author: COLE, Judge.

text:
    Olezime CHERAMIE et al. v. Alidore CHERAMIE et al.
    No. 12844.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 1979.
    Rehearing Denied Feb. 20, 1980.

      Carlton J. Cheramie, Golden Meadow, for plaintiffs and appellants Webb Cheramie, Erick Cheramie, Theo J. Cheramie, Mrs. Viola Cheramie Dantin, Mrs. Hazel Chera-mie Barrios, Renie J. Cheramie, George Cheramie, Harvey Cheramie, Ansay Chera-mie, Asse Cheramie Crosby.
    David L. Landry, Thibodaux, for plaintiffs and appellants Annabelle Cheramie Pi-tre, Thelma Cheramie Messick, Anna Chera-mie Camardelle, Marilyn Cheramie DeMat-teo, Debra Cheramie Esserman, Stephen J. Cheramie, Jr., Stephanie Cheramie.
    Maurice J. Serpas, Galliano, for defendants and appellees Edwin Cheramie, Mrs. Evelia Cheramie, Ludovic Cheramie, Mrs. Rita Cheramie, Mrs. Gail Hebert Cheramie.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   COLE, Judge.

This is a petitory action in which the principal issue is whether the existence of a usufruct on the disputed tract prevented defendants from acquiring ownership of the land through thirty year acquisitive prescription. Essentially, the suit began as an assertion of ownership by Olezime Chera-mie over a tract of land which was claimed and possessed by his brothers, Alidore and Ozeme. Olezime maintains he became owner of the disputed tract by virtue of a 1907 partition executed by him, his brothers and sister.

This suit was filed in 1951 by nine plaintiffs against forty-five defendants. Although the trial was held in 1956 and 1957, no judgment was rendered until 1979 because the judge who presided over the trial left office without rendering a decision. Over the years the number of litigants has been greatly increased through substitutions of parties. Plaintiffs are the heirs and assigns of Olezime. Defendants are basically the heirs and assigns of Alidore and Ozeme. Many of the defendants are holders of mineral interests.

The lower court, sustaining pleas of five year liberative prescription and thirty year acquisitive prescription, held for defendants. Plaintiffs appeal.

The contested property was described in the petition as follows:

A CERTAIN TRACT OF LAND, situated in the Parish of Lafourche, Louisiana, on the left descending bank of Bayou La-fourche, about 55 miles below the Town of Thibodaux, near the Town of Golden Meadow, Louisiana, measuring a front of two hundred ninety-three and 44/100 (293.44 ft.) feet on the left descending bank of said bayou by a depth of forty arpents between parallel lines, comprised within and being the Northernmost one-quarter of Section 23, Township 19 South, Range 22 East, Southeastern Land District of Louisiana, West of the Mississippi River; said tract of land being bounded in the front or on the West by said Bayou Lafourche, above, or on the North by the Northern boundary line of said Section 23, in the rear, or on the East, by the Eastern boundary line of said Section 23, and bounded below, or on the South, for a distance of 1000 feet by property of Eugene Cheramie, and for the remainder of its depth by property of Alidore Chera-mie; together with all buildings and improvements thereon and all rights, ways, privileges and servitudes thereunto belonging, or in anywise appertaining.

This land is part of a larger tract acquired in 1866 from Martial Celestin Orgeron by Olucien Cheramie, father of Olezime, Ali-dore, and Ozeme. The act of sale contained the following property,description:

A certain tract of land situated in the Parish of Lafourche, on the left descending bank of Bayou Lafourche bounded above by a tract of land belonging to Gratien Thibodaux, and below by a tract of land belonging to Charles Orgeron— with all the buildings and improvements thereon.
Said land has been acquired by the vendor from the State of Louisiana and is described as being Lot [or Section] Number Twenty-three (23) in Township Number Nineteen South of Range Number Twenty-two East, containing one hundred and fifty-eight acres and Seventy-five hundredths of an acre.

Later Olucien acquired a second tract along Bayou Lafourche. This property was located below the first tract in section 22.

In 1869 Olucien Cheramie married Aglae Hebert. From this marriage eight children were born: Olezime, Alidore, Ozeme, Theodore, Joseph Ovide, Julien, Olucien, Jr., and Adolphine. When Olucien died around 1882 he was survived by his widow and eight children.

On July 24, 1907, the Cheramies executed three notarial acts. In the first, Mrs. Aglae Hebert Cheramie sold to her eight children her interest, if any, in the two tracts of land along Bayou Lafourche acquired by her late husband.

The second act was a partition among the eight children of the two tracts. The lower tract, which was located in section 22, was divided into four parcels measuring one ar-pent front by forty arpents in depth. These four parcels were allotted to Joseph Ovide, Julien, Olucien, Jr., and Adolphine. The upper tract, which was divided into four lots measuring one acre front by forty acres in depth, was described in the act of partition as follows:

A,certain tract of land situated in the Parish of Lafourche, State of Louisiana, on the left bank of Bayou Lafourche at about Fifty five miles below the Town of Thibodeaux, measuring Four acres more or less front on Said Bayou Lafourche by Forty Acres in depth, Bounded above by land formerly belonging to Estate of Gra-tien Thibodeaux and now owned by Francois Deramee and below by other land of Francois Deramee and formerly to Francois Doucet together with the buildings and improvements thereon.

The first upper acre front of this tract was allotted to Olezime and described as “being bounded above by land formerly belonging to Est. Gratien Thibodeaux now owned by Francois Deramee, and below by land allotted to Alidore Cheramie herein.” The second acre front went to Alidore, the third to Ozeme, and the fourth to Theodore.

In the third act executed that day, the eight Cheramie children acting as “owners in a divided state” granted to their mother a usufruct for life over their respective tracts that they had been allotted in the partition. Mrs. Cheramie was not a party to this act.

Shortly after the partition each child went into possession of his tract. Theodore testified he, Olezime, Ozeme, and Alidore together measured off their four tracts. No survey was made. The present dispute arises out of the fact that Olezime, who had been allotted the first upper acre front of the upper tract, settled on land that was entirely in section 24, to which Olucien and his heirs had no title. Olezime and the other members of his family thought the land he took possession of was part of the tract Olucien had purchased from Martial Orgeron. Alidore testified the boundary with Thibodaux had been marked during his father’s lifetime with a levee and canal built as a joint project by his father and Thibodaux. Olezime possessed up to this canal.

In 1934, Nolan Tomplain, whose ancestor in title was Gratien Thibodaux, brought suit against Olezime asking the court to fix the boundary between their respective tracts of land. Olezime answered admitting the true boundary was the section line between section 23 and 24, but he also asserted he and his father had possessed for over thirty years up to a boundary line marked by a canal and fence. A survey conducted in connection with this suit showed the land Olezime possessed to be in section 24. The judgment in the Tomplain suit, rendered in 1936, found that although Tomplain had record title, Olezime and his father had possessed all but the rear portion of the tract in excess of thirty years giving Olezime prescriptive title.

In 1951 Olezime brought this suit claiming that by virtue of the 1907 partition he was owner of the upper quarter of section 23. The land Olezime claims includes all of Alidore’s tract and part of Ozeme’s. Defendants assert plaintiffs do not have valid record title and claim ownership through ten and thirty year acquisitive prescription. Additionally, some defendants plead five year liberative prescription.

On the issue of the validity of plaintiffs’ title, -we quote with approval from the district court’s astute reasons for judgment:

The evidence shows that Olezime Cheramie and his successors or assigns have never been in possession of the disputed property in this case. In this factual setting, the burden on the plaintiffs is that they must prove the strength of their own title and not the weakness of their adversaries. They must show valid record title, good against the world, and the title of the defendants does not come into question until the plaintiffs have proved an apparently valid title in themselves. Articles 3651 & 3653 Code of Civil Procedure; Pure Oil Company v. Skinner, 294 So.2d 797 ([La.] 1974); Egle v. Constantin, 198 La. 899, 5 So.2d 281 (1941); Smith v. Chappell, 177 La. 311, 148 So. 242 (1933); Voisin v. Luke, 341 So.2d 6 ([La.App.] 1st Cir. 1976); Thompson v. Frazier, 184 So.2d 283 ([La.App.] 1st Cir. 1966).
A review of the 1866 sale between Olu-cien Cheramie and Martial Celestine Or-geron clearly shows that it was the intention of the parties that Olucien Cheramie acquire Section 23 of Township 19 South, Range 22 East, in accordance with the original government survey. The description indicates that the parties focused their attention on the specific tract designated rather than on any established boundaries or physical possession. The problem in this case is caused by the fact that Olucien Cheramie and his heirs and successors physically possessed land north of Section 23 in Section 24 as well as the land in Section 23. In the three acts executed in 1907, the parties made no reference to lot, section, township or range designations. Instead these acts describe the various tracts by their boundaries or adjoining tenaments and indicate an intent by the parties to transfer or assign ownership on the basis of what is included within the boundaries described. If a piece of land is sold, alienated, or transferred from one fixed boundary to another, the transferee obtains the land between the boundaries. Articles 854 and 2495 of the Civil Code. Such a transfer by metes and bounds is also referred to as per aversionem. See Hingle, Sales of immovables: per measure, per lump, per aversionem — a clarification, 47 Tulane Law Review 852 (1973). Where a transfer is made per aversionem a presumption arises that the parties place their attention on the particular property between the boundaries and did not particularly concern themselves with measure or dimension. A review of the three acts executed in 1907 clearly shows that the parties intended to voluntarily divide in kind the properties which were being actually physically possessed by the Cheramie family without regard to a specific government survey title description.
Had the parties specifically conveyed to Olezime Cheramie full ownership of the northern one-fourth of Section 23 of Township 19 South, Range 22 East, then he and his successors would have good title. The description does not recite this. Olezime Cheramie received the upper one acre front of the first tract described which was bounded above by land owned by Francois Deramee and below by land allotted to Alidore Cheramie. This tract, although physically possessed by the Cheramie family, was located totally outside of Section 23. By coincidence the boundary ditch and fence between Olez-ime and Alidore is almost exactly on the Section line between Section 23 and 24. (See Exhibit LX-1 in Volume I). The parties immediately went into physical possession of the tracts allotted to them and shortly thereafter constructed boundary ditches and exercised other acts of dominion. This action demonstrates their intention to partition by possession rather than title.
The court is admonished by Article 1945 of the Civil Code to give legal effect to contracts according to the true intent of the parties, that the intent is to be determined by the words of the contract and that it is the common intent of the parties that is to be sought for. Sabine Construction Company, Inc. v. Cameron Sewerage District No. 1, 298 So.2d 319 ([La.App.] 3d Cir. 1974); Lanneau v. Capital Transportation Corporation, 292 So.2d 810 ([La.App.] 1st Cir. 1974).
The act of partition allocated to Olez-ime Cheramie the property ‘bounded above by land formerly belonging to Est. Gratien Thibodeaux, now owned by Francois Deramee, and below by land allotted to Alidore Cheramie herein.’ Alidore Cheramie went into possession of the tract allotted to him in the partition as did Olezime Cheramie. Since Olezime Cheramie is bounded by Alidore Chera-mie, he cannot now claim that the act of partition gives him title to a tract of land that he voluntarily ceded to and conceded was owned by Alidore Cheramie. Since the partition was voluntarily and privately negotiated between the parties the law presumes that each of the parties received his proper share. Marcello v. Marcello, 178 So.2d 416 ([La.App.] 1st Cir. 1965).
Accordingly, it is the opinion of this court that the plaintiffs have failed to show valid record title, good against the world, in themselves.

