author: CUTRER, Judge.

text:
    Alex CORMIER, (Mr. and Mrs.), Plaintiff-Appellant, v. Sherwood RANSOM and Jack P. Wood, Defendants-Appellees.
    No. 82-62.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1982.
    Harold L. Savoie, Lafayette, for plaintiff-appellant.

      Bean & Parker, Ernest L. Parker, Jean-sonne, Gibbens, Blackwell & Briney, Patrick J. Briney, Lafayette, for defendants-appel-lees.
    Before FORET, CUTRER and STOKER, JJ.
   CUTRER, Judge.

This suit was filed by Alex Cormier and his wife seeking the enforcement of a provision for revendication in an act of sale of immovables or, alternatively, for the payment of the principal and interest due on a note executed by the defendant, Sherwood Ransom. The trial court rendered a judgment denying the demand for revendication and awarded Cormier his alternative demand for the payment of the balance of the principal and interest due on the promissory note. We affirm.

On May 7, 1970, Cormier conveyed to Ransom a tract of land situated in Lafayette Parish. It was filed of record the same day. The conveyance was made by act of credit sale. In partial payment of the purchase price, Ransom delivered to Cormier a promissory note for $10,375.00, made payable to the order of Alex Cormier. It was to be paid in equal monthly installments of $100.00 commencing on June 7, 1970, until paid in full. The credit portion of the sale was secured by a vendor’s privilege and special mortgage.

In addition, the act of sale contained the following provision:

“Purchaser expressly agrees to execute in favor of Alex Cormier, vendor, an act of retrocession of the above described property herein conveyed in the event that he fails to pay any two (2) monthly installments on the promissory note identified herewith. Purchaser’s failure to make said payments shall give Alex Cor-mier ipso facto right to an act of retrocession.”

Ransom transferred the property to Jack P. Wood on March 8, 1972. Wood was also made defendant herein. Ransom, however, continued to make the monthly payments on the credit sale note until May 1980. Ransom failed to make payments for the months of June and July. The balance of the note was $2,664.00. After demand for payment was made upon Ransom, he went to Cormier and offered to pay the entire balance due on the note. The offer was refused by Cormier as he wanted the land returned. Suit by Cormier was filed thereafter on October 9, 1980.

Cormier filed the suit seeking to enforce the above provision for revendication or, in the alternative, payment of balance of the principal, interest and attorney’s fees. The trial court rendered judgment denying the demand for revindication and awarded the plaintiff $2,664.00 together with legal interest from date of judicial demand until paid. No attorney’s fees were allowed. Cormier appealed this judgment.

The substantial issue presented is whether the trial court erred in denying the right of revendication or return of the property.

Cormier contends that the revendication provision of the credit sale gives him a right to have the land returned when Ransom became delinquent in his payments for two months. We disagree. The trial judge correctly interpreted and applied LSA-C.C. art. 2563, which provides as follows:

“If, at the time of the sale of immova-bles, it has been stipulated that, for want of payment of the price within the term agreed on, the sale should be of right dissolved, the buyer mav nevertheless make payment after the expiration of the term, as loner as he has not been placed in a state of default, bv a judicial demand. but after that demand, the judge can grant him no delay.” (Emphasis ours.)

Applying the clear provisions of this article to the facts at hand, Ransom, even though he became delinquent in his payments for two months, retained the right to pay the balance due on the note until he was put in default by judicial demand (October 9, 1980). Since Ransom offered to pay the full amount owing on the note in August 1980, such tender, prior to default by judicial demand, had the effect of rendering the revendication provision of the credit sale unenforceable. See: Southport Mill v. Ansley, 160 La. 131, 106 So. 720 (1926). The trial judge correctly denied the right of revendication under these circumstances.

JUDGMENT ON THE NOTE

The trial court rendered a judgment in favor of Cormier for the balance due on the note, $2,664.00, with legal interest from judicial demand until paid in full. Attorney’s fees in the amount of fifteen percent as provided by the note were not awarded. The trial court correctly denied the claim for attorney’s fees. The note provided as follows:

“... they further agree to pay all attorney’s fees incurred in the collection of this note, or any portion hereof, including interest, which fees are hereby fixed at fifteen per cent of the amount to be collected.”

As we previously pointed out, Ransom had tendered the payment of the note in full before suit was filed. This was refused and Cormier chose to litigate the revendication clause. Tender having been made for payment of the note before suit was filed, attorney’s fees for collection of same shall not be allowed. The trial court correctly so ruled.

For the reasons assigned, the trial court judgment is affirmed. The costs of this appeal shall be paid by the plaintiff-appellant, Alex Cormier.

AFFIRMED.

      . The credit sale and the petition erroneously refers to the provision as a “retrocession” provision.

      . Upon inquiry of the Clerk of this court, the Clerk of Court for Lafayette Parish responded that a second judgment was signed by the trial court on February 9, 1982, which dismissed the suit against Jack Wood. The clerk informs us that no appeal was taken from that judgment. Apparently that judgment is now final and we will make no further reference thereto.


source: Caselaw Access Project

author: LABORDE, Judge.

license: Public Domain

text:
    Daniel LOUVIERE, Jr., Plaintiff-Appellee, v. Clifford James BROUSSARD, Defendant-Appellant.
    No. 82-63.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1982.

      Gauthier & Cedars, Stanford B. Gauthier, II, Breaux Bridge, for defendant-appellant.
    Fruge & DeJean, Jack C. Fruge, Jr., Lafayette, for plaintiff-appellee.
    Before CULPEPPER, GUIDRY and LA-BORDE, JJ.
   LABORDE, Judge.

Plaintiff, Daniel Louviere, Jr., brings suit against Clifford James Broussard, to cancel a lease and to obtain possession of the object of the lease agreement. Without assigning reasons, the trial court held that defendant, Clifford James Broussard, had breached the lease and thereby ordered the leased movable be turned over to plaintiff. Defendant appeals. We affirm.

On August 11, 1981, Louviere leased to Broussard a Freightliner Tractor and Dors Trailer. The lease called for a lump sum consideration of $4,000.00 plus monthly payments of $1,773.39 up to and through March 10, 1984. Thereafter the monthly rental was reduced for the remaining term of the lease. Broussard also agreed to pay for the titling, registration and licensing of the vehicle.

The lease further provided that if a violation of the agreement continued for a period of five (5) days after written notice of such violation had been given to Broussard, Louviere had the option to either demand the entire rent for the whole term of the lease, or to immediately cancel the lease, or to proceed for the past due installments only reserving his rights to later proceed for the remaining installments.

On October 12, 1981, Louviere sent a certified letter to Broussard making demand for the $4,000.00 due at the signing of the lease, the monthly rental for October, and a license fee in the amount of $482.00. The record shows that this letter was received by Broussard on October 13, 1981.

On October 21,1981, Louviere, relying on LSA-R.S. 9:3261, et seq. filed a pleading entitled “Petition for Rule to Show Cause and Writ of Sequestration”. Louviere prayed that Broussard be required to show cause why the tractor and trailer should not be surrendered. Louviere further requested that a writ of sequestration be issued ordering the Sheriff of St. Martin Parish to sequester the leased property.

The trial court issued a writ of sequestration and set the hearing date for the rule to show cause for November 6, 1981.

Serious dispute arose at the hearing as to whether Louviere’s action was an ordinary or summary proceeding. It appears that the time requirements set forth in LSA-R.S. 9:3261, et seq. were not followed and we further question whether the statutes involved authorize the use of a writ of sequestration in a summary proceeding to surrender possession. Nevertheless, Brous-sard filed an answer and reconventional demand without having objected to the improper use of the summary proceeding. Accordingly, the question of the improper use of this summary proceeding is not before us. The issue we must decide is whether Broussard breached the lease.

Louviere first asserts that the lease was breached by Broussard’s failure to make the $4,000.00 payment at the signing of the lease. The lease agreement, executed in authentic form, recited as follows:

“Lessor acknowledges receipt of the Four Thousand and NO/100 (4,000) Dollar lump sum payment and first monthly rental payment by his presence herein.”

The authentic act is full proof of the agreement contained in it against the contracting parties and their heirs or assigns, unless forgery, fraud or error is alleged and proved. LSA-C.C. article 2236. There was no allegation of forgery, fraud or error in plaintiff’s original petition, and the trial judge refused to allow parol evidence by plaintiff to show that the $4,000 was never paid. On the record before us, we cannot find a breach of the lease on this ground.

Louviere also asserts that the October rental payment was not made. The record contains Broussard’s check which was received in payment of the October rental. Louviere testified that he received this payment during the first part of October. This evidence shows the October payment was made. Louviere’s assertion to the contrary is invalid.

Finally, Louviere asserts that Brous-sard breached the lease agreement by failing to pay for a $482.00 license fee that had been paid by Louviere.

The record shows that on October 13, 1981, Broussard received written notice that the payment was due. Under the terms of the lease, Broussard had five (5) days from this date to fulfill his obligation to pay for the fee. On October 19, 1981, six (6) days after written notice was received, Brous-sard tendered payment to Louviere. Louvi-ere refused acceptance.

Broussard asserts that the five (5) day period granted him by the lease did not start running until October 14. We agree. Using this date as the starting point, one finds that the fourth and fifth days fall on Saturday and Sunday, legal holidays. LSA-R.S. 1:55. Citing LSA-C.C.P. Article 5059, Broussard states that these days should not be included in the computation. Article 5059 of the Code of Civil Procedure reads as follows:

“In computing a period of time allowed or prescribed by law or by order of court, the date of the act, event, or default after which the period begins to run is not to be included. The last day of the period is to be included, unless it is a legal holiday, in which event the period runs until the end of the next day which is not a legal holiday.
A half-holiday is considered as a legal holiday. A legal holiday is to be included in the computation of a period of time allowed or prescribed, except when:
(1) It is expressly excluded;
(2) It would otherwise be the last day of the period; or
(3) The period is less than seven days.”

If Broussard’s position is upheld, he would have had up to and including Tuesday, October 20, 1981, to make payment. His tender on October 19, would have been timely and no breach would have occurred.

