Commerce in Shreveport. On April 11th, Thigpen transferred the funds to the account of Florida Investments. On April 13, 1978, Thigpen received a check for $87,730.64 from Florida Investments. On April 13, 1978, the sum of $77,730.64 was deposited in a savings account of Thigpen as agent for Florida Investments. On April 14th, this sum was withdrawn by Thigpen, thus the entire purchase price of the timber went to Thigpen.

The corporate minutes of both corporations, admitted into evidence, reflect that the sale price by Thigpen to Florida Investments was represented by a promissory note of $87,730.00 payable to Thigpen. The sale price for the sale from Florida Investments to Big T Timber was $90,000.00, represented by two promissory notes, one in the amount of $87,730.00 and the other for $2,270.00. The deeds from Thigpen to Florida Investments and from Florida Investments to Big T Timber were quitclaim deeds with no warranty even as to a return of the purchase price.

On April 12,1978, a letter was written by Arthur C. Watson informing Vancouver of the claim of possession by Watson and Jack 0. Brittain. On May 25, 1978, Watson and Brittain filed a possessory action resulting in the third party demand by Vancouver, now before us.

In its third party demand, Vancouver demands that Big T Timber, Florida Investments and Thigpen be held liable, in solido, for return of the purchase price of the timber. The third party demand alleges that Thigpen had personal knowledge of prior litigation concerning the property and that he had knowledge of adverse claims of possession, but did not inform Vancouver of these claims. The demand alleges that Vancouver would not have purchased had it known of the adverse claims and the prior litigation; that Thigpen was attempting to insulate himself from responsibility by conveying the property through Florida Investments and Big T Timber; that these corporations were the alter ego of Thigpen; that in the event Watson and Brittain were recognized as possessors of the property, Vancouver was entitled to recover the purchase price of the timber from Thigpen, Big T Timber and Florida Investments, in solido.

The trial judge made the following findings:

. . the actions of Mr. Thigpen reveal a planned, intentional and deliberate scheme to defraud, deceive, misrepresent and mislead Vancouver Plywood Co., Inc. into purchasing the timber. The Court further finds Mr. Thigpen knew of serious and numerous deficiencies in the title to the 92.86 acres and actively manipulated legal counsel into giving him favorable title opinions, which in fact were not based on full information but were based on limited information released by Thigpen to the attorneys for the specific intention of cheating and promoting a spurious scheme to bilk Vancouver."

The trial judge rendered judgment for $87,-730.64 in favor of Vancouver and against Big T Timber, Florida Investments and Thigpen, in solido.

The issues on appeal are: (1) Whether Vancouver is entitled to recover the purchase price, and if so, (2) whether the corporations are the “alter ego” of Thigpen. Is Vancouver Entitled to Recover the Purchase Price

The appellants (Big T Timber, Florida Investments and Thigpen) argue that Vancouver relied on its own investigation of the public records rather than any misrepresentation by Thigpen, and thus, would not be entitled to recover the purchase price from any of the third party defendants.

We will affirm the judgment of the trial court, but find it unnecessary to pass upon the issue of reliance by Vancouver. Instead, we find that Vancouver is entitled to a return of the purchase price for a breach of warranty.

"Sale of rights to standing timber is considered under the jurisprudence of this state as the sale of an immovable and is thus governed by the Civil Code Articles on immovables.” Marshall v. Armand, 306 So.2d 331, at 335 (La.App. 3rd Cir. 1975).

The deed from Big T Timber to Vancouver was a deed with full warranty. This warranty includes warranty against eviction.

LSA-C.C. art. 2476 provides that:

“The warranty respecting the seller has two objects; the first is the buyer’s peaceable possession of the thing sold, and the second is the hidden defects of the thing sold or its redhibitory vices.” (Emphasis added.)
LSA-C.C. art. 2500 provides that:
“Eviction is the loss suffered by the buyer of the totality of the thing sold, or of a part thereof, occasioned by the right or claims of a third person.”
LSA-C.C. art. 2501 provides that:
“Although at the time of the sale no stipulations have been made respecting the warranty, the seller is obliged, of course, to warrant the buyer against the eviction suffered by him from the totality or part of the thing sold, and against the charges claimed on such thing, which were not declared at the time of the sale. ”

On the main demand by Watson and Brit-tain, the court rendered judgment recognizing their right of possession. The effect of this judgment is to evict Vancouver from the timber, in violation of the warranty of Big T Timber. LSA-C.C. articles 2500, 2501, 2502. Thus, Vancouver has a right to rescind the sale and recover the purchase price for breach of warranty against eviction. See: Halley v. Sellers, 347 So.2d 77 (La.App. 2nd Cir. 1977).