We also concur with the district court’s sustaining of defendants’ plea of thirty year acquisitive prescription.

The possession necessary for thirty year acquisitive prescription is set forth in the following Civil Code articles:

Art. 3500. The possession on which this prescription is founded must be continuous and uninterrupted during all the time; it must be public and unequivocal, and under the title of owner.
Art. 3503. How favorable soever prescription may be, it shall be restricted within just limits. Thus, in the prescription of thirty years, which is acquired without title, it extends only to that which has been actually possessed by the person pleading it.

There was extensive testimony at trial on the possession exercised by Alidore and Oz-eme over their respective tracts. Relatives, party litigants, neighbors and former employees all testified that Alidore and Ozeme openly possessed their respective tracts as owners and were recognized as owners by their family and community.

In 1907, Alidore and Ozeme, both of whom never married, were living with their mother in section 22 on the tract that was allotted to Olucien, Jr. They remained there until approximately 1922 when they moved into a house on Ozeme’s land. Mrs. Cheramie continued to live with her two bachelor sons until her death in January 1935.

As early as 1911, Alidore had a canal and fence running approximately thirty arpents from the bayou separating his tract from Olezime’s. On his lower boundary with Oz-eme there was a short canal and a fence. There was also a fence across the rear of his property approximately thirty arpents back. Alidore cultivated his high lands from shortly after the partition until approximately 1944. Several witnesses who worked on Alidore’s land estimated they planted about eighteen or twenty arpents from the bayou. These witnesses testified they were hired and paid by Alidore and considered him the owner of the land they worked. From time to time Alidore and some of his brothers kept cattle on the rear of his tract behind the rear fence. Alidore also trapped on his land. Beginning in 1934, Alidore sold off several lots on the front of his tract for homesites. He also conveyed mineral rights to his property. Ozeme, too, began cultivating his land shortly after the partition. His lower boundary with Theodore was marked with a canal. Around 1934 he sold a portion of the front part of his tract. Until this suit, Olezime never asserted a claim to the disputed land.

The above detailed acts of possession are clearly sufficient for thirty year acquisitive prescription of the two one-acre by forty-acre tracts. The existence of usu-fructs in favor of Mrs. Cheramie until 1935 does not defeat the acquisitive prescription.

The following Civil Code articles are pertinent:

Art. 3438. One may acquire possession of a thing, not only by himself, but also through others who received it for him and in his name. But in this case it is necessary that the- person receiving the possession should have had intention of receiving for the other.
Art. 3490. The circumstance of having been in possession by the permission or through the indulgence of another person, gives neither legal possession nor the right of prescribing.
Thus, those who possess precariously, that is, by having prayed the master to let them have the possession, do not deprive him thereof, but, possessing by his consent, they possess for him.
Art. 3510. Those who possess for others and not in their own name, can not prescribe, whatever may be the time of their possession.
Thus, farmers, tenants, depositaries, usu-fructuaries and all those generally who hold by a precarious tenure and in the name of the owner, can not prescribe on the thing thus held.

It is clear from the above articles that a usufructuary is a precarious possessor who possesses for the naked owner. As was discussed above, Alidore and Ozeme were allotted the disputed property in the 1907 act of partition. In an act executed the same day, each granted his mother a usufruct over the tract he had been allotted. Any exercise by Mrs. Cheramie of her rights as usufructuary would not have interrupted Alidore’s or Ozeme’s possession. Rather her possession as usufructuary would have constituted possession for the naked owner from whom she derived her rights, i. e. Alidore or Ozeme. Since Olez-ime was not allotted the disputed tract in the 1907 partition, the usufruct he gave his mother did not cover that property. Instead it was over the tract in section 24. We note also it is very doubtful Mrs. Chera-mie ever exercised her rights of enjoyment.

Since the 1907 partition. assigned Olezime property to which the family had no title, Olezime clearly had an action in warranty against his brothers and sisters. La.Civ.Code art. 1384. However this action prescribed five years from the day of his partial eviction by the 1936 judgment in the Tomplain case. La.Civ.Code arts. 1396, 3542.

Because of the conclusions reached above, it is unnecessary to discuss the issues of Mrs. Cheramie’s acceptance of the usu-fructs, the termination of the usufructs by non-use, and ten year acquisitive prescription.

The judgment of the district court is affirmed. Costs of this appeal are to be paid by plaintiffs-appellants.

AFFIRMED.


source: Caselaw Access Project

license: Public Domain

text:
    Corzella M. WRIGHT v. Kenneth L. MOORE et al.
    No. 12934.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 1979.
    Edward J. Walters, Jr., Baton Rouge, counsel for plaintiff-appellant Corzella M. Wright.
    John D. Carpenter, Baton Rouge, counsel for defendants-appellees Kenneth L. Moore and George Moore.
    W. Arthur Abercrombie, Jr., Baton Rouge, counsel for defendants-appellees Mary Mitchell and The Travelers Ins. Co.
    John W. King, Baton Rouge, counsel for defendant-appellee Dept, of Transp. & Dev.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   COLE, Judge.

The issue in this case is whether the State of Louisiana can be sued in tort by one of its employees or whether the employee’s exclusive remedy is for workmen’s compensation.

Plaintiff sustained injuries in an automobile accident which occurred on October 6, 1977, in East Baton Rouge Parish. She was a passenger in an automobile owned by the State of Louisiana and driven by another state employee. Both she and her host driver were employed as nurses by the Department of Health and Ixurnan Resources and were engaged in the course and scope of their employment at the time the accident happened. Plaintiff’s deposed testimony evidences the fact that she has received workmen’s compensation as a result of her job-related injuries.

Made a party defendant in this action is the State of Louisiana, through the Department of Transportation and Development. Plaintiff alleges the accident was caused or contributed to by the negligence of the State of Louisiana, through the Department of Transportation and Development, in that the semaphore signal at the scene was malfunctioning due to inadequate repair and maintenance.

The State filed a motion for summary judgment urging the application of La.R.S. 23:1032 which provides in part:

The rights and remedies herein granted to an employee or his dependent on account of an injury, or compensable sickness or disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights and remedies of such employee, his personal representatives, dependents, or relations, against his employer, or any principal or any officer, director, stockholder, partner or employee of such employer or principal, for said injury, or compensable sickness or disease. For purposes of this Section, the word ‘principal’ shall be defined as any person who undertakes to execute any work which is a part of his trade, business or occupation in which he was engaged at the time of the injury, or which he had contracted to perform and contracts with any person for the execution thereof.

From a judgment granting the motion and dismissing plaintiff’s suit as to the State of Louisiana, plaintiff appeals.

We affirm.

Plaintiff argues that the Department of Health and Human Resources and the Department of Transportation and Development are two separate and distinct bodies corporate and that as an employee of one she is free to sue the other in tort as a separate entity. La.Const. art. 14, § 6; La. R.S. 36:251; La.R.S. 36:501. We reject this argument holding that the State of Louisiana is the real party at interest and is indistinguishable from its executive departments. Under these circumstances it is not a “third person” and cannot, therefore, possess the dual capacity of employer and third person tortfeasor. La.R.S. 23:1034; La.R.S. 23:1101.

The dual-capacity problem is not to be confused with the question of legal entity. Regardless of the executive agency or department for which the plaintiff works, we construe her to be an employee of the State of Louisiana. This negates the concept that plaintiff is suing a third person in tort when she names the State, through an executive department for which she performs no services, as a party defendant. She is, in fact, suing her own employer. To allow such an action is contrary to the compromise underlying workmen’s compensation. Under our workmen’s compensation law, the employer must pay compensation when he is not at fault. To balance the economic scales, the employer should not be liable for greater compensation when he is at fault.

Our courts have apparently not been called upon to decide the precise question here presented. An analysis of the problem and its treatment outside this state is provided in 2A A. Larson, The Law of Workmen’s Compensation § 72.80 (1975):

In comparatively recent years there has appeared in various contexts what might be called the dual-capacity doctrine. Under this doctrine, an employer normally shielded from tort liability by the exclusive remedy principal may become liable in tort to his own employee if he occupies, in addition to his capacity as employer, a second capacity that confers on him obligations independent of those imposed on him as employer.
The primary issue in this class of cases is: what is the test of true dual capacity? One thing is clear. Dual capacity will not be found merely because the employer has a number of departments or divisions that perhaps are quite separate in their functions and operations. The question has arisen most frequently as to governments. Attempts have several times been made to subdivide a municipality, and assert common-law rights on behalf of an employee of one city department against a different city department as if it were a stranger. These attempts have been consistently unsuccessful. Thus, when a city has both a fire department and a street railway line, the widow of a fireman killed by the street railway’s negligence cannot maintain a death action against the city in its capacity as street railway operator.
Similarly, at the state level, an employee of the Department of Highways, who was injured when struck by an automobile driven by a state trooper of the Department of Public Safety, could not bring an action of law against the Department of Public Safety, since both employees were employees of the commonwealth.