The plain language of Article 5059 shows that it is applicable when computing time prescribed by law or by order of court. In the present case, the time period prescribed was fixed by the parties to the lease agreement. This time period or term was purely a matter of contract. We do not feel Article 5059 of the Code of Civil Procedure addresses itself to the present situation. Instead, LSA-C.C. Article 2057 provides the proper guidance. Article 2057 states that:

“Art. 2057. Where a term is given or limited for the performance of an obligation, the obligor has until sunset of the last day limited for its performance, to comply with his obligation, unless the object of the contract can not be done after certain hours of that day.”

This article makes no mention of the exclusion of legal holidays from the computation of the term prescribed for performance. The record contains no evidence of an impediment which would have prevented Broussard from performing his obligation to pay for the license fee.

The parties to the lease agreement could have provided for a situation in which the five (5) day term fell on a legal holiday. Absent a contractual stipulation to the contrary we conclude that five (5) days means five (5) straight days. Therefore, Brous-sard’s tender on October 19, six (6) days after notice, was not timely. Since the payment was not timely tendered, Brous-sard breached the lease agreement. Louvi-ere has properly exercised his option to cancel the lease and be put in possession of the leased property.

For the above and foregoing reasons the judgment of the trial court is affirmed. All costs are to be paid by defendant-appellant, Clifford James Broussard.

AFFIRMED.


author: CULPEPPER, Judge.

text:
    RELIABLE RUBBER & PLASTIC MACHINERY COMPANY, INC., Plaintiff & Appellant, v. WIRT MANUFACTURING INC. and McLean Trucking Company, Inc., Defendants & Appellees.
    No. 82-75.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1982.

      Andrus, Preis & Kraft, Ralph E. Kraft, Lafayette, for plaintiff & appellant.
    Voorhies & Labbe, Amos H. Davis, One-bane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell, Chris G. Robbins, Lafayette, for defendants & appellees.
    Before CULPEPPER, GUIDRY and LA-BORDE, JJ.
   CULPEPPER, Judge.

This case originated as a suit by Reliable Rubber and Plastic Machinery Company, Inc. (“Reliable”), against Wirt Manufacturing, Inc. (“Wirt”), for the balance due on the purchase of a hydraulic manufacturing press. Wirt filed a reconventional demand against Reliable alleging that the press in question was defective and demanding return of the portion of the purchase price already paid, plus damages and attorney’s fees. Wirt also filed a third party demand and a reconventional demand against McLean Trucking Company, Inc. (“McLean”), alleging in both demands that if Reliable had not caused the damage to the press, then McLean had caused it during shipment of the press from New Jersey, the situs of the manufacturer, to Lafayette, the home of Wirt. McLean answered both the recon-ventional demand and the third party demand and filed a reconventional demand against Wirt on the Third party demand for $1,342.50 shipping charges, plus attorney’s fees. Reliable then joined McLean as an additional defendant alleging that McLean was liable to them for all sums necessary to repair the hydraulic press. Additionally, an exception of prescription to the claim by Wirt in redhibition was filed by Reliable.

The trial court found the hydraulic press was defective before being shipped by Reliable from New Jersey. The court maintained Wirt’s reconventional demand against Reliable for the following amounts: (a) $21,750 for the purchase price of the press, minus the $7,150 still owed on that purchase price; (b) attorney’s fees in the amount of $7,234.48; and (c) general damages in the amount of $50,000. Additionally, the court rendered judgment in favor of McLean and against Reliable in the following amounts: (a) $1,432.50 (apparently a typographical error — should be $1,342.50) for McLean’s transportation of the press and (b) an expert witness fee in the amount of $6,538.83.

Reliable has appealed all awards. Wirt appealed against McLean only, and did not answer the appeal by Reliable. McLean has not appealed or answered an appeal, and has not even filed a brief in this court.

The general facts as found by the trial court are as follows:

“On or about May 22, 1978, Reliable sold to Wirt a thirty eight inch by forty-two inch (38" X 42") hydraulic press with two (2) — thirty-eight inch by thirty-eight inch (38" X 38") platens for the sum of $21,-750.00. Prior to shipment, Wirt paid to Reliable the sum of $14,600.00. The balance due upon shipment was $7,150.00.

“Said hydraulic press was shipped via McLean Trucking Company on or about June 12, 1978, with anticipated receipt by Wirt no later than June 16, 1978. Wirt actually received said press on June 19, 1978. Upon arrival in Lafayette, the press was inspected by Mr. E.H. Pascal and Mr. Rodney Girouard, employees of Wirt Manufacturing Co. It was at this time that Wirt discovered that six out of a total eight gussets or webbing of the press were cracked from the bottom up the center member of the bottom platen bolsters. These gussets are essentially cantilever supports for a movable ram assembly of the press. Wirt representatives notified Reliable officials of the problems and sought relief. Wirt was told that, for a fee, the unit could possibly be fixed, or, in the alternative, to ship the unit back to New Jersey. No action to repair or correct the problems was thereafter undertaken.”

The ten issues on appeal will be discussed in the order presented in Reliable’s brief.

(1) WAS WIRT’S RECONVENTIONAL DEMAND IN REDHIBITION PRESCRIBED?

Reliable contends Wirt’s demand was filed in excess of one year from the date of the sale and is therefore prescribed. The trial court overruled the exception on the basis of Code of Civil Procedure article 1067. We concur.

Article 1067 states:

“An incidental demand is not barred by prescription or peremption if it was not barred at the time the main demand was filed and is filed within ninety days of date of service of main demand or in the case of a third party defendant within ninety days from service of process of the third party demand.”

As noted by the trial court, it is the nature of Reliable’s business to buy used presses, recondition and/or reconstruct them, and then to resell them to their own customers. This is what occurred in the case of Wirt’s purchase. Reliable embosses its trademark on the outside of the presses. By its complete rebuilding of the machines and by holding itself out as a manufacturer, Reliable becomes the manufacturer for purposes of the redhibition articles. A manufacturer is presumed to know of the defect in the thing made by him. Rey v. Cuccia, 298 So.2d 840 (La.1974). This conclusion of law that Reliable was a manufacturer is not controverted by Reliable on appeal.

Under Civil Code article 2546, prescription on a redhibitory action does not begin to run against a manufacturer until the purchaser discovers the vice. The original suit was filed on June 5,1979. Personal service was obtained on the defendant Wirt on June 8,1979. Wirt discovered the defect in the hydraulic manufacturing press on June 19,1978, when the press was delivered to Lafayette, Louisiana. Thus, the claim was not prescribed when the original suit was filed. The answer and reconventional demand was filed by Wirt on July 15, 1979, less than 90 days after the filing of the original suit. Thus, under LSA-C.C.P. article 1067 Wirt’s claim is not prescribed.

(2) DID THE TRIAL COURT ERR IN FINDING THAT THE DEFECTS IN THE HYDRAULIC PRESS WERE PRESENT WHEN THE PRESS LEFT THE HANDS OF THE MANUFACTURER?

The trial court made a factual determination that a preponderance of the evidence revealed that the defect present in the hydraulic press upon delivery to Wirt Manufacturing in Lafayette, Louisiana was not caused by the negligence of McLean Trucking and did not occur in shipping. Instead, the trial court held that the defects occurred prior to shipping and were present when the press left the manufacturer’s hands. This factual finding of the trial court cannot be disturbed on appeal unless clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). We find no such error.

Mr. John T. Butters, of Engineering Consultants, Inc., of Houston, Texas, was qualified as an expert in the field of mechanical engineering and the field of failure analysis. Butters examined the press on July 13, 1978. He found six cracks among the eight gussets which composed the bolster. He presented photographs of these cracks to the court. He testified that when he examined the gussets of the press he found corrosion, dirt, lint, grease and foreign materials in the cracks. Additionally, he found paint in the cracks which indicated to him that the machine had been painted subsequent to the occurrence of the cracks. He could find no impact damage to the outside of the press. This witness stated it was a physical impossibility for the press to have been damaged in this manner or in this degree during transportation from New Jersey to Lafayette, Louisiana. Mr. Butters based this conclusion on mathematical computations. He stated that in order for the transportation process to have caused the cracks observed in the hydraulic press, it would have been necessary for the tractor and trailer to travel at the rate of 1,200 miles per hour and stop in one second. Mr. Butters concluded the cracks were caused through eccentric loading or overloading of the gussets while still in the hands of Reliable, or before.

No expert testimony is offered by Reliable to dispute these findings. Mr. I. Cohn, the representative of Reliable, testified he really had no idea of what had caused the damage. He stated at one point that for all he knew, the damage could have been caused by someone hitting it with a sledge hammer.

Additionally, the testimony of the personnel from Wirt confirmed that the cracks were found when the tarpaulin covering the press was removed while the press was still located on the truck. This fact was confirmed by the McLean shipping representative who examined the press shortly after its arrival in Lafayette.

There is a clear preponderance of the evidence that the cracks were present prior to the shipping of the machine,

(3) DID THE COURT ERR IN ITS APPLICATION OF THE PRESUMPTION OUTLINED IN CIVIL CODE ARTICLE 2530 THAT IF A VICE APPEARS WITHIN THREE DAYS IMMEDIATELY FOLLOWING THE SALE, IT IS PRESUMED TO HAVE EXISTED BEFORE THE SALE?

The trial court applied Civil Code article 2530 and concluded the defects occurred within three days from the date of sale. We know as a matter of fact that the defects were first discovered upon delivery of the hydraulic press. However, the overwhelming testimony of the witnesses as set forth above makes it obvious that whether or not the three-day presumption under Civil Code article 2530 is applied, the defects were present when the press left the hands of the manufacturer. Because of the overwhelming weight of the testimony, we find it unnecessary to examine the appropriateness of the trial court’s application of the three-day presumption under Civil Code article 2530.

(4) DID THE TRIAL COURT ERR IN AWARDING TO WIRT AGAINST RELIABLE GENERAL DAMAGES IN THE AMOUNT OF $50,000 FOR LOSS OF PROFITS?

(5) DID WIRT HAVE AN OBLIGATION TO MITIGATE THEIR DAMAGES, AND, IF SO, DID WIRT MEET THAT OBLIGATION?

Because of their similarity, we will discuss issues 4 and 5 together. The testimony at trial revealed that Wirt had an agreement with International Mooring & Marine to supply them with bumper rings to be used in the installation of dock and fendering systems on offshore drilling rigs. Art Wirt of Wirt Manufacturing testified that there was no other company in Louisiana which was capable of supplying International Mooring & Marine with this product. Their closest competitor was located in Houston or Fort Worth-Dallas. Because of Lafayette’s proximity to the Gulf, Mr. Wirt testified his company had two advantages over competitors. It was closer to the area which it was supplying, and it could sell the fenders at a cheaper price.