Are the Corporations the “Alter Ego” of Thigpen

The issue remaining to be resolved is whether Big T Timber and Florida Investments are the “alter ego” of Thigpen, thus rendering Thigpen and Florida Investments liable, in solido, with Big T Timber for the breach of warranty.

Vancouver argues that since Thigpen knowingly concealed some facts and revealed only part of which he knew, he was guilty of material misrepresentations. Therefore, the corporate veils of both corporations should be pierced, establishing personal liability on the part of Thigpen.

Circumstances under which the corporate veil will be pierced have been set out in the case of Kingsman Enterprises v. Bakerfield Elec. Co., 339 So.2d 1280 (La.App. 1st Cir. 1976), as follows:

“The general rule that corporations are distinct legal entities, separate and distinct from the individuals who compose them, is statutory in origin and well recognized in the Louisiana jurisprudence. La.C.C. art. 435; Buckeye Cotton Oil Company v. Amrhein. 168 La. 139,121 So. 602 (1929); Texas Industries. Inc, v. Du-puv & Dupuv Developers. Inc., supra [227 So.2d 265 (La.App. 2d Cir. 1969)]; Johnson v. Kinchen. 160 So.2d 296 (La.App. 1st Cir. 1964). Thus, shareholders are not individually responsible for the debts due by the corporation. La.C.C. art. 437; La. R.S. 12:93(B); Texas Industries. Inc, v. Dupuv & Dupuv Developers. Inc., supra.
There are, however, limited exceptions to the rule of non-liability of shareholders for the debts of a corporation whereby the court may ignore the corporate fiction and hold the individual member or members liable. In such situations courts commonly refer to the corporation as the ‘alter ego’ of the shareholder. One such exception to the non-liability rule involves situations where fraud or deceit has been practiced on a third party by the shareholder acting through the corporation. La.R.S. 12:95; Bossier Millwork & Supply Company v. D. & R. Construction
Company, Inc., supra [245 So.2d 414 (La. App. 2d Cir. 1971)].
* * * * * *
“. . . Regardless of the basis for piercing the corporate veil, it is clear that the situation must be viewed with regard to the totality of circumstances in each case. However, it should be kept in mind that in Louisiana the concept of the separation of the corporate entity from its shareholders is the general rule and is firmly established. Because of the beneficial role of the corporate concept, this principle should be disregarded in only exceptional circumstances. Johnson v. Kinchen. supra.

Further, as stated in Giuffria Realty Company v. Kathman-Landry, Inc., 173 So.2d 329 (La.App. 4th Cir. 1965):

“The general rule is that the corporate entity will be disregarded when it is necessary to promote justice or avoid inequitable results. . . .” (See citations therein.)

With these principles in mind, we turn to further evidence in the record. Thigpen was aware of claims against the tract of land when he began his negotiations for the sale of the timber to Vancouver. He did not reveal this information to anyone though he did give some information concerning the history of the property to others. To withhold material information, such as was done here, amounts to an attempt to defraud. F. Audley Smith, Mrs. O’Quinn’s attorney, testified that Thigpen had knowledge that there were claims against the property because he specifically told Thigpen about the previous lawsuit. At least three times, Smith informed Thig-pen that Watson was claiming the property. Thigpen denied being aware of two claims of title and any claims of adverse possession, but the trial judge did not accept this testimony.

Thigpen did not mention any of the adverse claims to his attorneys, Blondeau and Davis, who examined the title for him.

Thigpen discussed the possibility of a non-warranty deed with the representatives of Vancouver. Vancouver refused to accept a quitclaim deed. Thigpen requested that he be given a letter which would relieve him of personal liability in the event of suit. Vancouver likewise refused this proposition. Thigpen then determined that he would sell the property by a quitclaim deed without warranty even as to return of the purchase price to a corporation which he established after Vancouver refused to accept a non-warranty deed. Thigpen sold the property first with no warranty to Florida Investments. On the same date, April 7, 1978, a sale with no warranty was made from Florida Investments to Big T Timber.

Thigpen stated that the reason he transferred the property through the corporations was to give each corporation an opportunity to do some business; also, he stated that he sold the timber through Big T Timber to avoid personal liability. Big T Timber was not even in existence until Thigpen determined that Vancouver would accept only a warranty deed. The only income that Big T Timber had prior to the trial was the price of the timber sold to Vancouver. According to Thigpen, the only assets owned by Big T Timber were a small checking account balance and a small tract of timberland in DeSoto Parish. The corporate minutes of Florida Investments reflect that Florida Investments owned a small tract of land in DeSoto Parish, which it authorized to be sold in March 1979. It also held some mineral leases in DeSoto Parish and had a small checking account.