See also, Comment, Workmen’s Compensation and Employer Suability: The Dual-Capacity Doctrine, 5 St. Mary’s L.J. 818 (1973).

The State of Louisiana, as a governmental unit, is charged with promoting the health, safety, education, and welfare of the people. Preamble, La.Const.1974. To carry out this public mandate, many persons are employed in various capacities by different executive departments and agencies. The function of promoting traffic safety (maintaining a traffic signal) and the function of promoting health (providing nurses) are separate and different. However, each function involves an obligation owed by the State which is related to that flowing from the other. The obligation in each instance is to provide an essential state service. The status of the persona exercising the separate functions and discharging the obligations does not change.

We cannot find in this instance that the State of Louisiana occupies a dual capacity, that of employer and tortfeasor. Whether maintaining the traffic signal alleged by the plaintiff to have played a causative role in the accident, or whether providing nurses for health care, the status of the State in this lawsuit is that of employer only. Walker v. City and County of San Francisco, 97 Cal.App.2d 901, 219 P.2d 487 (1950); Osborne v. Commonwealth, 353 S.W.2d 373 (Ky.App.1962); Denenberg v. United States, 305 F.2d 378, 158 Ct.Cl. 401 (1962); Murray v. City of New York, 43 N.Y.2d 400, 401 N.Y.S.2d 773, 372 N.E.2d 560 (1977). Cf. Wells v. St. Tammany Parish School Board, 340 So.2d 1022 (La.App.1st Cir.1976). See also, Schlenk v. Aerial Contractors, 268 N.W.2d 466 (N.Dak.1978), and Gentry v. Pugh, 362 So.2d 1154 (La.App.2d Cir.1978).

At appellant’s cost, judgment is

AFFIRMED.

      . The legislature, within the context of workmen’s compensation, has not sought to subdivide state employment according to departments or agencies for which various employees perform services. La.R.S. 23:1034 refers to “every person in the service of the state” as subject to our workmen’s compensation law and provides “for such employee and employer the payment of compensation . . shall be exclusive, compulsory, and obligatory.”

      . Larson, supra, explains the test of dual capacity as “ . . . not concerned with how separate or different the second function of the employer is from the first but with whether the second function generates obligations unrelated to those flowing from the first, that of employer.”


text:
    Raymond ALLEN v. Sylvester SMITH, Jr.
    No. 12945.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 1979.
    Rehearing Denied March 31,1980.

      Gordon Hackman, Boutte, counsel for plaintiff and appellant.
    Lawrence J. Centola, Jr., New Orleans, counsel for defendant and appellee (U.S. Suzuki Motor Corp.).
    Sylvester Smith, Jr., pro se.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   COLE, Judge.

The issue in this case is whether the trial court abused it discretion in ordering the dismissal with prejudice of plaintiff’s claim against one of the defendants for failure to comply with orders compelling discovery.

Plaintiff filed suit on August 1, 1977, against Sylvester Smith, Jr. for injuries sustained on March 19, 1977, when the motorcycle plaintiff was operating collided with a vehicle driven by Smith. On September 11, 1978, plaintiff amended his petition to name an additional defendant, U. S. Suzuki Motor Corporation, manufacturer of the motorcycle. Suzuki answered plaintiff’s petition on October 24th, and on the same date propounded a set of interrogatories to plaintiff. The interrogatories were never answered.

On January 4,1979, Suzuki was granted a court order requiring plaintiff to produce the motorcycle on January 17th for examination and photographing. Personal service of the order compelling inspection was made January 8th on both plaintiff and his attorney of record. Plaintiff failed to comply-

On February 1st Suzuki noticed plaintiff’s deposition for February 8th. Plaintiff did not appear for the deposition.

Due to plaintiff’s failure to answer the interrogatories propounded, Suzuki, on January 25th, moved to dismiss or, alternatively, to compel answers. On February 13th, Suzuki filed a supplemental and amending motion to dismiss noting plaintiff’s failure to respond to the court ordered production for inspection and his failure to appear for deposition. The court set a hearing on the motions for March 16th. On that day arguments were heard and the court granted the motion to dismiss but-ordered briefs to be filed within ten days on the question of whether the dismissal should be with or without prejudice. Suzuki filed its brief but plaintiff failed to file a brief in opposition.

Judgment was rendered May 1st and signed May 15th ordering plaintiff’s amending petition dismissed with prejudice. Plaintiff appeals the dismissal. We affirm.

This court was not favored with a timely brief in support of plaintiff’s appeal. Plaintiff’s counsel sought to obtain additional time within which to file his brief but his motion therefor was untimely and had to be denied. A late brief was never received. This case was set for hearing and submission on October 31st. A notice of intent not to abandon the appeal was filed October 30th.

The chronology of this case demonstrates a flagrant violation by plaintiff and his counsel of the duties imposed pursuant to the discovery provisions of our law. La.C. C.P. art. 1421, et seq. Defendant Suzuki properly sought to utilize the discovery devices of deposition upon oral examination, written interrogatories and production for inspection. La.C.C.P. arts. 1437, 1457, and 1461. When plaintiff failed to respond, particularly to the court’s express order to produce the motorcycle for inspection, Suzuki proceeded under C.C.P. art. 1469 to compel discovery or have plaintiff’s claim against it dismissed.

C.C.P. art. 1471, in part, provides:

If a party . . . fails to obey an order to provide or permit discovery, . the court . . . may make such orders in regard to the failure as are just, and among others the following:
(3) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, .

This particular provision does not specify whether dismissal should be with or without prejudice. Suzuki contends that a dismissal without prejudice, which would allow plaintiff to re-file his claim, is, in effect, no sanction and results in no real remedy for plaintiff’s repeated failure to allow discovery. We agree.

Sanctions for failure to comply with discovery orders are discretionary and may be imposed by the court if the order is disobeyed without justification. The discretion employed by the trial court will not be disturbed absent its abuse. Employers Overload Co. v. Employers Overload Co., N.O., 266 So.2d 546 (La.App. 4th Cir. 1972), writ refused, 263 La. 375, 268 So.2d 260; Viator v. Sonnier, 355 So.2d 1091 (La.App. 3d Cir. 1978).

Under the facts of this case, there was no abuse of discretion. Any sanction other than dismissal with prejudice would have been an affront to all litigants who respect the rights of adverse parties and to counsel who strive to fulfill their professional responsibility. More than adequate opportunity was given plaintiff and his counsel to avoid imposition of the harsh penalty of dismissal. The result was dictated by their refusal to recognize the right of the defendant to prepare its defense. Hulion v. John Bradshaw Company, 217 So.2d 454 (La.App. 1st Cir. 1969). See also, Precision Motors, Inc. v. Beder, 273 So.2d 650 (La.App. 4th Cir. 1972). Cf. Butts v. Cummings, 360 So.2d 534 (La.App. 2d Cir. 1978).

For the foregoing reasons, the judgment of the trial court is affirmed. Appellant is cast for all costs of this appeal.

AFFIRMED.


text:
    Dwayne Allen TAYLOR v. Debra Dykes TAYLOR (or Darlene Dykes Taylor).
    No. 12950.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 1979.
    Earl Harrison, Baton Rouge, of counsel for plaintiff-appellee, Dwayne Allen Taylor.

      Patsy Jo McDowell, Baton Rouge, of counsel for defendant-appellant, Debra Dykes Taylor or Darlene Dykes Taylor.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   COLE, Judge.

On October 25, 1978, the trial court granted the plaintiff a final divorce from the defendant. The judgment further decreed that the defendant have custody of the minor child, Stacy Marie Taylor, issue of the marriage. A few weeks later, plaintiff initiated proceedings to obtain custody of the child. He was successful and on March 22, 1979, judgment was signed awarding him custody. The judgment also provided that the child was to remain a ward of the court and under its protective supervision. ' To implement this, employees of the Office of Family Security, Louisiana Department of Health and Human Resources, were ordered to periodically visit plaintiff’s home and render regular reports on the status of the child.

An action for nullity of the divorce judgment was filed by defendant on April 2, 1979; and, on the same day, she filed a motion seeking a new trial on the issue of custody. The motion for a new trial was denied on April 12th. At that time the court provided for probation personnel of the Family Court Center to make periodic visits to the homes of both plaintiff and defendant and report regularly thereon to the court and counsel. The action for nullity of the divorce decree, after a later hearing, was dismissed by signed judgment on June 27th. Defendant appealed therefrom the same day. This particular appeal, upon motion of defendant, was dismissed by us after the record was lodged and briefs filed but before submission for decision.

A minute entry and a notice of appeal in the record reflect that an appeal was also entered on May 3rd from both the judgment of March 22nd awarding custody to the plaintiff-father and from the residual judgment of April 12th denying the motion for a new trial. The appeal was obviously made upon oral motion of counsel for defendant and was misunderstood by the court. The defendant alleges only that error was committed by the trial court in not granting a new trial on the issue of custody.

Defendant’s brief states her position:

“No appeal was taken in this matter from the Judgment of the lower court awarding custody to the father. A simple perusal of the record shows there would be no point in doing so: the father is shown in the most glowing terms and the mother is shown in the worst possible light. The appeal is taken from the denial of the Motion for New Trial.”

We, therefore, treat this appeal as one attempting to raise the issue of whether the trial court should have granted a new trial on the question of child custody. To the extent the appeal, as entered, also placed before us the issue of custody, we conclude defendant abandons this phase of appellate review.

An appeal may be taken from a final judgment rendered in causes in which appeals are given by law, and from an interlocutory judgment which may cause irreparable injury. C.C.P. art. 2083.

A judgment denying a motion for a new trial is interlocutory in nature and can only be appealed on a showing of irreparable injury. Chauvin v. Nelkin Insurance Agency, Inc., 337 So.2d 1230 (La.App. 1st Cir. 1976).