Wirt obtained an agreement with International Mooring & Marine whereby IM&M agreed to reimburse Wirt Manufacturing for one-half of the purchase price of the hydraulic press. Thus, Wirt’s specific purpose in purchasing the press from Reliable was to manufacture fenders for International Mooring & Marine. Wirt proved that at the time it purchased the press it already had an initial order from IM&M for 166 of these rubber bumpers.

Testimony at trial revealed, and it was uncontested on appeal, that the press was not suited for the purposes for which it was intended. Because of the cracks in the gussets, Wirt was afraid to endanger its personnel by using the full power and force necessary to properly mold the rubber rings. After production of approximately 50 rings, Wirt ceased manufacturing them out of rubber and began experimenting with different processes. Eventually, Wirt ended up manufacturing the rings out of a urethane product. The cost of this urethane was approximately three times that of the rubber. Even considering the manufacturing process and overhead involved in manufacturing the bumpers out of rubber, Wirt lost money on each bumper manufactured out of the urethane compound.

After discovering this hard economic fact, Wirt received additional orders on the phone from IM&M for 250 more rings. They went ahead and filled this order with the urethane rings. Wirt was able to renegotiate a better price per ring, but this price still fell short of the actual cost of manufacturing. Mr. Wirt stated that he took a calculated risk in fulfilling these contracts without the use of the press. He did so in hope that he would be able to eventually resolve the problem and capture this newly opened market. Eventually, IM&M made the decision not to pursue the business venture any further. Wirt refunded IM&M all sums they had expended.

Mr. Wirt testified that as a result of having to substitute the urethane compound for the rubber compound, he suffered a loss in the amount of $40,000 to $48,000. Based on figures presented at trial, Wirt calculated he would have made a profit on each bumper ring of $103.32. This means that the expected profit on the initial order of 166 bumper rings for Wirt Manufacturing was $17,098.39. Instead, Wirt was only able to realize his profit on 50 of the bumper rings. On the other 116, Wirt lost $69 per ring, for a loss of $8,400.

On the second order for 250 additional bumper rings, Wirt lost $46.80 per ring, or a total of $11,700. If Wirt had been able to manufacture this order out of the rubber compound, and even keeping the previous lower price, the expected profit to Wirt would have been $25,857.50. The expected profit on the two orders was $43,026.99.

Additionally, there was testimony in the record that there were incidental expenses between $400 and $500 for the connection of the non-functioning press. Mr. Wirt testified that a special mold to make the rubber donuts had been confected by a machine shop to make bumper rings on the non-functioning press at a cost of about $6,000.

We conclude the award of $50,000 general damages by the trial court is amply supported by the evidence.

(6) DID THE TRIAL COURT ERR IN DENYING RELIABLE’S MOTION AT TRIAL TO INSPECT THE PRESS?

During the course of trial, counsel for Reliable made a motion to actually inspect the hydraulic press. This came upon his discovery in the examination of Mr. Butters, McLean’s expert, that he had not taken the platen off of the bolster of the press, to examine this phase of the bolster. The expert testified that based on his other findings, this was unnecessary. Counsel for Reliable then insisted to the court that Reliable had a right to disassemble the machine.

This matter came for trial on August 27, 1981, over two years after the original suit had been filed. The record is composed of approximately 300 pages of pleadings. Among these are extensive interrogatories propounded by all parties. Counsel for Reliable filed at least three requests for production of documents, admissions, etc. The deposition of Mr. Butters had been taken prior to trial. Ample discovery opportunities were afforded to Reliable who could have made this request prior to trial. The trial court has great discretion in such matters. In this case, the interest of justice and expediency justified that Reliable’s request be denied.

(7) DID THE TRIAL COURT ERR IN ITS AWARD OF AN EXPERT WITNESS FEE IN THE AMOUNT OF $6,538.83?

The court awarded an expert witness fee of $6,538.83 to McLean Trucking, who had hired Mr. Butters. The basis of this award was Mr. Butters’ itemized statement to the court which included his fee for over 75 hours of research, as well as his expenses. While his fee is high, the court has great discretion in fixing these matters. Therefore, the award of the trial court is upheld.

(8) DID THE TRIAL COURT ERR IN PERMITTING AN AFFIDAVIT EXECUTED BY WIRT’S COUNSEL AS TO THE AMOUNT OF ATTORNEY’S FEES INTO THE RECORD AFTER THE EVIDENCE WAS CLOSED?

The affidavit of attorney’s fees by Wirt was filed in the record subsequent to the closing of the evidence. Apparently, it was filed at the request of the court. Counsel for Wirt had previously stated its request to submit the bill after the four-day trial was concluded and he had an opportunity to tally up expenses. The court made no verbal acknowledgment of this request at the time. Once again, this was within the discretion of the trial court. We find no abuse of that discretion.

(9) DID THE TRIAL COURT ERR IN AWARDING JUDGMENT AGAINST RELIABLE IN FAVOR OF McLEAN FOR THE SUM OF $1,432.50 DUE McLEAN FOR TRANSPORTATION COSTS?

McLean filed no claim against Reliable for these amounts anywhere in the pleadings. Accordingly, the trial court’s award to McLean must be reversed.

The question remains whether Wirt or McLean are entitled to any relief on appeal in this area. Wirt argues in brief that it is entitled to be reimbursed for these amounts as an additional element of damages. However, Wirt has not answered the appeal of Reliable and has only appealed as against McLean, arguing in the alternative that if this court overturns the finding of liability against Reliable, then McLean should be held liable for Wirt’s damages. Thus, Wirt is not entitled to judgment on appeal against Reliable for the transportation costs. As to McLean, it has not appealed nor answered the appeal of Reliable or Wirt. Accordingly, McLean is entitled to no relief on appeal.

(10) DID THE TRIAL COURT ERR IN DENYING RELIABLE’S MOTION FOR A NEW TRIAL?

Code of Civil Procedure article 1972 (2) states:

“A new trial shall be granted, upon contradictory motion of any party, in the following cases:
* * * * * *
“(2) Where the party has discovered, since the trial, evidence important to the cause, which he could not, with due diligence, have obtained before or during the trial; or”

The basis of Reliable’s motion for a new trial is the opportunity to inspect the machine in question and to dismantel it. As stated above, counsel for Reliable had adequate opportunity to have its experts inspect the machine during the two years prior to trial. Additionally, there is a note in the record that counsel for Reliable had himself in fact inspected the machine. There is no evidence that free access to the machine was ever denied to Reliable. Additionally, counsel for Reliable had previously deposed the expert whose testimony he now claims revealed “new” evidence.

Reliable’s motion for new trial is without merit. The alleged “new” evidence could have been obtained with due diligence prior to trial. The denial of the motion for a new trial is upheld.

For the reasons assigned, the judgment appealed is amended to delete therefrom the award in favor of McLean against Reliable in the sum of $1,432.50 for shipping costs. Otherwise, the judgment is affirmed. All costs of this appeal are assessed against Reliable.

AFFIRMED, AS AMENDED.


author: GUIDRY, Judge.

text:
    Lillian Morace JACKSON, Individually and as Natural Tutrix of her Minor Children, Plaintiffs-Appellants, v. JUSTISS-MEARS OIL COMPANY, INC., Defendant-Appellee.
    No. 82-76.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1982.
    Brumfield & Brumfield, H. Alva Brum-field, III and William P. Brumfield, Baton Rouge, for plaintiffs-appellants.
    Trimble, Randow, Percy, Wilson & Foote, James T. Trimble, Jr., Alexandria, for defendant-appellee.
    Before CULPEPPER, GUIDRY and LA-BORDE, JJ.
   GUIDRY, Judge.

Plaintiff, Lillian Morace Jackson, individually and as Natural Tutrix of her minor children, filed this suit against the defendant, Justiss-Mears Oil Company, Inc. (hereafter referred to as Justiss-Mears), for workmen’s compensation survivor’s benefits based upon allegations that plaintiffs’ decedent, Oliver Ray Jackson, was killed within the course and scope of his employment with Justiss-Mears. The trial court dismissed plaintiffs’ suit on defendant’s motion for summary judgment. From this adverse judgment, plaintiffs appeal. We affirm.

In well-written reasons for judgment, the trial court found the following material facts, which our careful review of the record substantiate to be without dispute:

“The pertinent facts are not in dispute. Oliver Ray Jackson was employed by Jus-tiss-Mears Oil Company on June 30, 1979 as a roughneck in a drilling crew working in Franklin Parish, Louisiana. There were only four men in the crew. Le-beaux was driller and equivalent to foreman, Jackson, Smith and Hudnall were laborers of equivalent rank. After being relieved after a regular shift of work, Jackson, Smith and Hudnall left the rig together in Hudnall’s pickup truck. Hud-nall was driving and became involved in an accident in which Jackson was killed.
No policy, rule or plan of Justiss-Mears Oil Company or the driller required the three workmen to travel together. Hud-nall was not carrying any tools or equipment needed for the job and recieved (sic) no special compensation for the use of his private vehicle. There was no need for them to travel any particular route or any more work for them to do for the employer before returning for the next day’s employment.”

The trial court granted defendant’s motion for summary judgment concluding that under the recited facts Oliver Ray Jackson was killed outside the course and scope of his employment.

The issue on appeal is whether the trial court erred in this conclusion.

In Stephens v. Justiss-Mears Oil Co., 312 So.2d 293 (La.1975), the court expressed the general rule applicable to this situation:

"... an employee is not considered to be in the course and scope of his employment while traveling to and from work. See: Malone, Louisiana Workmen’s Compensation Law and Practice, § 171, page 199 and cases cited in footnote 24....”

Although there are several well recognized exceptions to the application of this general rule, we find none present in the instant case. Jackson was not furnished transportation as an incident of his employment and Justiss-Mears contributed nothing to its employees by way of reimbursement for travel expenses, gasoline, etc. At the time of accident, the truck in which decedent was riding was hauling no tools, equipment or paraphernalia belonging to Justiss-Mears nor were the employees riding in such truck responsible for transportation of any such paraphernalia to or from the job site. Unlike Stephens v. Justiss-Mears Oil Co., supra, on which appellant relies, Jackson was not responsible for assembling the crew and/or assuring that the crew arrived at the job site at the proper time.