According to the testimony of Don Burk-ett, Vancouver’s title attorney, Thigpen represented that he was going to make a large profit because the persons who sold to him were absentee owners who were not aware of the value of the property. Burk-ett stated that Thigpen told him that he was going to use the corporation for tax purposes.

The record reflects that Thigpen concealed facts known to him, which if known to Vancouver would have prevented the sale, with the intent to take unjust advantage of Vancouver by insulating himself from personal liability for return of the purchase price. The assets of the two corporations used were clearly not substantial. Thigpen, the sole stockholder of the two corporations, used both corporate structures to avoid personal liability, having concealed information (that he should have revealed) to the detriment of Vancouver.

Since Thigpen intentionally concealed information that would reveal that Vancouver would not enjoy peaceable possession, to Vancouver’s detriment, while revealing other title information, and he unjustly used the corporate entities to absolve himself from personal liability on the warranty, this court will disregard the corporate fictions. We hold that Thigpen is personally liable, in solido, with Big T Timber and Florida Investments, for breach of warranty.

For the reasons assigned, the judgment of the trial court is affirmed. The costs of this appeal are assessed to defendants-appellants.

AFFIRMED.

      . The accounts for both corporations were opened at the Bank of Commerce in Shreveport on April 7, 1978.

      . In the minutes of Florida Investments, there appears a copy of a promissory note from Big T for the sum of $2,270.00 dated April 11, 1978. In the minutes of Big T appears a copy of a note for $90,000.00 payable to Florida Investments by Big T Timber dated April 7, 1978 and marked paid. The supposed note for $87,-730.00 from Big T to Florida Investments does not appear in the record.

      . The previous lawsuit was filed in 1964. The last action was taken in 1968. The suit was filed by Mrs. O’Quinn and other co-owners against Watson and Brittain for possession of the tract. The suit was abandoned as no further action was taken for five years after the various motions and filings in 1968. LSA-C. C.P. art. 561.


author: STOKER, Judge.

text:
    SOUTH CENTRAL BELL TELEPHONE COMPANY, Plaintiff-Appellee, v. F. MILLER & SONS, INC., and State of Louisiana, Through the Department of Highways, Defendants-Appellants.
    No. 7522.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 1980.
    James A. Smith, Lake Charles, McBride & Brewster, Robert R. McBride, Lafayette, Sharon Lyles, Baton Rouge, for defendants-appellants.
    Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell, Edward C. Abell, Jr., Lafayette, for plaintiff-appellee.
    Before CUTRER, STOKER, and LA-BORDE, JJ.
   STOKER, Judge.

South Central Bell Telephone Company filed suit against F. Miller and Sons, Inc., and the State of Louisiana through the Department of Highways, on July 6, 1979. Bell sought a preliminary injunction prohibiting the contractors and the state from driving pilings, digging, draglining, dredging or otherwise conducting operations which could damage telephone company cables crossing the Vermillion River in Lafayette, Louisiana.

F. Miller and Sons, Inc., had signed a contract with the Louisiana Department of Transportation and Development to build a bridge across the Vermillion River at Pin-hook Road in Lafayette. In the contract, dated December 21, 1978, the State had authorized the contractor to commence construction on June 15, 1979.

A meeting of the representatives of the telephone company, F. Miller & Sons, and the Highway Department was held on the second and third of July, 1979. The phone company estimated that the cables could be removed by August 15, and when pressed, moved the date up to August 10. On July 6, Miller informed the phone company that pile driving would begin at 7:00 a. m. on July 9. Because of this action by F. Miller & Sons, South Central Bell filed the present suit.

The trial court issued a temporary restraining order and preliminary injunction on July 10 granting plaintiff phone company the relief it sought. F. Miller & Sons, Inc., was prohibited for ten days from further action at the Pinhook Road crossing of the Vermillion River. On July 23,1979, the district court issued a- judgment enjoining defendant until August 10 from operating in the vicinity of plaintiff’s underground cables.

Defendant makes two assignments of error in this appeal. Defendant claims the trial court erred in: (1) granting a temporary restraining order and preliminary injunction because no “irreparable injury” would have resulted, and (2) in granting a temporary restraining order and preliminary injunction to the telephone company because the company was not the proper party plaintiff.

DID IRREPARABLE INJURY OCCUR?