The circumstances of this case negate irreparable injury. The trial judge, at the time he awarded custody to the father, and again when he denied the motion for a new trial, very wisely provided for professional child care personnel to monitor the circumstances of both parents and make periodic reports to the court and counsel. This insures the well being of the child and permits the court to take immediate action should the best interests of the child be prejudiced by its custodial care.

For the foregoing reasons, this appeal is dismissed. Appellant is east for all costs incurred on appeal.

DISMISSED.


text:
    John B. BARKER v. AETNA CASUALTY & SURETY COMPANY et al.
    No. 12995.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 1979.
    Rehearing Denied Feb. 20, 1980.
    Writ Refused April 18, 1980.
    Arthur Cobb, Baton Rouge, counsel for plaintiff-appellant, John B. Barker.
    James E. Moore, Baton Rouge, counsel for defendants Aetna Ins. Co. and Vignes-Bombet Co., Inc.
    Before COVINGTÓN, LOTTINGER and COLE, JJ.
   COLE, Judge.

The trial court dismissed this workmen’s compensation suit finding that defendant’s peremptory exception raising the objection of prescription was valid. The issue is whether, under the facts of this case, the “development of injury rule” set forth in La.R.S. 23:1209 is applicable.

In written reasons for judgment, the trial court held:

“Plaintiff, Mr. Barker, was injured at his place of employment on July 20, 1977. He was seen by Dr. McMains on that date and restricted to two weeks bed rest. Mr. Barker returned to his place of employment on July 25, 1977, at which time he was fired. Defendants paid no compensation benefits and suit was filed on July 25, 1978.
“Plaintiff contends that he did not discontinue employment until July 25, 1977, when he was notified of his termination, and therefore, under the ‘development of injury rule’ his claim has not prescribed. Nevertheless, the evidence indicates that plaintiff was unable to perform his duties as of the date of the accident, July 20, 1977. The ‘development of injury’ set forth in La.R.S. 23:1209 is inapplicable in this case. Therefore, plaintiff’s claim, filed on July 25, 1978, was filed more than a year after the injury and has prescribed.”

We affirm.

La.R.S. 23:1209 provides generally that in case of injury a claim for payment of benefits shall be barred unless within one year after the accident .suit is filed. A claim specifically excluded from the one year limitation is one “where the injury does not result at the time of, or develop immediately after the accident.” In that instance, “the limitation shall not take effect until the expiration of one year from the time the injury develops, but in all such cases the claim for payment shall be forever barred unless the proceedings have been begun within two years from the date of the accident.”

The “development of injury rule,” premised in R.S. 23:1209, is jurisprudentially interpretated by Wallace v. Remington Rand, Inc., 229 La. 651, 86 So.2d 522 (1956), and by Bolden v. Georgia Cas. & Sur. Co., 363 So.2d 419 (La.1978). As stated in Wallace, supra, at p. 526:

Development, as applied to a compensable injury, signifies something more than occurrence and pain. It connotes the time when disability to perform work becomes manifest either to the injured employee or his employer.

As explained in Bolden, supra, at p. 422:

The underlying rationale of the Wallace rule is that an employee who becomes disabled after the prescriptive year (but within two years after the accident) will not be penalized by the loss of his compensation rights, unless he fails to bring suit to enforce them within one year after it is manifest, rather than conjectural, that he has a compensable claim.

The trial court made the factual determination that plaintiff was unable to perform his duties as of the date of the accident, July 20, 1977. This disability to perform his duties was immediately manifest to the plaintiff. Also, it was manifest, rather than conjectural, that plaintiff had a compensable claim as of that time. The evidence establishes he sustained a single traumatic event, suffered immediate pain, displayed objective signs of injury, sought and obtained medical evaluation, and was advised to remain in bed for two weeks, all on July 20, 1977. Plaintiff testified he did not feel he could perform his work immediately following the accident, nor could he perform nor did he intend to perform his duties five days later when he was fired. He stated he suffered continuous disability for at least four weeks after the accident. His testimony is corroborated by the medical reports of his attending physician.

As pointed out by the defendant, this is not a situation where an employee becomes disabled as the result of successive traumatic incidents on the job without being able to attribute his disability to a single event; or where a relatively minor trauma did not cause immediate pain but pain slowly developed to the point of disability; or, where an employee is injured and sustains pain but continues to work believing he can perform his duties, only to subsequently find the injury has developed to a state of disability. These are proper situations for the application of the rule allowing prescription to take effect at the expiration of “one year from the time the injury develops.” Such late manifestations should properly trigger the running of prescription. The computation of prescription as of the discontinuance of employment, as contended for by plaintiff, is not proper in this instance since plaintiff did not work after injury and thereafter reach a state of disability which caused the termination of his employment. The inability to work and a claim for weekly benefits both became manifest to plaintiff on the same day he was injured.

The case of Harris v. Seaboard Fire & Marine Ins. Company, 337 So.2d 262 (La.App.2d Cir. 1976), cited by plaintiff in support of his contention that prescription should run from the discontinuance of his employment, is factually inapposite to the present case. In Harris, the plaintiff was injured in March 1974; resumed work in May 1974; sustained an aggravating injury in September 1974; and, returned to work again in December 1974. He continued working until August 8,1975, at which time his injuries prevented further work. His suit was filed four months later. The court held plaintiff’s disabling injury did not develop within the meaning of La.R.S. 23:1209 until it caused him to no longer be able to perform his duties and to cease work on August 8, 1975. We understand this to mean the court found the termination of employment was caused by the injury. Allowing prescription to run from that time does not change the fact it was also on that date plaintiff became unable to perform his duties. This is not true in the instant case. Here, the termination of plaintiff’s employment was not because he became unable to perform his duties on that date. His disability occurred several days earlier and persisted for several weeks thereafter.

For the foregoing reasons the decision of the trial court is affirmed. The plaintiff is cast for all costs of this appeal.

AFFIRMED.


author: MARVIN, Judge.

text:
    Percy V. MOORE, Defendant-in-Rule Appellant, v. Marie McGinnie MOORE, Plaintiff-in-Rule Appellee.
    No. 14029.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 22, 1980.
    Sockrider & Bolin by H. F. Sockrider, Jr., Shreveport, for defendant-in-rule-appellant.
    Love, Rigby, Dehan & Love by Samuel P. Love, Jr., Shreveport, for plaintiff-in-rule-appellee.
    Before MARVIN, JONES and McCLEN-DON, JJ.
   MARVIN, Judge.

When the divorced mother made past due child support executory for the third time in six years and sought to garnishee, as she had before, the wages of the defendant-father, the trial court on the reconventional demand of the father, upheld the garnishment but suspended the father’s obligation to pay the accruing child support until the past due child support was satisfied by the garnishment. CC Art. 232.

The mother appeals, contending that the father is not legally entitled to such relief when his financial dilemma is shown to result solely from his own neglect and mismanagement. Laiche v. Laiche, 237 La. 298, 111 So.2d 120 (1959). We agree and reverse the judgment insofar as it suspends the father’s obligation to pay the accruing child support.

When the parties were legally separated on May 16, 1973, the mother was awarded custody of the two children, then ages four and eight years, and the father was ordered to pay child support.

The father apparently did not fully meet his child support obligations and when the parties were divorced on October 30, 1974, he was ordered to pay $150 per month child support and an executory judgment was rendered against him for $1,290. A garnishment of the father’s wages, followed. Two additional executory judgments, each followed by a garnishment, have been rendered. These are shown here in tabular form:

EXECUTORY AMOUNT DATE OF JUDGMENT GARNISHMENT JUDGMENT DATE
10-30-74 11-20-74 $1,290
7-02-76 8-19-76 $3,340 *
3-28-79 5-16-79 $5,150 *
* Includes $500 attorney fees

The gross amounts withheld from the father’s wages under the mother’s garnishments during the 52 month period are also tabulated:

From
11-20-74 $ 192
1975 1,010
1976 600
977 2,340
1978 2,611
through
3-25-79 250
TOTAL $7,003

The amounts withheld have been applied not only to the executory judgments but to interest, attorney fees, and court costs. During the entire 52 month period, the average monthly amount withheld was $134. During the years 1977 and 1978 the amount withheld has averaged slightly in excess of $200 per month.

The father has not voluntarily paid the $150 monthly child support at any time since it began to accrue in 1974.

The father’s wages were also subjected to garnishment in 1978 by two judgment creditors who obtained judgments totaling $3,700 in that year. In the judgment appealed from the garnishment for the past due child support was given preference and priority over the other garnishments. The father was discharged in bankruptcy on January 21, 1976, and cannot again obtain the benefits of that law until 1982. The father pays $10 per week under a juvenile court order to a 13-year-old child of a previous marriage. His net pay after all payroll deductions, garnishment and credit union payments, averages $111 per week, or $480 per month.

In 1976 the father began living with his girlfriend who is gainfully employed as an X-ray technician. The father testified that his girlfriend is pregnant by him and that she would not be working for six to eight week surrounding the birth of the expected child.

After the divorce the mother remarried and now has a three-year-old child by that marriáge living with her, her husband, and the two children of the first marriage. The mother and her husband are gainfully employed and had a net income of $21,350 in 1978. They own their home, two automobiles, and have $1,350 in savings. The two children whose support is in question are now 10 and 14 years old. The $150 per month in question represents only the father’s share of their support. See Kelley v. Kelley, 378 So.2d 1069 (La.App.4th Cir. 1979); Manuel v. Broderson, 298 So.2d 333 (La.App.3d Cir. 1974); and Marcus v. Burnett, 282 So.2d 122 (La.1973). A suspension of the father’s support obligation for whatever period would require the mother to assume the total support obligation for that period. The amount being paid to the mother under the garnishments is, in essence, a reimbursement for her shouldering of the father’s part of the support obligation. Since the divorce on October 30, 1974, the father should have paid through March 25, 1979, a total of $8,240 ($150 X 53 months, plus $1,290 arrearage which accrued during the separation). Notwithstanding that he has had $7,003 withheld from his wages during this time, the mother has not received this exact amount. Court cost, interest, and attorney fees were also paid from the amount withheld, as the law provides.