In sum, we conclude that the trial court did not err in granting summary judgment denying survivor’s benefits to plaintiffs. For these reasons, the judgment of the trial court is affirmed at appellants’ cost.

AFFIRMED.

      . The record reflects that all roughnecks employed by Justiss-Mears were paid, in addition to their hourly wage, $8.00 per diem. Appellants’ argue that this was paid to reimburse employees for travel expenses. The evidence is clearly to the contrary, reflecting that this $8.00 per diem was paid as a living expense to all roughnecks regardless of whether or not they traveled. Roughnecks, while working in Justiss-Mears’ yard in Jena, were, likewise, paid the $8.00 per diem and such sum did not vary for traveling employees regardless of the distance traveled. All roughnecks were paid this additional sum daily whether they were working in Justiss-Mears’ yard in Jena or on a drilling rig many miles away.


author: DOMENGEAUX, Judge.

text:
    INTERNATIONAL INDEMNITY COMPANY, Plaintiff-Appellant, v. Wilfred Brud SOILEAU, Defendant-Appellee.
    No. 82-78.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1982.
    Brinkhaus, Dauzat & Falgoust, Jerry J. Falgoust, Opelousas, for plaintiff-appellant.
    Soileau & LeJeune, Raymond J. LeJeune, Mamou, for defendant-appellee.
    Before DOMENGEAUX, DOUCET and YELVERTON, JJ.
   DOMENGEAUX, Judge.

Plaintiff, International Indemnity Company, filed this subrogation suit against defendant, Wilfred Brud Soileau. It had paid to its insured, Preston Higginbotham, the sum of $1,425.00 for property damages sustained to the latter’s vehicle when it was involved in a collision with a horse on a State Highway in Evangeline Parish on December 13, 1978, at 1:30 o’clock A.M.

Plaintiff alleged that Mr. Soileau owned the horse, or in the alternative, that he had the care, custody and control of the horse, and consequently was responsible to the insurer for its payout to Higginbotham.

The trial court ruled for defendant and plaintiff appeals. We affirm.

The driver was the insured’s son, Sherman Noel Higginbotham. He testified that as he was coming out of a curve he saw four horses in the road. He managed to dodge the first two horses, but hit the third horse. At the time of the accident, he did not know who owned the horse. He stated that the horse he hit was a “reddish color, but mostly black”.

State Trooper J.C. Bertrand investigated the accident. He testified that according to his report, the driver told him there were three horses. After the accident, he made no attempt to have the horse identified by its owner. Mr. Bertrand testified that the dead horse was a bay horse, the same horse he had seen on previous occasions on land he assumed to be the defendant’s residence. It had no tatoos or brands. The trooper did state at trial that he was not testifying that the dead horse was the defendant’s horse.

The defendant, Mr. Soileau, testified that at the time of the accident, he owned two horses, a paint filly and a black mare. Both horses had been missing for a couple of days before the accident and neither of them were ever found. Soileau admitted his two horses had gotten loose on a previous occasion and that he had to retrieve them from the stock commission. He kept his two horses in his pasture, located on the south side of his house.

The dead horse was removed from the scene and burned by the Louisiana Department of Highways before it was further viewed by anyone.

The trial court ruled in favor of the defendant. It reasoned that the plaintiff had failed to prove by a preponderance of the evidence that the horse involved in the accident was in fact Mr. Soileau’s horse, or in the alternative, in his care, custody, and control.

The issue on appeal is whether the trial court erred in concluding that plaintiff failed in its burden of proving ownership or custody of the dead horse by defendant.

This court in Hickman v. Miller, 405 So.2d 612 (La.App. 3rd Cir.1981) reiterated the rule that it will not disturb on appeal the reasonable evaluations of credibility and inferences of fact simply because another result might be just as reasonable. We may not have decided this case in favor or defendant had we been the trier of fact, however, on the other hand we cannot say that the trial court’s ruling is clearly wrong. A review of the record does reveal some discrepancies and doubt concerning a link between the defendant and the horse involved in the accident. There was no positive identification made of the dead horse, only assumption and speculation. We cannot say that the record does not support the trial court’s conclusion, and we therefore affirm.

All costs of this appeal are assessed against the plaintiff-appellant.

AFFIRMED.


text:
    CENTRAL INDUSTRIES, INC., Plaintiff-Appellee, v. ACADIANA RESERVES, INC. and Tabco Exploration Co., Defendants-Appellants.
    No. 82-85.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1982.
    Writ Denied Dec. 10, 1982.
    Paul J. Guilliot, Lafayette, Steven M. Dowd, Houston, for defendants-appellants.
    Mouton, Roy, Carmouche, Bivins, Judice & Henke, John Bivins, Lafayette, for plaintiff-appellee.
    Before CULPEPPER, GUIDRY and LA-BORDE, JJ.
   GUIDRY, Judge.

In this suit plaintiff, Central Industries, Inc., hereafter Central, sought judgment against defendants, Acadiana Reserves, Inc., hereafter Acadiana, and Tabeo Exploration Company, hereafter Tabeo, in the sum of $40,000.00 plus judicial interest and 10% attorney’s fees. As a basis for recovery of the amount sued for, Central alleged that on May 8, 1980, it completed construction of a board road and turnaround with respect to the drilling of an oil well in Jefferson Davis Parish at the request of Tabeo and/or Acadiana for an agreed price of $40,000.00. Central alleged non-payment despite amicable demand. Acadiana and Tabeo filed answers generally denying the allegations of plaintiff’s petition. During the course of trial, Central moved for and was granted a dismissal, without prejudice, of its claim against Acadiana and the matter proceeded with respect to the claim of Central against Tabeo. The trial court rendered judgment in favor of Central and against Tabeo for the sum of $40,000.00 with legal interest from date of judicial demand and for 10% of such amount as attorney’s fees. Tabeo appealed suspen-sively from that judgment.

The single issue for resolution on appeal is whether the trial court erred in holding Tabeo, rather than an alleged joint venture between Tabeo and Acadiana, responsible for the unpaid obligation.

The record reflects no genuine dispute with regard to any facts material to a resolution of the issue presented for decision.

By an agreement dated April 30, 1979, Tabeo and Acadiana entered into a joint venture for development of leases in the China Field, Jefferson Davis Parish, Louisiana. At all times pertinent to this litigation, Thomas A. Blankenship was the president and chief executive officer of Tabeo and Lee Matherne was the chief executive officer of Acadiana. David Dugas, during the early part of 1980, was employed as an Engineer by Tabeo, his employment with Tabeo having terminated on May 6, 1980.

Sometime during the latter part of April, 1980, Dugas upon specific instructions from Blankenship, in his capacity as president of Tabeo, arranged with Central for the construction of a board road and turnaround at a location in the South China Field for an agreed price of $40,000.00. It is not disputed that all negotiations by Dugas with Central were conducted with the authorization of Blankenship and that Central understood that the job was for Tabeo. Both Dugas and Blankenship candidly testified that neither advised Central that the contracted work was to be done for the account of the joint venture between Acadiana and Tabeo. In this regard, Dugas testified as follows:

“Q. All right. Did you ever tell anyone with Central Industries that the board road and location which they were going to construct — Let me rephrase the question. Prior to the time that Central Industries finished the construction of the board road and the location for the Tietje Number One well, did you ever tell anybody with Central Industries that work that they were doing was to be done for the account of Acadiana Reserves or for the account of any joint venture between Tabeo and Acadiana Reserves?
A. No, sir.
Q. Did you know yourself what that arrangement was?
A. Not in particular.”

and Mr. Blankenship testified as follows:

“Q. All right. Now, is it correct then, Mr. Blankenship, that Tabeo did in fact contract with Central Industries for work to be performed for the location that was proposed for the Teitje well?
A. Yes.
Q. Now, I understand that you contend that this was done in whole or in part because of the relationship that you had with Acadiana Reserves; correct?
A. That’s correct. A joint venture.
Q. All right. Do you recall whether you told anyone at Central Industries that the work was being done either for Acadiana Reserves or for some joint venture between Tabeo and Acadiana Reserves?
A. No, I do not, but it was public knowledge that we had a joint venture between Acadiana and Tabeo.”

The board road and turnaround was completed by Central on May 8, 1980. James McLaurin, the employee who represented Central in all negotiations with Dugas and Blankenship, testified that he always understood that the job in question was contracted solely with Tabeo and was not advised of Acadiana’s alleged involvement until after the job had been completed and an attempt was made to collect the unpaid contract price.

In rendering judgment against Tabeo the trial court stated:

“This piece of work was contracted by Tabeo as Mr. Blankenship very candidly and honestly testified. On Tabco’s stationary they solicited bids. On Mr. Blankenship’s instructions to Mr. Dugas, the bid was accepted. On further confirmation, Mr. Blankenship brought the location plat so they would know where to put the board road and the turnaround and the rig setup. Mr. Blankenship also states that he never told Central, or he doesn’t recall ever telling Central that this was a joint venture between Tabeo and Acadiana. Mr. Dugas testified that he never told Central that this was a joint venture. There’s some dispute as to how much he knew or didn’t know. He states that he knew there was a relationship but the basis, he didn’t know what it was. Mr. Blankenship testified that he had access to all of the records and was party to some of the conversations; he knew everything. But be that as it may, in order for Mr. Blankenship or Tabeo to extricate itself in this contract is to show that Central was aware that Tabeo was simply an agent for a joint venture between Tabeo and Acadiana; and that has not been shown by anyone....”

On appeal, Tabeo asserts error in the trial court’s “applying the law of agency-principal, rather than partnership law to the facts” in its rendition of judgment solely against Tabeo. We find no merit in this contention.

In this case, we are not concerned with the rights inter se Tabeo and Acadiana but only with Central’s right to recovery of judgment for the full amount against Tab-eo. As to this latter, we find no error in the trial court’s conclusion that Central is entitled to judgment.

It is well settled that if an agent acting on behalf of a principal wishes to avoid personal liability, the agent must disclose his status as such and identify his principal. Also well established is the principle that one asserting an agency relationship bears the burden of proving disclosure. Olympic Electric Service, Inc. v. Craig, 286 So.2d 182 (La.App.4th Cir.1973); R.H.S. (Racing Head Service) v. Fallon, 395 So.2d 940 (La.App.2nd Cir.1981), writ refused, 399 So.2d 609 (La.1981). These principles are clearly applicable under the facts disclosed by the record on appeal.