Controlling statutory provisions in this instance are found in the Louisiana Code of Civil Procedure, article 3601, et seq. Article 3601 provides in pertinent part:

An injunction shall issue in cases where irreparable injury, loss, or damage may otherwise result to the applicant, .

It is well established in the jurisprudence of our state that irreparable injury for which an injunction will lie is that for which an injured party cannot be compensated adequately in money damages, or for which damages cannot be measured by a pecuniary standard. Caffery v. Powell, 320 So.2d 223 (La.App. 3rd Cir. 1975); State Board of Education v. National Collegiate Athletic Association, 273 So.2d 912 (La.App. 3rd Cir. 1973); and Waters v. Karst, 235 So.2d 222 (La.App. 3rd Cir. 1970).

Defendant contends that any damage that might have been caused plaintiff would be easily susceptible of pecuniary evaluation. Therefore, defendant argues, an injunction should not issue. It is true that the damage to the buried and submerged cable, and the cost of repairing that damage, may be readily ascertainable. Irreparable harm, however, would be an indirect result of damage to the cable. It is the damage that could be done to telephone users that cannot be measured in monetary terms.

Harold Bernard, manager of maintenance for the Lafayette District of South Central Bell, testified that there was no way to locate the cable so that it could be avoided. He estimated that if the cable were severed 4,400 phones or about 5,000 customers of South Central Bell, 70% of whom are residential, would be without service for 10 days. In a situation of that type, in which one cannot call for an ambulance or for police or fire protection, the possibility of irreparable harm is very great. The trial judge was correct, therefore, in finding a danger of irreparable harm sufficient to merit the issuing of .an injunction.

WAS SOUTH CENTRAL BELL THE PROPER PARTY PLAINTIFF?

Defendant quotes 43A C.J.S. Injunction, Section 133(b) (1978), for authority that the telephone company is not the proper plaintiff. We find this citation of little value.

Mr. Bernard, the phone company district manager, testified that South Central Bell is the only telephone company serving the area in question. Therefore, it is legally bound to render service to every person who pays his bill. (See LSA-R.S. 45:782) Under these circumstances, Bell was a proper plaintiff to seek the injunction. The trial judge in his reasons for judgment cited Corpus Juris Secundum: “Other states have allowed injunctions where there is danger or menace to the public health or safety concerning the supply of electricity, water supply, street railroad, sewerage, etc.” 43A C.J.S. Injunction §§ 133, 134 (1978). We agree that such a situation exists here and that the injunction was proper.

For the above reasons we find the trial court was correct in enjoining defendant, so that South Central Bell could proceed to remove the submerged telephone cables, and thus, prevent irreparable harm to 4,400 people living on the east bank of the Vermillion River.

This case deals only with the propriety of the injunction and does not consider issues of fault or damages.

The costs of this appeal are assessed against appellant, F. Miller and Sons, Inc.

AFFIRMED.


author: GARRISON, Judge.

text:
    MID-SOUTH PACKAGING, INC. v. Carter HUNTER, d/b/a Hunter Agency.
    No. 10359.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 11, 1980.
    Garon, Brener & McNeely, Gary Pender-gast, New Orleans, for defendant-appellant.
    David D. Duggins, New Orleans, for plaintiff-appellee.
    Before BOUTALL, GARRISON, and CHEHARDY, JJ.
   GARRISON, Judge.

Mid-South Packaging, Inc., appellee, is a judgment creditor of Carter Hunter, d/b/a Hunter Agency. Mid-South made the judgment executory and issued garnishment interrogatories to Mohammad Khaled, d/b/a Ms. and His, making Khaled garnishee. Khaled filed a response, in proper person, six days after the interrogatories were served. Subsequently, however, the trial court issued a judgment pro confesso against Khaled for the amount due. Kha-led has appealed.

The basic issue on appeal is whether the strict requirement of C.C.P. Art. 2412 (that the garnishee shall file a “sworn” answer) must be followed. Mid-South contends the requirement of 2412 must be strictly construed. Khaled, on the other hand, ignores the requirement of a sworn answer, and emphasizes the substance of his response, which denied any type of indebtedness or liability to Carter Hunter and stated that Hunter was not employed by him. Khaled contends that, under C.C.P. Art. 2414, Mid-South was required to traverse his answer, and that failure to do so means the answer must be accepted as true, so that judgment pro confesso was erroneous.

Khaled’s position would be correct, were if not for the clear requirement of Art. 2412, that garnishee’s answer shall be sworn.