The father’s financial plight arises only from his neglect and his failure to meet his obligations. He has not shown that any fortuitous event or circumstance beyond his control brought about a change in his ability to pay the child support. The judgment which ordered the father to pay the $150 monthly child support also made executory $1,290 which was then owed- as past due child support by the father. During the time the child support has been accruing the father has continuously worked for the same employer and has not shown that his earnings have decreased.

The support obligation imposed on the father and the mother of minor children by CC Art. 227 is firmly entrenched in our law and is a matter of public policy. Neither equity (CC Art. 21) nor practical inability to pay (CC Art. 232) overrides this policy or allows a parent to avoid paying his or her share of the obligation where the inability arises solely from that parent’s own neglect and failure. Laiche, supra. See also Halcomb v. Halcomb, 343 So.2d 1183 (La.App.3d Cir. 1977); Baer v. Simon, 334 So.2d 796 (La.App.3d Cir. 1976); Tablada v. Tablada, 356 So.2d 1031 (La.App.1st Cir. 1977); Shows v. Shows, 345 So.2d 975 (La.App.2d Cir. 1977), cert. denied; Theriot v. Melancon, 311 So.2d 578 (La.App.3d Cir. 1975).

In the absence of a fortuitous change in circumstances authorizing a reduction in child support, a parent even in financial straits, is obligated to support the legitimate needs of his or her children during their minority. Halcomb, supra.

That portion of the judgment suspending the father’s obligation to pay $150 per month child support as it accrues is REVERSED at the cost of the father. Otherwise, the judgment is AFFIRMED at appellee’s cost.

      . “When the person who gives or receives alimony is replaced in such a situation that the one can no longer give, or that the other is no longer in need of it, in whole or in part, the discharge from or reduction of the alimony may be sued for and granted.”


author: WARE, Judge.

text:
    JOHN DEERE INDUSTRIAL EQUIPMENT COMPANY, Plaintiff-Defendant in Reconvention-Appellant, v. WILLETT TIMBER COMPANY, INC., Defendant-Plaintiff in Reconvention-Appellee.
    No. 7200.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1980.
    Writ Refused March 21,1980.

      Ledbetter, Percy & Stubbs, J. Michael Percy, Alexandria, for plaintiff-appellant-appellee.
    Gold, Little, Simon, Weems & Bruser, Donald R. Sharp, Alexandria, for defendant-appellee-appellant.
    Gist, Methvin, Hughes & Munsterman, DeWitt T. Methvin, Jr., Alexandria, for defendant-appellee.

      Provosty, Sadler & deLaunay, Michael T. Pulaski, Alexandria, for defendant-third-party plaintiff-appellee.
    Before CUTRER, STOKER and WARE, JJ.
   WARE, Judge.

This action was brought by John Deere Industrial Equipment Company (John Deere) to enforce an alleged lease of industrial equipment. On January 31, 1975, Wil-lett Timber Company, Inc. (Willett) entered into an agreement styled an “Industrial Equipment Lease” with Norwel Equipment Company of Alexandria, Louisiana (Nor-wel), a John Deere dealership. Norwel’s rights under the agreement were assigned to John Deere on the same date.

Pursuant to that agreement, Willett acquired a large machine equipped for use in the pulpwood industry. The machine was composed of two major components. The larger of the two is manufactured by John Deere and is known as a John Deere Model 544 B Wheel Loader. The other component, which was attached to the John Deere Wheel Loader by Norwel, is manufactured by Rome Industries, Inc. (Rome) and is known as a Rome Model SHN Shear with Feller-Buncher.

The machine was delivered to Willett on January 31, 1975. Shortly after Willett began using the machine, problems were encountered with its hydraulic system. In May of 1976, after Norwel had made numerous unsuccessful attempts to remedy the malfunctioning, Willett returned the machine to Norwel and stopped making the payments required by the agreement.

John Deere brought the present action to compel Willett to resume making the payments and obtained a writ of sequestration, pursuant to which the machine was seized. Willett filed a motion to recall and set aside the writ. After a contradictory hearing, the trial court held that the agreement was actually a sale, rather than a lease, and set aside the writ. The agreement has been treated as a sale in all subsequent proceedings.

Willett answered John Deere’s petition and filed a reconventional demand, alleging that the machine contained redhibitory vices. It joined Norwel as a co-defendant, praying for judgment in solido against them. In addition to the rescission of the sale, Willett sought the return of the payments made on the purchase price, the cost of repairs, lost profits and attorney’s fees.

Norwel answered Willett’s reconventional demand and also reconvened, seeking the unpaid balance due for parts and labor furnished for the repair of the machine. It also filed a third party demand against John Deere and Rome, seeking the rescission of its purchases of the John Deere Wheel Loader and the Rome Shear with Feller-Buncher, indemnification for any judgment rendered in favor of Willett and against Norwel, and attorney’s fees. In addition, Norwel sought judgment against John Deere and Rome for the amount of its reconventional demand against Willett in the event that that demand was dismissed, based on a finding that the machine contained redhibitory vices.

John Deere answered Willett’s reconven-tional demand and filed a third party demand against Rome, praying for indemnification against any judgment rendered against it and in favor of Willett or Norwel. John Deere also amended its petition in the principal action, seeking a credit for the value of Willett’s use of the machine in the event that judgment was rendered in favor of Willett and against it.

After a trial on the merits, the district court found that the machine contained a redhibitory defect. Judgment was rendered (1) In favor of Willett and against John Deere and Norwel in solido, rescinding the sale and awarding Willett $30,607.09, the amount of the payments made on the purchase price, subject to a credit of $30,-000.00 for Willett’s use of the machine; (2) In favor of Willett and against John Deere in the amount of $48,000.00 for lost income and $7,500.00 for attorney’s fees; (3) In favor of Norwel and against John Deere (on Norwel’s third party demand) for all sums recoverable against Norwel with respect to its solidary obligation with John Deere to Willett, plus $3,570, the amount owing for repairs to the machine, and $2,500 for attorney’s fees; and (4) In favor of Rome and against Willett, Norwel, and John Deere, dismissing all demands against Rome.

John Deere perfected a suspensive appeal from that judgment. Willett brought a devolutive appeal against all adverse parties and answered John Deere’s appeal, asking that the judgment be modified to grant judgment in solido against John Deere, Rome and Norwel. . In addition, Willett asks that the judgment be amended to delete the credit for its use of the machine and to include an additional $2,500.00 for the services of its attorney on appeal. Nor-wel answered the appeals taken by John Deere and Willett, asking that the judgment be amended to include an additional $4,000.00 for services rendered by its attorney on appeal.

The principal issue on appeal is whether the machine contained redhibitory vices or defects. All but one of John Deere’s specifications of error pertain to the trial court’s finding that it did contain such a defect. John Deere contends that that finding is manifestly erroneous, and Norwel agrees.

As we noted earlier, the machine purchased by Willett was composed of two major components that were assembled by Norwel. One was a John Deere Model 544 B Wheel Loader, and the other was a Rome Model SHN Shear with Feller-Buncher. The John Deere Wheel Loader is a large, self-propelled machine. Its engine .supplies power to its wheels through a transmission and also drives a hydraulic pump, from which the machine derives its ability to perform work.

The pump draws hydraulic fluid from a reservoir and expels it under pressure through hoses or lines, which carry the pressurized fluid into a cylinder containing a piston. The force of the fluid against the piston causes it to move within the cylinder. Valves are placed in the lines diverting the flow of fluid to and from the cylinder and within the cylinder itself. This produces a back and forth movement of the piston, which can be controlled by the operator of the machine and used to do work.

The John Deere Wheel Loader is most commonly used by attaching a large bucket or scoop to its front, which is used to move loose materials, such as dirt, sand or gravel. Movement of the bucket is controlled by the hydraulic system, allowing the operator to lift the material and dump it. Laymen generally refer to such machines as “front end loaders”.

In this case, a Rome Model SHN Shear with Feller-Buncher was attached to the front of the John Deere Wheel Loader, rather than the usual bucket. Although the Rome attachment is not designed or manufactured by John Deere, John Deere approves its use with its Wheel Loader. John Deere dealers, such as Norwel, purchase the attachment from Rome, connect it to the Wheel Loader, and market the completed unit as one machine. The experts who testified agreed that the marriage of the Wheel Loader’s hydraulic pump to the hydraulic components of the Rome assembly produced a single hydraulic system, rather than two separate ones.

As its name suggests, the Rome attachment is also comprised of two major parts. The shear, which consists of hydraulically powered cutting blades, is designed to cut through small trees at ground level. The feller-buncher, which is composed of two large hydraulically operated clamps, then gathers the severed trees and holds them. After a sufficient number are cut, they are released and deposited on the ground in a pile. The assembly is designed to cut and gather the kind of small trees that are converted to pulpwood for use in the manufacturing of paper.

Willett purchased the machine for that purpose. Shortly after Willett began using the machine, it became evident that its hydraulic system was malfunctioning. It repeatedly overheated and had to be shut down and allowed to cool, suspending Wil-lett’s operations for valuable periods of time. Norwel made numerous service calls and repairs, but the problems with the machine’s hydraulic system continued. When the machine had been operated less than 300 hours, the hydraulic pump had to be completely replaced. Engineers who testified at the trial agreed that the average life of that kind of pump is between 1,500 and 4,000 operating hours and that the repair frequency on the machine was far above normal.

Norwel’s mechanics were never able to determine the cause of the repeated failures of the hydraulic system. Even when Wil-lett returned the machine in May of 1976 and discontinued its business operations, they could only suggest a complete testing of the component parts. Their repeated unsuccessful efforts to repair the machine had not given them a clue as to the source of the problem.

At the trial, several experts testified concerning the possible causes for the hydraulic system’s failure. It was established that the successful operation of such a system depends on the quality of the fluid within it. The fluid, which is an oil, not only serves as a means of propelling the piston as described earlier but also serves as a lubricant, which prevents the metal surfaces of the pump from coming into contact with one another. Since the pump turns at very high speeds, friction damage will destroy it within a short period of time if it is not properly lubricated.