For the foregoing reasons the judgment appealed from is affirmed. Tabeo is cast for all costs of this appeal.

AFFIRMED.

      . Contrary to Mr. Blankenship’s testimony, the record does not support a conclusion that the joint venture between Tabeo and Acadiana was a matter of public knowledge.


text:
    J.B. WILLIS, et al., Plaintiffs & Appellants, v. Joseph C. FRANKLIN, Defendant & Appellee.
    No. 82-98.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1982.

      J. Burton Willis, St. Martinville, for plaintiffs & appellants.
    Plauche, Hartley, Lapeyre & Ottinger, George L. Potter, Jr., Lafayette, for defendant & appellee.
    Before CULPEPPER, CUTRER and LA-BORDE, JJ.
   CULPEPPER, Judge.

This is a suit for dissolution of a mineral lease and damages. The plaintiffs-appellants, J.B. and Celine Durand Willis, are lessors. They were initially joined in the petition by two of their co-lessors, Barry J. and Hazel Comeaux, who later withdrew from the suit. The defendant-appellee is Joseph C. Franklin, the lessee. The defendant filed dilatory exceptions of prematurity and nonjoinder of necessary parties, and peremptory exceptions of no cause of action and nonjoinder of indispensable parties. The trial court held plaintiff’s suit was premature for lack of 30 days written notice of nonpayment of royalties. From a judgment dismissing his suit, plaintiff appeals. We affirm.

At the hearing of the exceptions, evidence was introduced on the exceptions of prematurity and nonjoinder. Through this evidence and stipulations of the parties, the following facts were established.

On January 1, 1979, J.B. Willis, et al, executed a mineral lease in favor of Joseph C. Franklin covering certain properties in St. Martin Parish and providing a Vs royalty to the lessors. A portion of the lease was later included in a conservation unit in which the unit well commenced production in January of 1981.

In early July of 1981, Judge E.L. Guidry, Jr., one of the co-lessors with the plaintiffs, contacted Mr. James Brannon, vice president and land manager of the Hawthorne Oil & Gas Company (assignee of the lease), by telephone regarding payment of royalties due under the lease. In response thereto, Mr. Brannon wrote letters to the crude oil purchaser, Tesoro Crude Oil Company, on July 10, 1981 and July 28, 1981, requesting that the royalties be paid to these lessors at an early date. On August 24, 1981, Judge Guidry wrote to Tesoro himself, advising that he had received their checks for royalties due for the month of July, 1981, but notifying them that he had not received payment of the royalties due from January through June of 1981. A copy of this letter was sent to Hawthorne Oil & Gas.

On September 2, 1981, plaintiff, Mr. Willis, wrote a letter to Teroso demanding payment of the royalties due him and Larry Comeaux, and asking the reason for nonpayment. Also in early September, 1981, Mr. Willis contacted David C. Franklin, land manager for the defendant, by telephone regarding the royalties due. However, this telephone conversation ended unsatisfactorily. Suit was then filed on September 11, 1981.

It was also established by stipulation that cheeks for royalties due were tendered to the plaintiffs Willis and Comeaux by Tesoro on or before September 23,1981. Comeaux kept his, but Willis returned his. On October 23, 1981, Willis received from Tesoro another royalty which he also returned with a letter stating he would not accept any further checks.

The statutory law applicable to this case is set out in the Louisiana Mineral Code, articles 137 through 139, which read as follows:

“§ 137. Nonpayment of royalties; notice prerequisite to judicial demand
If a mineral lessor seeks relief for the failure of his lessee to make timely or proper payment of royalties, he must give his lessee written notice of such failure as a prerequisite to a judicial demand for damages or dissolution of the lease.
“§ 138. Required response of lessee to notice
The lessee shall have thirty days after receipt of the required notice within which to pay the royalties due or to respond by stating in writing a reasonable cause for nonpayment. The payment or nonpayment of the royalties or stating or failing to state a reasonable cause for nonpayment within this period has the following effect on the remedies of dissolution and damages.
“§ 139. Effect of payment in response to notice
If the lessee pays the royalties due in response to the required notice, the remedy of dissolution shall be unavailable unless it be found that the original failure to pay was fraudulent. The court may award as damages double the amount of royalties due, interest on that sum from the date due, and a reasonable attorney’s fee, provided the original failure to pay royalties was either fraudulent or willful and without reasonable grounds. In all other cases, such as mere oversight or neglect, damages shall be limited to interest on the royalties computed from the date due, and a reasonable attorney’s fee if such interest is not paid within thirty days of written demand therefor.”

The reasons for the “written notice” required by Article 137 and the procedure set out in Articles 137-140 are stated in the lengthy Comments under Article 137, which comments we see no need to repeat here.

The statutes are clear and unambiguous with regard to the notice requirement. Article 137 provides that a mineral lessor must give his lessee “written notice” of the lessee’s failure to make timely or proper payment of royalties. This notice is an indispensable prerequisite to a judicial demand for dissolution of the lease or damages. It affords the lessee an opportunity to evaluate a nonpayment situation and to make a decision regarding whether the royalties allegedly due should be paid. When the written notice has been given, the provisions of Article 138 become applicable, and the lessee must pay the royalties due within 30 days of receipt of the notice or respond by stating reasonable cause for nonpayment in writing. If the lessee pays the royalties demanded within 30 days after receipt of the lessor’s written notice, as was done in this case, under Article 139 the remedy of dissolution becomes unavailable to the lessor unless the lessee fraudulently withheld payment. See Arceneaux v. Hawkins, 376 So.2d 362 (La.App. 3rd Cir.1979).

A cardinal rule of our Civil Code is that when a statute is clear and free from all ambiguity, the letter of it is not to be disregarded, under the pretext of pursuing its spirit. LSA-C.C. article 13. The “written notice” requirement of Article 137 is clear and unambiguous.

Plaintiff Willis did not make a written request for payment until September 2, 1981, when he wrote the letter to Tesoro, the purchaser, and mailed a certified copy to Hawthorne. Nine days later, the plaintiffs filed this suit. They did not allege fraud on the lessee’s part, or that 30 days had elapsed since written notice of nonpayment. We conclude that the plaintiffs’ suit was premature, since they did not give the lessee the “written notice” required by LSA-R.S. 31:137.

We reject plaintiffs’ argument that the important word in Article 137 is the noun “notice,” not the adjective, “written.” The argument is that the word “written” is merely directory to make easier the truth-seeking process of whether there was notice. Pursuant to this argument, plaintiffs contend the defendant had actual notice of the nonpayment of royalties from Judge Guidry’s letter of July 10, 1981, a division order signed in July of 1981, and the telephone request described in the above statement of facts. None of these constituted the written notice required by Article 137. Moreover, as to the alleged division order, which plaintiff states was signed by all of the lessors and submitted to Tesoro on July 28, 1981, no such division order nor copy thereof was introduced in evidence at the hearing, and there is no other evidence in the record to support such a claim.

It is noteworthy that the trial judge gave the plaintiffs 15 days within which to amend their petition to include an allegation of the 30 days written notice required by Article 137, if such could be made. The plaintiffs failed to so amend. The trial judge then signed a judgment sustaining the exception of prematurity and dismissing plaintiff’s suit without prejudice.

For the reasons assigned, the judgment appealed is affirmed. All costs of this appeal are assessed against the plaintiffs-appellants.

AFFIRMED.


text:
    Charles R. FREEMAN, Plaintiff-Appellee, v. STATE of Louisiana, DEPT. OF PUBLIC SAFETY, Defendant-Appellant.
    No. 82-110.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1982.
    Ralph W. Stephenson, Jr., Baton Rouge, for defendant-appellant.
    Gore & Shields, Ralph B. Shields, Vidalia, for plaintiff-appellee.
    Before CULPEPPER, GUIDRY and LA-BORDE, JJ.
   GUIDRY, Judge.

The State of Louisiana, through the Department of Public Safety, hereafter Department, appeals from a judgment granting plaintiff a restricted driver’s license under the provisions of LSA-R.S. 32:415.1.

On December 18, 1981, plaintiff petitioned the trial court for a restricted driver’s license alleging that his license was suspended by order of the Seventh Judicial District Court in August, 1980 and that such revocation of his driving privileges will prevent him from earning a livelihood. The Department responded by the filing of an answer and an exception of no cause of action. In its answer the Department alleged that since November 9, 1979, plaintiff’s driving privileges were suspended for one year periods on eight separate occasions. As a basis for its exception of no cause of action the Department urged that plaintiff’s petition is deficient, in that, same fails to state that the suspension of plaintiff’s driving privileges in August, 1980, was a first suspension.

The trial court rendered judgment on January 7, 1982, granting plaintiff a restricted driver’s license. The Department appealed. We reverse.

The record reflects that plaintiff’s driving privileges were originally suspended for one year in September of 1979 because of three convictions of reckless operation of a motor vehicle within a one year period. Subsequent to that initial suspension, plaintiff was twice convicted for driving while intoxicated and was also convicted on multiple charges of driving under revocation. On the occasion of each of the aforesaid convictions, plaintiff’s driving privileges were suspended for an additional year. In light of these uncontroverted facts, the trial court clearly erred in allowing plaintiff a restricted driver’s license under the provisions of LSA-R.S. 32:415.1.

As we stated in Crooks v. Department of Public Safety, 401 So.2d 638 (La.App. 3rd Cir. 1981):

"The department correctly argues that plaintiff’s failure to allege that this is his first suspension is fatal to his claim. Sib-ley v. Louisiana Department of Public Safety, 385 So.2d 505 (La.App. 1st Cir. 1980). A restricted license for economic hardship can only be issued where the applicant’s driver’s license has been suspended, revoked, or cancelled ‘for the first time only’ under LSA-R.S. 32:414 B, C, D, E and LSA-R.S. 32:415. LSA-R.S. 32:415.1 A(l); Fusilier v. Department of Public Safety, 389 So.2d 803 (La.App. 3rd Cir. 1980); Johnson v. State, Department of Public Safety, 390 So.2d 925 (La.App. 2nd Cir. 1980); Sibley v. Louisiana Department of Public Safety, supra.”

For these reasons the judgment of the trial court is reversed and judgment is rendered in favor of the Department, dismissing plaintiff’s suit. Plaintiff-appellee is cast for all costs at the trial level and on appeal.