This case is analogous to Mid-City Investment Co. v. Batiste, 248 So.2d 88 (La.App. 1st Cir. 1970), in which our brothers of the Third Circuit stated that a telegram sent by the garnishee could not be considered a sworn answer to interrogatories. Nor can Khaled’s response be considered as proper under the Codal article. Thus, Khaled failed to answer the garnishment interrogatories within the appropriate delays.

C.C.P. Art. 2413 states that upon garnishee’s failure to answer, the judgment creditor may proceed by contradictory motion against the garnishee. The garnishee’s failure to answer is prima facie proof that he is indebted to the judgment debtor, and judgment shall be rendered against him unless he proves he had no property of and was not indebted to the judgment debtor. Khaled was represented by an attorney at the hearing on the motion for judgment pro confesso, but no evidence was presented to contradict Mid-South’s statutorily-acquired prima facie case. The judgment in favor of Mid-South Packaging, Inc. was, therefore, correct.

Accordingly, the judgment of the Second Parish Court for the Parish of Jefferson is affirmed.

AFFIRMED.

      . Khaled’s answer reads as follows:
      “Sir: This man was my advertising agent. He is no longer employed by me. I owe him no money. I still paying him $50 a week for WRNO Radio Station, because he sign me a deal with the station and he get his commission from WRNO Station. But, I don’t owe him any personal money and he do not work for me at all. And the company Ms. and His never owed Mid-South money through Hunter Agency, all the money owed by Ms. and His paid to Mid-South Packaging, Inc. by me in cash. I don’t know anything between Hunter Agency and Mid-South Co.”

      . C.C.P. Art. 2412 reads as follows:
      “The sheriff shall serve upon the garnishee the citation and a copy of the petition and of the interrogatories, together with a notice that a seizure is thereby effected against any property of or indebtedness to the judgment debtor.
      “Service shall be made in the manner provided for service of citation, except that if the garnishee is an individual, service must be personal. If the garnishee has concealed or absented himself with the purpose of avoiding personal service, the court may order that service be made in any other manner provided by law.

        “The garnishee shall file his sworn answers to the interrogatories within fifteen days from the date of service.” (Emphasis added.)


text:
    In the Interest of Stacy EDLER.
    No. 10763.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 11, 1980.
    Rehearing Denied April 18, 1980.

      Becnel & Faucheux, Reserve, for respondents-appellants.
    William D. O’Regan, III, La Place, for the State of Louisiana.
    Before SAMUEL, C. J., and BOUTALL and GARRISON, JJ.
   GARRISON, Judge.

This is an appeal from a District Court judgment rendered on April 20, 1979 in which the court denied a rule to change custody filed by the parents of Stacy Edler. In a prior hearing, the court had removed Stacy from the custody of her parents, placing her with the Division of Family Services. The court additionally requested that Mrs. Edler consult the Norco Mental Health Center for a period of at least one year as a condition to the rendition of the prior consent decree.

The Division of Family Services placed Stacy in the care of her aunt and uncle, Donald and Gerryl Edler Bourgeois, during the one year period. At the end of that period, the court, in response to Mr. and Mrs. Edler’s rule, rendered judgment continuing custody in Mr. and Mrs. Bourgeois. We affirm the judgment which is appealed by Mr. and Mrs. Edler.

The deprivation of a parent of his child is a harsh proceeding. Thus, our law provides that a parent is entitled to custody unless it is shown by competent evidence that he is morally, mentally or otherwise unfit or incapable for caring for the child. In re State in the Interest of Elliott, 206 So.2d 802 (La.App. 2nd, 1968). It is also well settled that the parent’s right of custody is subject to the authority of the State to deprive him thereof, if he is morally, mentally or otherwise unfit or incapable of caring of the child or if the child’s welfare so requires. State ex rel. Rothrock v. Webber, 245 La. 901, 161 So.2d 759; State ex rel. Brode v. Hatcher, 233 La. 636, 97 So.2d 422; State ex rel. Paul v. Dept. of Public Welfare, 170 So.2d 549 (La.App. 3rd, 1965).

In the instant appeal, the State has presented a strong case proving that Mrs. Edler’s mental condition is such that it would be detrimental to Stacy’s well-being to permit her to live with the mother. In cases involving the custody of children, a great deal of discretion is accorded to the trial judge and his decision will not be reversed except in the clearest case of abuse of such discretion. In re State ex rel. Thaxton, 220 So.2d 184 (La.App. 1st, 1969). We cannot conclude that the trial judge abused the discretion granted him in this determination. Accordingly, the judgment of the district court is affirmed.

AFFIRMED.