Excessive heat and contamination of the oil can greatly impair the oil’s ability to adequately lubricate the pump. If dirt or other debris is allowed to enter the system, it has an abrasive effect on the smooth metal surfaces of the pump, causing damage. Particulate contamination can also arise from' within the system itself, if the viscosity of the oil is reduced by excessive heat or its mixture with water, allowing the metal surfaces of the pump to come into closer contact with one another. Particles of metal are broken off as a result of the closer contact and are carried through the system by the oil, causing further damage.

Friction damage results in increased heat within the system, regardless of whether the initial damage was caused by excessive heat or contamination of the oil. This heat further degrades the oil, causing more damage. Therefore, when this vicious cycle brings about the failure of a hydraulic system, the hydraulic oil will always be found to be in an extremely damaged and contaminated condition. Thus, it can be very difficult to determine the initial cause of the failure.

Willett argues that the problems with the hydraulic system stemmed from its overheating and that the overheating was the result of a defect in the design or manufacture of the machine. Mr. Donald Foster, a mechanical engineer called by Willett, testified that the hydraulic system had an inadequate cooling capacity, because the size of the reservoir was too small. John Deere refuted that testimony, relying on the testimony of other witnesses to the effect that other identical machines, including one borrowed or rented by Willett, functioned satisfactorily and did not fail as a result of overheating.

Mr. Foster also testified that the overheating could have been the result of internal leakage in the pump. On one of their service calls, Norwel’s mechanics found that an o-ring had been cut, apparently when the pump was assembled at the factory. According to Mr. Foster, the damaged o-ring could have caused internal leakage. However, John Deere’s experts testified that because of the location of the o-ring, only external leakage would have resulted, which would not have caused overheating.

John Deere contends that the failure of the hydraulic system was brought on by Willett’s poor maintenance of the machine. Some of Willett’s employees testified that at times a brand of hydraulic oil and filters other than John Deere’s were used in the machine. John Deere showed that the other filters that were used were inferior to its filters in that they were not able to remove as many particles from the oil and they would burst at a much lower pressure. It was also shown that the storage of the other brand of oil in large, unsheltered drums could have caused it to become mixed with water which condensed inside the drums. However, according to the undisputed testimony of Willett’s employees, for at least the first five or six months of the machine’s operation only John Deere oil and filters were used. Norwel’s work orders showed that in the first few months its mechanics changed the oil and filters several times. According to Willett’s employees, the only time they added oil was when oil was lost because a hose broke or became dislodged. On those occasions, they added John Deere oil, which was stored in five gallon containers in the back of a covered truck.

After considering all of the evidence presented at the trial, the trial judge concluded that Willett had failed to prove that there was a redhibitory defect in the design of the John Deere Wheel Loader or in the design or manufacture of the Rome assembly. He found, however, that Willett had proved that there was a manufacturing defect in the John Deere Wheel Loader.

The principles of law applicable to this kind of case were fully summarized by the Louisiana Supreme Court in the following excerpt from its opinion in Rey v. Cuccia, 298 So.2d 840 (La.1974).

“In Louisiana sales, the seller is bound by an implied warranty that the thing sold is free of hidden defects and is reasonably fit for the product’s intended use. Civil Code Articles 2475, 2476, 2520; Media Production Consultants, Inc. v. Mercedes-Benz of North America, Inc., 262 La. 80, 262 So.2d 377 (1972). The seller, of course, can limit this warranty by declaring to the buyer the hidden defects at the time of the sale, Article 2522, or can otherwise limit his obligations as seller, providing he do so clearly and unambiguously, Article 2474.
“A redhibitory defect entitling the buyer to annul the sale is some defect in the manufacture or design of a thing sold ‘which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice.’ Article 2520. Upon proof of such a defect, the buyer is entitled to annul the sale and recover the purchase price, rather than being limited to recovering the cost of curing any such substantial defects. Prince v. Paretti Pontiac Company, Inc., 281 So.2d 112 (La.1973).
“The buyer must prove that the defect existed before the sale was made to him. Article 2530. However, if he proves that the product purchased is not reasonably fit for its intended use, it is sufficient that he prove that the object is thus defective, without his being required to prove the exact or underlying cause for its malfunction. J. B. Beaird Co. v. Burris Bros., 216 La. 655, 44 So.2d 693 (1949); Crawford v. Abbott Automobile Co., Ltd., 157 La. 59, 101 So. 871 (1924); Stumpf v. Metairie Motor Sales, Inc., 212 So.2d 705 (La.App. 4th Cir. 1968); Fisher v. City Sales and Service, 128 So.2d 790 (La.App. 3d Cir. 1961).
“The buyer may prove the existence of redhibitory defects at the time of the sale not only by direct evidence of eyewitnesses, but also by circumstantial evidence, giving rise to the reasonable inference that the defect existed at the time of the sale. Fisher v. City Sales and Service, 128 So.2d 790 (La.App. 3d Cir. 1961); Mattes v. Heintz, 69 So.2d 924 (La.App.Orl.1954); Standard Motor Car Co. v. St. Amant, 18 La.App. 298, 134 So. 279 (1st Cir. 1931). As stated in Jordan v. Travelers Insurance Co., 257 La. 995, 245 So.2d 151, 155: ‘. . . proof by direct or circumstantial evidence is sufficient to constitute a preponderance when, taking the evidence as a whole, such proof shows the fact or causation sought to be proved is more probable than not.’
“If the defect appears within three days following the sale, it is presumed to have existed before the sale. Article 2537. However, even where the defect appears more than three days after the sale (as here, when it appeared on the second day of use, but ten days after the sale), if it appears soon after the thing is put into use, a reasonable inference may arise, in the absence of other explanation or intervening cause shown, that the defect existed at the time of the sale. An- dries v. Nelson, 46 So.2d 333 (La.App. 1st Cir. 1950); Standard Motor Car Co. v. St. Amant, 18 La.App. 298, 134 So. 279 (1st Cir. 1931). See, for similar principle, when a constructed thing fails shortly after being put into use. Joyner v. Aetna Casualty & Surety Co., 259 La. 660, 251 So,2d 166 (1971).”

After carefully examining the evidence in the record in light of those principles, we cannot say that the trial judge’s findings are manifestly erroneous. They will, therefore, not be disturbed. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

John Deere’s other specification of error is concerned with the trial court’s award of damages to Willett. The trial court found that because of the chronic overheating of the machine, which required that it be shut down and allowed to cool during the workday, Willett was not able to fill all of its orders for wood chips. The failure to fill those orders resulted in a loss of income. John Deere does not dispute Willett’s proof as to its loss or the trial judge’s finding that it was caused by the malfunctioning of the machine. It simply argues that Willett is not entitled to damages because its business venture was unprofitable at its inception. We disagree. Although it is clear that Willett’s endeavor would have been unprofitable even if the machine had functioned perfectly, its poor performance resulted in a loss to Willett. As a manufacturer, John Deere is presumed to know of the defects of the thing which it manufactures, and under LSA-C.C. Art. 2545, it is liable to the buyer for the damages it caused. Alexander v. Burroughs Corporation, 359 So.2d 607 (La.1978).

We turn now to Willett’s arguments with respect to the credit given to John Deere and Norwel for its use of the machine. The issue raised by those arguments was addressed by the Louisiana Supreme Court in Alexander v. Burroughs Corporation, supra, wherein the court said:

“A credit for a purchaser's use of a product may be proper in certain instances, even in favor of a'bad faith seller. In the absence of specific provisions punitive damages are not obtainable in Louisiana; the object of the provisions governing redhibitory vices is to restore the purchaser, as much as possible, to the condition he enjoyed prior to the sale. Compensation for the buyer’s use, however, ought not be granted automatically by the courts; even the value of an extensive use may be overriden by great inconveniences incurred because of the defective nature of the thing and constant interruptions in service caused by the seller’s attempts to repair.”

It is clear from that language that the trial court has discretion to allow a credit for use if such a credit is warranted under the facts of a particular case. After reviewing the facts of this case, we agree with the trial judge that a credit was in order.

Undoubtedly, Willett was inconvenienced by the time lost when the machine was being repaired or allowed to cool. Nevertheless, the machine was not totally useless. In the 15 months that Willett used it, Wil-lett was able to produce approximately 60% of the wood chips that were ordered and realized a gross income of over $237,000. Mr. Glen Manzer, president of Norwel, testified that the rental value of the machine was $4,869.00 per month. The trial judge correctly held that John Deere and Norwel were not entitled to a credit for the full rental value due to the poor performance of the machine. He concluded that $2,00d per month was a reasonable amount and allowed a credit of $30,000 for the 15 months that Willett used the machine.

Willett points out that it was only paying $1,777.38 per month for 4he machine. However, we do not find it at all unusual for the rental price of such a machine to be considerably higher , than the deferred payments provided for in a credit sale. The difference reflects the cost of repairs not covered under the warranty and depreciation. Willett would have had to bear those costs in addition to its monthly payments on the purchase price if the sale had not been rescinded. Under these circumstances, we do not believe that the trial judge abused his discretion in allowing a credit of $30,000.

The only remaining matters to be disposed of are the requests for additional attorney’s fees. Willett and Norwel were awarded attorney’s fees by the trial court. Those awards are clearly authorized by LSA-C.C. Art. 2545, and we believe that Norwel is entitled to an increase for the additional attorney’s fees which it incurred in order to protect its rights on appeal. Conlay v. Houston General Insurance Company, 370 So.2d 196 (La.App. 3rd Cir. 1979). Willett is not only protecting its rights on appeal, however. It sought additional relief, which was denied. In view of that fact, we find that it is not entitled to additional attorney’s fees. Conlay v. Houston General Insurance Company, supra.

Accordingly, that portion of the judgment which is rendered in favor of Norwel and against John Deere awarding Norwel $2,500 is amended to increase the award to $3,250. As amended, the judgment is affirmed. All costs of this appeal are assessed against John Deere Industrial Equipment Company.