REVERSED AND RENDERED.

      . Presumably, the trial court referred the exception of no cause of action to the merits, although the judgment does not specifically overrule the Department’s exception.


text:
    Alton “Tan” ROMERO, Plaintiff and Appellant, v. ABBEVILLE BROADCASTING SERVICE, INC., Defendant and Appellee.
    No. 82-116.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1982.

      Thompson, Sellers & Bundick, Dennis Bundick, Abbeville, for plaintiff-appellant.
    Broussard, Broussard & Moresi, Marcus A. Broussard, Jr., Abbeville, for defendant-appellee.
    Before CULPEPPER, GUIDRY and LA-BORDE, JJ.
   CULPEPPER, Judge.

This is a defamation suit. Plaintiff is Alton “Tan” Romero, a deputy sheriff of Vermilion Parish. Defendant, Abbeville Broadcasting Service, Inc., is the owner of a radio station. The trial court held the plaintiff was a public figure and/or public official, and therefore the defendant must have been guilty of “actual malice.” The court then found as a fact that no actual malice by the radio station was proven. From a judgment dismissing his suit, plaintiff appealed.

The evidence shows that on December 9, 1979 and December 10, 1979, radio station KROF in Abbeville, Louisiana, owned by Abbeville Broadcasting Service, Inc., broadcast statements in its news reports that the petitioner had been arrested, handcuffed and taken to jail by FBI agents on charges of vote buying arising out of the December 8, 1979 election for sheriff of Vermilion Parish. Herschel Reaux was in a run-off against the incumbent sheriff, Euda Del-eambre. The plaintiff was the deputy sheriff and jailer for Vermilion Parish and was an active supporter of the incumbent. It was a hotly contested and close election in which accusations were made by both sides.

The trial court found as a fact that there were broadcasts concerning the plaintiffs’ arrest by FBI agents on both Sunday, December 9, 1979, the day after the election, and the following Monday, December 10, 1979.

The defendant broadcasting company introduced into evidence what it considered to be an exact transcript of the broadcast in question, including an interview by Dave Milner, the news director for channel KROF, with Herschel Reaux, the defeated candidate, as follows:

By Mr. Milner:
“Voting irregularities have been charged in Saturday’s Sheriff’s election by candidate Herschel Reaux, who lost to Sheriff Euda Delcambre by a close margin. Reaux says his people observed the voting irregularities and asked state and parish officials for help, and received none. Did you have any of your people, ah, you know, kind of observing at various precincts around the parish?”
By Mr. Reaux:
“Oh yea. Yea, we had some all over.” By Mr. Milner:
“And this is how you found out about it, or ...”
By Mr. Reaux:
“Well, you could see them, you know. We tried to get the FBI out here, and we, we called the Attorney General, and they gave us all the run around and everything. When the Governor and the District Attorney and the Representative
and the Senator and everybody else is against you, it’s hell to get anything done, you know.”
By Mr. Milner”
“Reaux says one of Sheriff Delcambre’s Deputies, Alton “Tan” Romero, has been picked up by the FBI for alleged vote buying.”
By Mr. Reaux:
“The FBI did pick up Tan Romero and handcuffed him and brought him to jail, and then they bonded him out.”
By Mr. Milner:
“Reaux says he will contest the election due to voting irregularities throughout the parish in the Sheriff’s race.”

Actually, plaintiff had not been arrested by the FBI or any other authority for vote buying or any other offense. Thus, the broadcast statement was false in this respect.

Witnesses for the plaintiff did not remember whether or not the allegations that the plaintiff had been arrested for voting irregularities by FBI agents were made directly by the news director or by Reaux in the taped interview. We find the content of the broadcast was essentially as quoted above.

The plaintiff had been a deputy sheriff in Vermilion Parish for many years. He was actively involved in supporting the incumbent sheriff in the election. He testified he not only gave financial support to the campaign but also conducted a barbecue on the day of the election in order to encourage donations and to feed both the haulers and the voters whom they hauled to the polls. The court found as a fact that the sheriff’s race was hotly contested and that the plaintiff actively engaged in this event of high public concern. Additionally, the trial court noted that the plaintiff had run for public office on three prior occasions including unsuccessful candidacies for state representative, sheriff, and police chief of Kaplan. Based on his active engagements in these events of public concern, as well as his position as deputy sheriff, the trial court held that the plaintiff was either a public official or a public figure for purposes of fixing the burden of proof in this case. We agree.

In New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), the U.S. Supreme Court held that in cases of defamation involving a public official actual malice or reckless disregard for the truth must be proven by the plaintiff. In Curtis Publishing Company v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967), the Supreme Court extended this extra burden to those cases involving public figures, which they define as “non-public persons who are nevertheless intimately involved in the resolution of important public questions or, by reason of their fame, shaped events and areas of concern to society at large.” In Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), the Supreme Court discusses who is a public figure. The court states:

“That designation (public figure) may rest on either of two alternative bases. In some instances an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts. More commonly, an individual voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues. In either case such persons assume special prominence in the resolution of public questions.”

The court goes on to note that in order to determine whether or not an individual is a public figure, one must look to “the nature and extent of an individual’s participation in the particular controversy giving rise to the defamation.”

In the instant case the plaintiff, Alton “Tan” Romero, voluntarily injected himself into the public controversy of a hotly contested election, and he assumed a special prominence in the resolution of this public issue. Additionally, the defamation alleged arose out of his participation in the election controversy.

The Louisiana Supreme Court in Thompson v. St. Amant, 196 So.2d 255, 250 La. 405 (1967) held that a deputy sheriff is a representative of the sheriff in his official capacity and is a “public officer” or public official whose authority and duty is regulated by law and so far as the public is concerned the acts of the deputy are acts of the sheriff himself. The Thompson case involved a set of facts similar to the case at bar. The sheriff of East Baton Rouge Parish filed suit against Phil St. Amant, a candidate for the office of United States Senator, who appeared on a television program in Baton Rouge and delivered a political campaign address which alleged that illegal contributions had been made to his opponent by local unions through the plaintiff deputy sheriff, who himself was not a candidate. The Supreme Court held that the deputy sheriff was a state officer whose position was created by the legislature and was a public official. The court found that the deputy sheriff had “substantial responsibilities for or control over the context of governmental affairs.” Therefore, the Supreme Court in the Thompson case applied the New York Times rule that actual malice must be proved.

We conclude plaintiff was a public officer and/or a public figure for purposes of fixing the burden of proof. Therefore, plaintiff’s burden was to prove defendant was guilty of actual malice or reckless disregard of the truth.

The trial court found as a fact that the publication was not made with reckless disregard of the truth nor with actual malice. We agree. Plaintiff’s principal argument is that the broadcasting company failed to thoroughly investigate Reaux’s accusations. The Supreme Court in Gertz v. Robert Welsh, Inc., cited above, 94 S.Ct. at page 3003 stated:

“Mere proof of the failure to investigate, without more, cannot establish reckless disregard for the truth. Rather, the publisher must act with a high degree of awareness of probable falsity.”

The Supreme Court in Gertz relies on the holding of St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262 in which the court upheld the Louisiana Supreme Court.

An additional factor considered is the defamatory statements themselves were not made by the broadcasting company, but by the opposing candidate. The news broadcaster did not state as a fact that Romero had been arrested. Instead, the news broadcast was that allegations had been made by Herschel Reaux that the plaintiff had been arrested. Indeed, the news broadcast contained the actual voice of Reaux himself making these allegations. The news broadcast was not an independent report of the episode as fact but was a report of an accusation the opposing party had made.

The Supreme Court case of Time, Inc. v. Pape, 401 U.S. 279, 91 S.Ct. 633, 28 L.Ed.2d 45 (1971) involved a similar factor. In that case, Time Magazine quoted what the Civil Rights Commission report had stated about police brutality and the Commission’s specific allegations against the chief of detectives. The magazine failed to use the word “alleged” or “allegations.” The plaintiff argued that because of this failure to use these words the magazine endorsed what the Civil Rights Commission was quoted as reporting. After a long discussion about the context of the article, the Supreme Court held that failure to use the word “alleged” was not sufficient to create a jury issue of whether or not malice was present. The Supreme Court upheld the lower court’s dismissal of the plaintiff’s case.

At least one Federal Court has held the broadcasting company or publisher cannot be held liable, absent a showing of actual knowledge of the falsity of statements, when publishing or broadcasting newsworthy statements of a third party, provided the reportage is fair and neutral. Edwards v. National Audubon Society, 556 F.2d 113 (2d Cir.1977), certiorari refused by the U.S. Supreme Court. This so-called “neutral reportage” rule has been rejected by other courts. We find it unnecessary to apply the rule here, because, for the reasons stated above, the defendant did not recklessly disregard the truth.

For the reasons assigned, the judgment appealed is affirmed. All costs of this appeal are assessed against the plaintiff-appellant.

AFFIRMED.


author: FORET, Judge.

text:
    Frank MELANCON, Plaintiff-Appellant, v. CONTINENTAL OIL COMPANY, et al., Defendants-Appellees.
    No. 82-120.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1982.

      DeJean, DeJean & DeJean, Robert F. De-Jean, Sr., Opelousas, for plaintiff-appellant.
    Jeansonne, Gibbens, Blackwell & Briney Patrick J. Briney, Lafayette, Guglielmo & Lopez, Peter F. Caviness, Opelousas, for defendants-appellees.
    Before FORET, CUTRER and STOKER, JJ.
   FORET, Judge.

Frank Melancon (Plaintiff) appeals from a judgment of the trial court, sustaining defendants’ peremptory exceptions of prescription. We affirm.

Named defendants are George Gennuso Oil Company, Inc. (Gennuso) and Continental Oil Company (CONOCO).

FACTS

Plaintiff filed this product liability suit on March 21, 1980, alleging that transmission fluid, sold to him by Gennuso and manufactured by CONOCO, had damaged farm equipment owned by him. Plaintiff' sought to recover damages for sums expended by him in repairing his equipment, and for damages sustained to crops which he was unable to properly cultivate while his equipment was being repaired. Defendants denied any liability to plaintiff for the harm he suffered and filed a peremptory exception of prescription.

PRESCRIPTION

Plaintiff argues that the trial court committed manifest error in sustaining defendants’ peremptory exceptions of prescription. In essence, he argues that he did not become aware of the defective nature of the transmission fluid until April of 1979, and that he instituted this action within one year from that date.