AMENDED AND AFFIRMED.


author: SWIFT, Judge.

text:
    PAROCHIAL EMPLOYERS RETIREMENT SYSTEM OF LOUISIANA, Plaintiff-Appellant, v. STATE of Louisiana, THROUGH THE ATTORNEY GENERAL, et al., Defendants-Appellees.
    No. 7305.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1980.
    Whitehead & McCoy, Kenneth D. McCoy, Jr., Natchitoches, for plaintiff-appellant.
    Hunt, Godwin, Painter & Roddy, Fred R. Godwin, Lake Charles, William T. Reeves, Jr., Baton Rouge, for defendants-appellees.
    Before GUIDRY, SWIFT and LA-BORDE, JJ.
   SWIFT, Judge.

The. appellant, Parochial Employees Retirement System of Louisiana, has brought this suit for a declaratory judgment to test the constitutionality of Act 617 of 1976 (LSA-R.S. SStflSl^). Made defendants are the State of Louisiana and Rodney Vincent, the Calcasieu Parish engineer and parish administrator on October 1, 1976, for whose sole benefit the act allegedly was passed.

Defendant Vincent interposed a peremptory exception on grounds of no cause or no right of action which the trial judge referred to the merits without objection. Upon the conclusion of the trial the judge rendered judgment sustaining the exception on both grounds, primarily because he did not find there was a justiciable controversy. The system has appealed from this adverse judgment.

Articles 1971 et seq. of the Louisiana Code of Civil Procedure govern declaratory judgments in Louisiana. Persons whose rights, status, or other legal relations are affected by a statute may have determined any question of construction or validity arising under the statute. (Article 1872). The declaratory judgment provisions are to be liberally construed and administered in order to settle and afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations. (Article 1881).

In Stoddard v. City of New Orleans, 246 La. 417, 165 So.2d 9, 11 (1974), our supreme court, commenting on a party’s right to proceed for a declaratory judgment, stated:

"These codal articles create a procedural device by which the courts may make a declaration of rights without executory or coercive relief. The articles are remedial in nature and must be liberally construed. Basic to the exercise of these procedures, however, is the existence of a justiciable controversy. The courts are without power to render advisory opinions on abstract questions." (Emphasis added.)

The court reiterated the requirement of a justiciable controversy for a declaratory judgment and the proscription against advisory opinions in Abbott v. Parker, 259 La. 279, 249 So.2d 908, 918 (1971), and added:

“A ‘justiciable controversy’ connotes, in the present sense, an existing actual and substantial dispute, as distinguished from one that is merely hypothetical or abstract, and a dispute which involves the legal relations of the parties who have real adverse interests, and upon 'Which the judgment of the court may effectively operate through a decree of conclusive character. Further, the plaintiff should have a legally protectable and tangible interest at stake, and the dispute presented should be of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.”

The Stoddard case involved an attack by taxpayers on the constitutionality of LSA-R.S. 51:1201 which authorized parishes, municipalities and port authorities to join together and take action to promote industrial development in their combined area. The court said:

"In the instant case, the statute is permissive only. To place the statute into operation requires action by the local governing authorities.
“The petition does not allege that the City of New Orleans has taken any action to implement the statute. On the contrary, the allegations disclose that the City has not implemented it. The plaintiffs seek an injunction on the theory that some action ‘might be initiated’ to implement the statute.
“The petition, in our opinion, affirmatively discloses the absence of a justiciable controversy. A statute cannot be challenged in the abstract. As we have observed, the statute is permissive only. To render it operative requires implementation by the local governing authority, the City of New Orleans. That authority has taken no action to implement it, and whether or not it will ever do so is entirely discretionary. Under the circumstances, we cannot assume that it will act. Clearly, the present attack upon the constitutionality of the statute does not present a justiciable controversy.” (Emphasis added.)

To the same effect are Rambin v. Caddo Parish Police Jury, 316 So.2d 499 (La.App. 2 Cir. 1975); Atchafalaya Basin v. Pequet, 364 So.2d 610 (La.App. 1 Cir. 1978).

As in Stoddard, the statute sought to be declared unconstitutional in the suit before this court is permissive only. It provides that the parish engineer and administrator is entitled to credit for all service in the employment of Calcasieu Parish, including that rendered before he became a member of the system. However, to obtain the pri- or service credit he must apply therefor and pay additional sums into the system.

Like the trial judge, we do not find any allegation or proof that Mr. Vincent has or is going to implement the prior service credit provisions of LSA-R.S. 33:6151.2 by proper application to the board of trustees and payment into the system of some $97,820.70. Therefore, no justiciable controversy exists herein and the exception of no cause of action was properly sustained.

In view of the conclusion we have reached, it is unnecessary for us to consider the other contentions urged by the parties.

For the foregoing reasons, the judgment of the district court is affirmed insofar as it sustains the peremptory exception of no cause of action and dismisses this suit.. The costs of court are assessed to plaintiff-appellant insofar as the law allows.

AFFIRMED.

      . The statute provides, in pertinent part:
      “A. Notwithstanding any other provision of law to the contrary, any person who is a member of this system on October 1, 1976 by virtue of being the parish engineer and parish administrator for the parish of Calcasieu, and who was formerly the parish engineer for said parish, shall be entitled for credit for all service rendered in the employment of Calcasieu Parish for which he does not otherwise have credit.
      “B. In order to obtain credit for this service, the member shall apply therefore to the board of trustees and furnish a detailed statement of all service for which credit is claimed. In addition, with respect to service rendered on and after the date of establishment of this system, the member shall pay into the system . With respect to service which was rendered prior to the establishment of this system, the member shall pay . . ”


author: DOMENGEAUX, Judge. CULPEPPER, Judge,

text:
    Dale GAGNARD et al., Plaintiffs and Appellees, v. The TRAVELERS INSURANCE COMPANY, Defendant and Appellant.
    No. 7333.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1980.

      Gold, Little, Simon, Weems & Bruser, Edward E. Rundell, Alexandria, for defendant and appellant.
    Knoll & Knoll, J. Eddie Knoll, Marksville, for plaintiffs and appellees.
    Before CULPEPPER, DOMENGEAUX and STOKER, JJ.
   DOMENGEAUX, Judge.

This is a suit for benefits under a fire insurance policy. Plaintiffs’ air conditioning system was damaged by lightning. The trial judge awarded policy benefits of $3,116.50, plus 12% penalties and attorney’s fees of $1,000.00. The defendant insurer appeals only as to the award of penalties and attorney’s fees. Plaintiffs answered the appeal, seeking an increase in the benefit award to $5,347.56, an increase in the penalties from 12% to 25%, and an additional $1,000.00 as attorney’s fees for services on. appeal.

The issues on appeal are: (1) Should the loss benefits be increased? (2) Did the trial judge err in awarding penalties and attorney’s fees? (3), Should additional attorney’s fees be awarded for services on appeal?

The essential facts are as follows: Plaintiffs, Dale and Milburn Gagnard, own and operate a tavern and pool hall in Marksville, Louisiana. On August 20, 1978, lightning struck the building and caused damage to the air conditioning system. Dale Gagnard contacted Marsden Couvillion, who attempted repairs to the unit on August 21, 1978, at a cost of $470.74, and again on September 10, 1978, at a cost of $856.48.

On September 21, 1978, the unit shut down for the third time. Couvillion then informed the Gagnards that the entire system would have to be replaced. According to the testimony at trial, the lightning caused an acid accumulation which, in this particular case, was so extreme that it could not be flushed out as had been expected. The complete system was replaced at a cost of $4,020.63. This and the previous costs, a total of $5,347.56, were paid by the plaintiffs.

It was stipulated at trial that lightning caused the damage to the air conditioning system, and that replacement was necessary.

AMOUNT OF LOSS

Plaintiffs argue on appeal that the trial court erred in not finding the defendant liable for the combined costs of repair and replacement under Section F, 1, b of the policy. This issue involves the following policy provisions:

“F. Basis of Loss Payment
“1. Applicable to Coverages A and B Unless Otherwise Specified — Determination of Value of that Part of the Property Sustaining Loss
“a. Property Owned by Named Insured — The value shall be the actual cash value of the property or the cost to repair or replace the property with material of like kind and quality within a reasonable time after loss, whichever is less.
“The foregoing provision shall not apply, however, to property for which the loss is adjusted under the ‘Replacement Cost Provision’ hereunder or the following property for which the value shall be determined as described.
* * * * * *
“b. Replacement Cost Provision— Property Owned by the Named Insured — This provision (when applicable) applies only to a loss insured against by the STANDARD, BOARD or SPECIAL FORM, whichever applies.
“The Named Insured may elect to make claim disregarding this provision and make further claim for any additional amount brought about by this provision, provided The Travelers is notified in writing within 180 days after loss of the Named Insured’s intent to make further claim.
“(1) Value of the Property — The value of the property shall be the lesser of the following:
“(a) the replacement cost of the property equivalent to the property sustaining the loss on the same premises and intended for the same occupancy and use; or
“(b) the amount actually and necessarily expended in repairing or replacing the property sustaining the loss and intended for the same occupancy and use.
“(2) This Provision Does Not Apply:
******
“(f) to carpeting, awnings, air conditioners; domestic appliances or outdoor equipment;
******
“h. Definitions
“(1) ‘Actual Cash Value’ means replacement cost less depreciation of that part of the property sustaining loss at the time and place of loss. Depreciation includes obsolescence.
“(2) ‘Limit of Liability’ means the limit specified in the declarations or specified in any form or endorsement made part of the policy, whichever is less, applying to the property.
“(3) ‘Replacement Cost’ means the full cost of repair or replacement at the time and place of loss without deduction for depreciation, but does not include the cost occasioned directly or indirectly by enforcement of any ordinance or law regulating the construction, repair or demolition of any building.”

Section F of the policy includes two methods of determining the amount owed for a loss. Ordinarily, the value of a loss is determined under Section F, 1, a, which provides for payment of the lesser of either the actual cash value or the cost to repair or replace. This same section also provides that it does not apply where the loss is adjusted under the “Replacement Cost Provision.”

Plaintiffs now contend that the Replacement Cost Provision applies. This is clearly incorrect because air conditioners are listed among the items specifically excluded from adjustment under the replacement cost provisions in Section F, 1, b(2)(f). Therefore, Section F, 1, a applies.

As defined in Section F, 1, h, (1) actual cash value means replacement cost less depreciation. Therefore, the trial court correctly awarded $3,116.50, which is the replacement cost of $4,020.63, less $804.13 for three years depreciation over a useful life of 15 years, and less the deductible of $100.00 provided in the policy.

PENALTIES AND ATTORNEY’S FEES

The second issue on appeal is the trial court’s award of penalties and attorney’s fees under LSA-R.S. 22:658, which provides:

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

Although the system was damaged by lightning on August 20, 1978, plaintiffs made no proof of loss until October 12, 1978. They testified they simply did not think of the loss being covered by their insurance until this was suggested by an air conditioning supply salesman. Plaintiffs then contacted Andre Coco, their insurance agent in Marksville, and learned that the loss was covered by the fire policy issued by Travelers. They filed a claim and proof of loss with Coco on October 12, 1978.

Mr. Ted Duggan, local adjuster for Travelers, received the proof of loss on October 15, 1978. He examined the air conditioning system on October 17, 1978. Duggan testified that since the compressor which was damaged by lightning had been replaced and removed from the premises, he was unable to determine whether it had been damaged by lightning. He also noted there was no “burned smell” in the system.

Duggan’s file notes that on November 1, 1978, he received a call that plaintiffs had obtained a “third letter from some engineer to say that the compressor had lightning damage.” Apparently, this refers to a letter dated November 3, 1978, from Mr. Raymond J. Dunn, an electrical engineer, stating that he had inspected the air conditioning system and was of the opinion that a voltage surge produced by lightning had damaged it. This same opinion had previously been expressed by Mr. Couvillion, the air conditioning repairman who had performed the repairs and finally replaced the system.

Duggan testified he was still not satisfied with the proof of loss, so he contacted a Mr. Ray Gates, an air conditioning repairman, who expressed the opinion that any compressor damage by lightning could have been repaired. Duggan’s file contains a notation dated November 6, 1978, that Gates “feels the unit was not cleaned out properly.”

In about mid-November, 1978, Duggan received copies of the letter from Mr. Dunn, the electrical engineer. Duggan already had Couvillion’s opinion that the damage was caused by lightning. So Duggan then contacted plaintiff and offered to settle the claim for $1,600.00. Duggan’s file indicates this offer was rejected, and that plaintiff demanded $2,500.00.

Plaintiffs then employed an attorney who ' •wrote a letter of demand to Duggan dated November 28, 1978, enclosing copies of the repair bills, replacement bill, and opinions of the experts that the damage was caused by lightning. Duggan’s file contains a note dated December 5, 1978, that he discussed the claim with Traveler’s attorney and they decided to make an offer of $1,563.00. Plaintiffs’ attorney denies that this alleged oral offer was ever actually made. The transcript of evidence contains another letter of demand for payment of $5,347.00 by plaintiffs’ attorney of date, December 12, 1978. Receiving no response from this demand, plaintiffs’ attorney filed this suit on January 8, 1979.

On March 1, 1979, defendant tendered to plaintiffs’ attorney a check in the sum of $1,520.15 in settlement of the claim. This offer was rejected, and the check returned.

The trial judge found defendant was arbitrary and capricious under LSA-R.S. 22:658 in failing to pay the claim within 60 days after receipt of satisfactory proof of .loss. We conclude the record amply supports this finding of fact. Even if the original proof of loss filed on October 12, 1978, was not satisfactory, within the meaning of LSA-R.S. 22:658, the subsequent letter by Mr. Dunn, the electrical .engineer, which corroborated Mr. Couvillion’s previous opinion, both of which were received by defendant’s adjuster at least by mid-November of 1978, constituted satisfactory proof of loss. After receiving this proof, the adjuster did nothing further to investigate the claim, except possibly to talk again to Mr. Gates. The record is not clear as to whether the adjuster talked to Mr. Gates before or after he tried to negotiate a settlement for the sum of $1,600.00. Defendant had no serious defense to the contention that the damage was caused by lightning. As stated above, it was stipulated at the trial that lightning caused the damage.

Nor can defendant justify its failure to pay the claim by the alleged offer of $1,600.00, or by the tender of $1,520.00 which was not made until after this suit was filed. For the reasons stated above, the plaintiffs were entitled under the provisions of the policy to much more than defendant offered. We affirm the finding that plaintiff is entitled to penalties and attorney’s fees.

The next question concerns the amount of penalties. Plaintiffs argue that the trial judge erred in awarding penalties of 12%, contending that penalties of 25% are due. Plaintiffs are in error. The last sentence of LSA-R.S. 22:658, which imposes a 25% penalty, applies only to motor propelled vehicles and like property. Witherwax v. Zurich Insurance Company, 315 So.2d 420 (La.App. 3rd Cir. 1975); Welch v. New York Underwriters Insurance Company, 145 So.2d 376 (La.App. 3rd Cir. 1962).

The defendant questions the sum upon which penalties are due, arguing that there was an unconditional tender of $1,520.15 on December 5, 1978, within 60 days of plaintiffs’ proof of loss. The trial court obviously resolved the issue of the alleged December offer against defendant. Upon examination of the record, we cannot say the trial court was clearly wrong. As was stated in Witherwax, supra :

“Under the jurisprudence of this state, if the insurer conditions its offer to pay an undisputed amount on the insured’s acceptance thereof in full settlement, it is not a ‘tender’ within the contemplation of LSA-R.S. 22:658, as it is not absolute and unconditional. Spano v. Emmco Ins. Co., 239 So.2d 434 (La.App. 4th Cir. 1970), writ refused, 257 La. 168, 241 So.2d 530 (1970); Guillory v. New York Fire & Marine Ins. Co., 201 So.2d 366 (La.App. 3rd Cir. 1967); Sensat v. State Farm Fire & Casualty Co., 176 So.2d 804 (La.App. 3rd Cir. 1965), writ refused, 248 La. 419, 179 So.2d 17 (1965).”

Therefore, penalties of 12% are due upon the sum of $3,116.50, not including legal interest due thereupon for nonpayment.

Concerning the issue of the exces-siveness of attorney’s fees, it was stated in Hebert v. Loffland Brothers, 363 So.2d 969 (La.App. 3rd Cir. 1978) that:

“. . . it is well settled that the amount awarded therefor is left largely to the discretion of the trial court. Artigue v. Louisiana Farm Bureau Mutual Insurance Company, 339 So.2d 880 (La.App. 3rd Cir. 1976).”

A review of the record indicates that the amount awarded was not unreasonable. Viewing the attorney’s fee award by the trial court in the factual context of this case, and considering the broad discretion which is afforded the District Judge in such matters, we conclude that said award is neither inadequate nor excessive, and hereby affirm same. Carter v. Roy O. Martin Industries, Inc., 336 So.2d 1002 (La.App. 3rd Cir. 1976).

Plaintiffs also request additional attorney’s fees for the legal services required on appeal. An increase in attorney’s fees for services on appeal is usually awarded when the defendant appeals and obtains no relief on appeal, and the plaintiff requests it in accordance with proper appellate procedure. The basis for awarding additional attorney’s fees is that the litigant successful at the trial level must incur additional expenses, which would not have otherwise been incurred, in order to protect his rights on appeal. Horn v. Vancouver Plywood Corporation, 322 So.2d 816 (La.App. 3rd Cir. 1975). In this case, plaintiffs are not simply protecting their rights relative to defendant’s appeal, but they are also seeking, by answer to the appeal, additional relief denied at the trial level, viz., an increase in the award of the trial court from the sum of $3,116.50 to the sum of $5,347.56, and an increase in the percentage of penalties from 12% to 25%. As shown herein, plaintiffs’ request for additional relief not granted at the trial level is being denied on this appeal, therefore, under these circumstances, we find that additional attorney’s fees for services rendered on appeal are not warranted. Conlay v. Houston General Ins. Co., 370 So.2d 196 (La.App. 3rd Cir. 1979). (The Louisiana Supreme Court has granted writs in Conlay, at 371 So.2d 618, but no decision has yet been rendered by that court. The substantial issue in Conlay was the question of plaintiff’s disability.)

For the above reasons the judgment of the District Court is affirmed. Costs on appeal are assessed one-half to plaintiffs and one-half to defendant.

AFFIRMED.

CULPEPPER, J., dissents in part and assigns written reasons.

CULPEPPER, Judge,

dissenting in part.

I dissent from that portion of the majority opinion which denies to the plaintiff additional attorney’s fees for services rendered by his attorney on appeal. Although I agree with the general statement in Conlay v. Houston General Insurance Company, 370 So.2d 196 (3rd Cir. 1979), that “[t]he basis for awarding additional attorney’s fees is that the litigant successful at the trial level must incur additional expenses, which otherwise would not have been incurred, in order to protect his rights on appeal.”, it is my view that even applying this rule to the present case, the plaintiff is nevertheless entitled to at least an additional $500 for services rendered by his attorney on appeal.

In the present case, the plaintiff did not appeal. The defendant-insurer appealed, seeking reversal of the trial court’s award of 12% penalties and $1,000 for attorney’s fees. To protect this award by the trial court, it was necessary for the plaintiff to pay his attorney for additional services rendered on appeal. Although it is true that plaintiff answered the appeal, seeking an increase in the award for insurance benefits and an increase in the penalties from 12% to 25%, both of which we deny, the principal issue on appeal is whether the trial court erred in granting penalties and attorney’s fees. As I read the record and the briefs, the relief sought by plaintiff in his answer to the appeal did not present serious issues. Of course, it would be speculative to say that plaintiff would not have sought appellate relief, had not defendant appealed, but, nevertheless, it is clear that the principal issue on appeal is the award of penalties and attorney’s fees by the trial judge. On this issue, the plaintiff has prevailed on appeal.

I fear the effect of the majority ruling will be to unduly discourage answers to the appeal. An appellee will be less likely to answer the appeal at the risk of denial of an additional fee for services rendered by his attorney on appeal.

For the reasons assigned, I respectfully ■ dissent in part.

      . While legal interest upon the unpaid penalties and attorney’s fees, themselves, may be due, the 12% penalties are to be calculated upon the amount of the “loss”, alone. Doty v. Central Mutual Insurance Company, 186 So.2d 328 (La.App. 3rd Cir. 1966).