The evidence shows that plaintiff purchased a 55-gallon drum of CONOCO’s Power-Tran II from Gennuso in May of 1978. He then changed the fluid in the transmissions and hydraulic systems of four of his tractors using the fluid he had recently purchased. Plaintiff immediately began to experience problems with his tractors. The differentials froze and the hydraulic systems failed to function in the proper manner. Plaintiff had to place his tractors in the repair shop for approximately one month and was unable to properly cultivate his crops during this time. Plaintiff began to suspect that there was something wrong with the fluid used in his tractors, when the fourth one broke down in late July of 1978.

It was shortly after his fourth tractor broke down that plaintiff contacted Gennu-so and asked him to send CONOCO’s field representative to take a sample of the fluid he had used for analysis. Emile LeBlanc, CONOCO’s field representative, went to the shop where plaintiff’s tractors were being repaired and took a sample of fluid, which had allegedly been drained from one of plaintiff’s tractors. LeBlanc immediately noticed that the fluid’s color was abnormal, and a spot check performed by him confirmed the presence of moisture in the fluid. All of this was done with plaintiff present. The sample was then sent to CO-NOCO’s laboratory for further testing. Meanwhile, plaintiff also sent a sample of the fluid to an independent laboratory for testing.

Plaintiff admitted that he either received the CONOCO report regarding the testing of the fluid sample, or was informed of its contents, in September of 1978. That report states:

“ALL TESTS INDICATE THIS CONO-CO POWER-TRAN II FLUID HAS BEEN MIXED WITH A LIGHTER OIL OF A DIFFERENT TYPE, POSSIBLY NON-ADDITIVE. INFRARED, VISCOSITY, & ADDITIVE CONTENT ALL SHOW THE PRESENCE OF THIS LIGHTER OIL. WEAR METALS ARE ONLY MODERATE AND DIRT IS LOW. HOWEVER, 0.8 PERCENT WATER WAS FOUND. THIS SAMPLE DEFINITELY DID NOT FOAM, EITHER UNDER ASTM TEST CONDITIONS OR AT INCREASED TEMPERATURES.”

The cover letter accompanying the report stated:

“Since CONOCO Power-Tran II fluid was contaminated by a mixture, mechanical problems can be expected.”

The report from the independent testing laboratory contained essentially the same information as the CONOCO report. It is apparent that plaintiff knew that the fluid he had purchased from Gennuso in May of 1978 was defective, when he received these two reports in late 1978.

The crucial issues for our determination are: when did prescription begin to run against plaintiffs product liability claim, and whether his claim has prescribed.

Plaintiff bases his claim against defendants on breach of warranty and negligence.

Actions based on a breach of warranty against defects are to be brought in redhibition instead of as a breach of contract. Unlike damages for other contractual breaches, damages caused by a breach of the warranty in a contract of sale are regarded as founded upon redhibition and subject instead to the prescription applicable to redhibitory actions. See Molbert Brothers Poultry & Egg Company v. Montgomery, 261 So.2d 311 (La.App. 3 Cir.1972), writ denied, 262 La. 306, 263 So.2d 46 (1972), and authorities cited therein.

Under the law of sales, the prescription period for breach of warranty is one year from the date of the sale or from the buyer’s discovery of the defect if the vendor knew or is chargeable with the knowledge of the defect. LSA-C.C. Articles 2534, 2546; Thompson v. Leefe, 399 So.2d 1302 (La.App. 4 Cir.1981); Northwest Insurance Co. v. Pulmosan Safety Equipment Corp., 321 So.2d 791 (La.App. 4 Cir.1975).

There is no evidence whatsoever to show that Gennuso (the vendor of the fluid) had any knowledge of any defect existing in the fluid. Thus, the prescriptive period applicable to plaintiff’s claim against Gen-nuso for breach of warranty began to run from the date of the sale in May of 1978. Plaintiff failed to institute this action until approximately two years had elapsed from the date of sale and his cause of action against Gennuso for breach of warranty has prescribed.

A somewhat different situation obtains with respect to plaintiff’s claim against CONOCO for breach of warranty. CONOCO, as manufacturer of the fluid, was presumed to know of any defect in that substance. See Weber v. Fidelity & Casualty Ins. Co. of New York, 259 La. 599, 250 So.2d 754 (1971); Blalock v. American Employers Insurance Co., 345 So.2d 166 (La. App. 2 Cir.1977), writ denied, 346 So.2d 221 (La.1977).

Rey v. Cuccia, 298 So.2d 840 (La.1974), held, on page 845, that:

“The consumer’s action is enforceable against the manufacturer at the same time and at least within the same year following the sale to the consumer, Article 2534, as it is enforceable against the seller. The manufacturer is presumed to know of the defect in the thing made by him. Radalec, Incorporated v. Automatic Firing Corp., 228 La. 116, 81 So.2d 830 (1955); Tuminello v. Mawby, 220 La. 733, 57 So.2d 666 (1952); George v. Shreveport Cotton Oil Co., 114 La. 498, 38 So. 432 (1905). The one-year limitation on redhi-bitory actions does not apply where the seller (manufacturer) had knowledge of the defect but failed to declare it at the time of the sale. Article 2534. In such instance, the consumer may institute the action to recover for the redhibitory defect within the year following his discovery of it. Article 2546.”

Since CONOCO is presumed to know of any defects existing in the products it manufactures, the one-year prescriptive period applicable to plaintiff’s claim against it for breach of warranty did not begin to run until he discovered the defect in the fluid. See Blalock v. American Employers Insurance Co., supra.

Whatever is notice enough to excite attention and put the owner on his guard and call for inquiry is tantamount to knowledge or notice of everything to which inquiry may lead and such information or knowledge as ought to reasonably put the owner on inquiry is sufficient to start the running of prescription. Cartwright v. Chrysler Corp., 255 La. 597, 232 So.2d 285 (1970).

We find that plaintiff had sufficient knowledge or notice to begin the running of prescription in September or October of 1978, when he received the reports concerning the testing of the fluid which showed it to be defective. Plaintiff admitted a number of times in his testimony that he was suspicious that it was the fluid causing his problems as early as May or June of 1978, when his tractors broke down shortly after the fluid had been placed in them. His sending of a sample of the fluid to the independent testing laboratory clearly indicates that he had enough notice to excite his attention and put him on his guard as to the fact that the fluid was defective. Plaintiff waited over a year and a-half, after having notice that the fluid was defective, before filing this action. Thus, his action against CONOCO for breach of warranty has prescribed.

As to plaintiff's cause of action based on negligence, the applicable prescriptive period is one year from the date on which the damages were sustained. See LSA-C.C. Article 3537; Cartwright v. Chrysler Corp., supra.

In the sale of any product, the implicit or explicit representation or declaration is made that the product possesses the requisite fitness or wholesomeness for the purpose it is marketed. An action for damages, whether arising from redhibitory vices (LSA-C.C. Article 2534, 2546), or arising from an offense or quasi-offense (LSA-C.C. Article 3536), must be brought in one year. Even in cases where the seller (and the manufacturer, by presumption) had knowledge of the redhibitory defect but failed to declare it, the consumer must bring his action within one year following his discovery of the defect. Cotton States Chemical Co., Inc. v. Larrison Enterprises, Inc., 342 So.2d 1212 (La.App. 2 Cir.1977); Rey v. Cucci, supra.

The evidence shows that the damage caused by the fluid was sustained by plaintiff’s tractors in August of 1978, at the latest, and that he discovered the defect in the fluid at that time. Thus, his cause of action against defendants based on negligence, instituted some one and a-half years after this damage had been sustained, has prescribed.

For the above and foregoing reasons, the judgment of the trial court sustaining defendants’ peremptory exception of prescription is affirmed.

All costs of this appeal are assessed against plaintiff-appellant.

AFFIRMED.


text:
    Mark B. HOYT, Plaintiff-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellant and Natchitoches Parish Police Jury et al., Defendants-Appellees.
    No. 82-132.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1982.
    Writ Denied Dec. 20, 1982.

      Thomas, Dunahoe & Gregory, Gerard F. Thomas, Jr., Natchitoches, for plaintiff-appellant-appellee.
    Gist, Methvin, Hughes & Musterman, DeWitt T. Methvin, Jr., Alexandria, for defendant-appellee-appellant.
    Brittain & Williams, Joseph Payne Williams, Natchitoches, for defendants-appel-lees.
    Before CULPEPPER, GUIDRY and LA-BORDE, JJ.
   GUIDRY, Judge.

This suit arises from personal injuries sustained by the plaintiff, Mark B. Hoyt, in an accident which occurred on November 11, 1979 on a privately owned dirt road in Natchitoches Parish, Louisiana. Hoyt was a passenger in a dune buggy owned and operated by David Johnson when it collided head-on with a vehicle driven by Charles R. Williams.

The plaintiff Hoyt filed suit on April 2, 1980, against David Johnson and his insurer, Western Casualty Insurance Company (hereafter Western Casualty), against Charles R. Williams and his insurer, State Farm Mutual Automobile Insurance Company (hereafter State Farm), and against State Farm as the uninsured motorist carrier for the plaintiff. On April 22, 1980, answer was filed on behalf of Charles Williams and State Farm as his insurer. Subsequently, Hoyt settled his claim against Williams and State Farm in its capacity as Williams’ liability insurer, resulting in a judgment of dismissal as to those parties. In connection with this agreement, State Farm paid to the plaintiff $10,000.00, the limit of its liability on the Williams’ vehicle. The judgment was signed on May 7, 1980, reserving the right of the plaintiff to proceed against all other defendants, including State Farm in its capacity as uninsured motorist carrier for the plaintiff.

The defendants, David Johnson and his insurer, Western Casualty, answered plaintiff’s petition on May 28, 1980. The plaintiff reached a similar compromise with these defendants, whereby Western Casualty paid to the plaintiff the limit of its bodily injury liability, $10,000.00, plus $2,000.00 in medical payments coverage. A judgment of dismissal releasing Johnson and Western Casualty was signed on July 16, 1980, reserving to the plaintiff the right to proceed against State Farm in its capacity as uninsured motorist carrier and all others not released.

Following the release of these defendants, the plaintiff Hoyt learned that, at the time of the accident, Charles R. Williams was acting in the course and scope of his employment with the Natchitoches Parish Police Jury. The plaintiff filed an amended and supplemental petition on October 30, 1980 adding the Police Jury and its insurer, Reliance Insurance Company (hereafter Reliance) as parties defendant.

The merits of the case were tried to a jury. The issues presented to the jury were (1) whether either or both of the drivers were negligent; (2) whether such negligence caused the plaintiffs injuries; and, (3) the amount of damages to which the plaintiff was entitled. The jury returned a special verdict, finding (1) that Charles Williams was not negligent; (2) that David Johnson was negligent and such negligence resulted in the injuries to the plaintiff; and, (3) that the plaintiff was entitled to special damages in the amount of $10,000.00 and general damages in the amount of $90,-000.00. Judgment was rendered on November 25, 1981, in accordance with the jury verdict, in favor of the plaintiff Hoyt against the defendant, State Farm, in the amount of $100,000.00, subject to a credit in favor of the defendant, State Farm, in the amount of $10,000.00, being the amount received by Hoyt from Johnson and Western Casualty. Judgment was also rendered in favor of the defendants, Natchitoches Parish Police Jury and Reliance, dismissing the claims of the plaintiff against them.

The plaintiff Hoyt has appealed, citing as error the failure of the trial court to find Charles Williams negligent and the insufficiency of the damages awarded. Defendant-appellant, State Farm, joins Hoyt in asserting error of the trial court in failing to find Charles Williams negligent. Defendants-appellees, Natchitoches Parish Police Jury and Reliance argue that there was no abuse of discretion on the part of the jury in finding Williams free of negligence. However, should it be found that the trial court erred, they argue, in the alternative, that plaintiff-appellant’s claims against them should be dismissed as a result of the release and judgment of dismissal in favor of Charles Williams and State Farm, executed without an express reservation of rights against the Police Jury or Reliance. They further argue that absent a dismissal of the claim against them they are at least entitled to a reduction of damages of one-half (Vá), as against them, as a result of the release of the tortfeasor, David Johnson.

For the reasons which follow, we affirm the jury’s determination that Charles Williams was free from negligence-on the occasion in question. Our affirmation on this issue makes consideration of the alternative issues raised by appellees unnecessary.

On November 11, 1979, during the late morning hours, Mark B. Hoyt was a passenger in a dune buggy being driven by David Johnson. The two men were returning from a hunting trip in a wooded area near Grand Ecore in Natchitoches Parish. As the dune buggy reached the crest of an incline on a privately owned dirt road, it collided head-on with a 1970 Ford Maverick being driven by Charles R. Williams. Each driver testified that there was no way to avoid the collision when he encountered the approaching vehicle at the crest of the hill. It is conceded by all parties that at the time of the accident, Charles Williams was acting in the course and scope of his employment with the Natchitoches Parish Police Jury.

Eighteen days after the accident, on November 29, 1979, Charles Williams gave a statement concerning the accident to Jack Rockhold, a claims agent for State Farm. During the course of the interview, Williams stated that the road on which the accident occurred was a one-lane road, and that vehicles travelling in different directions on the road would have to use the same lane.

At the trial, David Johnson testified that the road was a one lane road; that there were only two “ruts” in the road marking the path taken by vehicles using the road; and, that the road was not wide enough for two vehicles to pass without colliding. He testified that he was travelling on the “beaten path” in the center of the road at the time of the collision, and that the Williams vehicle was occupying the same set of tracks in the center of the road.

Charles Williams testified at the trial that, although the road was, for the most part, a one-lane woods road, the section of the road at and near the crest of the hill was wide enough for two cars to pass without colliding. He testified further that he was not in the worn area, i.e., the “ruts” in the center of the road, and that he was travelling as far to the right as was possible. When the statement Williams had previously given to Rockhold was called to his attention, Williams testified that the statement was the truth as he understood it at the time, but after viewing photographs of the scene of the collision, he became convinced that he was travelling on the right side of the road rather than in the center.

Also offered in evidence were the photographs of the scene of the collision and of the road on both sides of the crest of the hill on which the accident occurred. Mark B. Hoyt was unable to testify as to the width of the road at the point of the collision or as to the paths taken by the vehicles because at the time of the accident he had his cap pulled down over his eyes in order to shield himself from the cold wind as he rode in the open dune buggy.

The issue we must resolve is whether or not the finding of the jury that Charles Williams was not negligent is clearly erroneous.

The jury was instructed that when an innocent third party is injured as a result of a collision between two drivers, each of the drivers is deemed guilty of negligence per se and the burden of proof falls on each to exculpate himself from negligence proximately causing the injury to the third party. Poche v. Frazier, 232 So.2d 851 (La. App. 4th Cir.1970).

The application of the Poche rule was clarified by our brethren of the First Circuit in Michel v. State Farm Mutual Automobile Insurance Co., 314 So.2d 535 (La. App. 1st Cir.1975) where it was stated:

“The rule does not exempt a plaintiff from the ultimate requirement that he prove his case. It merely provides the plaintiff with an early advantage in the trial of the case. This advantage, however, may be obtained only after the plaintiff has first proved his own innocence and then that the circumstances compel a finding that one or the other of the defendants was at fault. ' With these elements in, the plaintiff has made a pri-ma facie case. The burden is then shifted to the defendants to exculpate themselves. "

The appellants contend that the burden placed upon Charles Williams to prove himself free from negligence has not been met, i.e., that the presumption of negligence on his part has not been rebutted.

While we entertain some doubt as to the correctness of the Poche rule, the jury, after being instructed as to the applicability of this rule, nevertheless found that the defendants-appellees carried their burden of exculpating Charles Williams of negligence. Presumably, the jury was impressed with the testimony of Charles Williams and the photographic evidence presented in support thereof.

At trial, Williams testified that he was driving as far to the right hand side of the road as was possible, and that the road was wide enough for two cars to pass without colliding. Williams’ testimony as to the width of the section of road at and near the crest of the hill is corroborated by the photographic evidence. If the jury accepted this testimony, as we assume they did, then a finding that Williams was not negligent would be supported by ample evidence and would not be erroneous unless the jury was clearly wrong in accepting Williams’ testimony as true. In short, the question is one of credibility.

Appellants argue that the statement given by Williams to the State Farm agent shortly after the accident is entitled to greater weight than his contrary testimony at trial. While the trial court must consider such a prior statement in determining credibility, we are unable to agree that the jury was clearly wrong in accepting Williams’ testimony at trial. In his statement to the State Farm agent, Williams stated that the road was a one-lane road, and that vehicles travelling in different directions would have to use the same lane. At trial, he testified that the road was a one-lane road, but that at and near the crest of the hill it became wide enough for two cars to pass. He never changed his description of the road as a one-lane road. At trial, he merely qualified it by saying that at the crest of the hill it becomes wide enough for two cars to pass. We cannot say that the statement given to the agent and his testimony at trial are clearly irreconcilable.

The trier of fact has wide discretion in making factual determinations. When a factual determination is made on the basis of the jury’s evaluation of the credibility of witnesses, that finding should not be disturbed absent a clear showing of manifest error. Canter v. Koehring Company, 283 So.2d 716 (La.1973); Arceneaux v. Domingue, writ granted, 359 So.2d 1303 (La.1978), 365 So.2d 1330 (La.1978) on remand, 370 So.2d 1262 (La.App. 3rd Cir.1979); Bertrand v. Aetna Casualty & Surety Company, 306 So.2d 343 (La.App. 3rd Cir.1975). Our careful review of the record reveals no clear showing of error in the jury’s determination.

Because we hold that the jury finding that Charles Williams was not negligent is not clear error, it is unnecessary for us to consider the alternative arguments raised by the appellees.

QUANTUM

The jury returned a verdict in favor of the plaintiff against State Farm in the amount of $100,000.00, i.e., $10,000.00 in special damages and $90,000.00 in general damages. The $90,000.00 general damage award is not itemized. The judgment made the award subject to a credit in the amount of $10,000.00, that being the amount received by the plaintiff from Western Casualty for its account and for the account of its insured, David Johnson. Thus, State Farm was cast in judgment for $90,000.00. Insofar as State Farm’s policy limits of $100,000.00 have not been exhausted, we consider the plaintiff’s claim that the damages awarded were insufficient to compensate the plaintiff for his injuries.

The plaintiff Hoyt’s injuries consisted of a laceration on the forehead, laceration of the tongue, fracture of the index finger and the third finger on the right hand, fracture of the left forearm, a cerebral concussion, a fracture of two ribs, and various bruises and contusions. The permanent éffect of the injuries to Hoyt were pain and impairment of the right hand, and in particular the right index finger, a tingling and numbness of his scalp, and pain and impairment of the left elbow. State Farm’s expert, Dr. C.W. Lowrey, assessed the disability in the right hand at 20% and that in the left elbow at. 5%. Experts in the field of drafting assessed Hoyt’s impairment of work capacity at 35%.

At the time of the accident, Mark Hoyt was employed by a Natchitoches architect as an architectural draftsman. Due to the injuries to his right hand he was unable to continue working in that phase of drafting due to the complex and detailed drawing required. However, he was able to secure employment with a civil engineer in Natchi-toches as an engineering draftsman. The plaintiff contends that architectural drafting is more financially rewarding than engineering drafting, and his principal argument with regard to quantum is that the jury failed to adequately compensate him for loss of earning capacity. - While it may be true that Hoyt’s earning capacity as an architectural draftsman is impaired, it was also established that he was earning more as an engineering draftsman after the accident than he was as an architectural draftsman before the accident. In addition, plaintiff’s own witness, Dr. Richard Galloway, an expert in vocational rehabilitation, testified that Hoyt had the capacity to retrain in a number of different areas in which his earning capability would be equal to or greater than it was in the field of architectural drafting.

The jury has wide discretion in determining the appropriate amount of damages. Before a Court of Appeal can disturb a quantum award, the record must reveal that the jury abused its discretion, and then the award is to be amended by lowering or raising it to the highest or lowest point which is reasonably within the discretion of the court. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976); Green v. Rollins, 406 So.2d 318 (La.App. 3rd Cir.1981). Our review of the record convinces us that the jury did not manifestly abuse its discretion in awarding the plaintiff $90,000.00 in general damages.

Accordingly, for the reasons assigned, the judgment appealed from is affirmed. All costs are assessed against plaintiff-appellant.

AFFIRMED.