author: EDWARDS, Judge.

text:
    McGOWAN-RIGBY SUPPLY, INC. v. LATIL & SON, INC. and D. L. Latil.
    No. 13916.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 26, 1981.
    George R. Covert, Baton Rouge, counsel for plaintiff-appellant, McGowan-Rigby Supply, Inc:
    James A. Wood, Baton Rouge, counsel for defendants-appellees, Latil & Son, Inc. and D. L. Latil.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

Plaintiff, McGowan-Rigby, Inc., sued on a note and named Latil & Son, Inc., and D. L. Latil defendants. Plaintiff sought $14,-982.62, eight percent interest, twenty percent attorney fees and all costs.

Judgment was signed in plaintiff’s favor and against Latil & Son, Inc., granting plaintiff relief as prayed for. Plaintiff’s demands against D. L. Latil, individually, were dismissed. From that judgment, plaintiff appeals. We affirm.

The note at issue was made to cover a corporate debt owed by Latil & Son to plaintiff. It was both signed and endorsed

“Latil & Son

D. L. Latil”

In written reasons for judgment, the trial court stated that “when Mr. Rigby (president of McGowan-Rigby) received the note he knew D. L. Latil was signing as agent for Latil & Son.” For that reason Latil was not held personally liable.

LSA-R.S. 10:3^403 provides

“(1) A signature may be made by an agent or other representative, and his authority to make it may be established as in other cases of representation. No particular form of appointment is necessary to establish such authority.
(2) An authorized representative who signs his own name to an instrument
(a) is personally obligated if the instrument neither names the person represented nor shows that the representative signed in a representative capacity;
(b) except as otherwise established between the immediate parties, is personally obligated if the instrument names the person represented but does not show that the representative signed in a representative capacity, or if the instrument does not name the person represented but does show that the representative signed in a representative capacity.
(3) Except as otherwise established the name of an organization preceded or followed by the name and office of an authorized individual is a signature made in a representative capacity.” (emphasis supplied)

Testimony of plaintiff’s own agent, Charles L. Rigby, clearly shows that when D. L. Latil signed the note, it was as agent for Latil & Son, Inc., not as an individual. Rigby testified that, contrary to Rigby’s wishes, Latil insisted on signing the note Latil & Son. Rigby had not wanted the name Latil & Son on the note because he wished for D. L. Latil to be personally liable. Rigby’s admission that “That’s the only way he would sign it” proves that Latil never intended to be individually liable, alleged verbal guarantees to the contrary notwithstanding.

Despite failing to show his representative capacity, under LSA-R.S. 10:3 — 403(2)(b) D. L. Latil is not personally liable on the note. The trial court judgment was correct and will be affirmed. All costs of this appeal are to be paid by McGowan-Rigby Supply, Inc.

AFFIRMED.


source: Caselaw Access Project

license: Public Domain

text:
    Thomas R. LeJEUNE and Deborah B. LeJeune v. Mitchell BRASWELL, Helmerich and Payne International Drilling Company, Fireman’s Fund Insurance Company, Harbor Insurance Company, and the State of Louisiana, Through the Department of Transportation and Development.
    No. 13963.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 26, 1981.

      Owen M. Goudelocke, Mengis, Durant, Carpenter & Goudelocke, Baton Rouge, for defendants-appellants.
    Donald R. Smith, Ellison & Smith, Baton Rouge, for plaintiffs-appellees.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

On the morning of June 1, 1976, Deborah B. LeJeune was driving south on Louisiana Highway 415 in West Baton Rouge Parish. At the same time, Mitchell Braswell was driving a pickup truck north on Highway 415. Braswell reached a point where the road abruptly narrowed from four to two lanes. For unexplained reasons, Braswell failed to remain on the roadway’s paved portion. One or more tires ran onto the gravel shoulder which was, in places, six to eight inches lower than the paved highway. Braswell attempted to steer his vehicle onto the roadway but lost control and the pickup careened sideways across the highway directly into the path of Mrs. LeJeune’s automobile. As a result of the ensuing collision, Mrs. LeJeune suffered numerous injuries, some painful, some permanent and some disfiguring.

Deborah LeJeune and her husband, Thomas R. LeJeune, brought suit against Mitchell Braswell, Helmerich and Payne International Drilling Company, Braswell’s employer, Fireman’s Fund Insurance Company, Harbor Insurance Company, and the State of Louisiana, through the Department of Transportation and Development. Mr. LeJeune sought $19,053.96 in damages while Mrs. LeJeune prayed for $455,700.

Prior to trial, plaintiffs released all defendants except the state for the consideration of $92,134.35.

Following trial, judgment was signed in plaintiffs’ favor casting the state for $116,-424.06 in damages plus interest and costs including $700 in expert witness fees. Because Mitchell Braswell and the state were found to be joint tortfeasors and because Braswell had already been released, the state’s liability was reduced by fifty percent as mandated by Harvey v. Travelers Insurance Company, 163 So.2d 915 (La.App. 3rd Cir. 1964).

On appeal, the state urges that the trial court erred in holding the Department of Transportation and Development liable.

We find that the trial court did not err. The record contains sufficient evidence to make it crystal clear that the state failed to maintain properly the shoulder of Highway 415. The deep ruts, into which the wheels of Braswell’s truck rode, were a known but uncorrected danger. The state’s failure to maintain a shoulder so as to allow for safe gradual movement from shoulder to road and vice versa must and did result in liability. Sinitiere v. Lavergne, 391 So.2d 821 (La.S.Ct.1980); Rue v. State, Department of Highways, 372 So.2d 1197 (La.1979).

Plaintiffs have answered the appeal. They claim that the trial court erred in finding Braswell and the state to be joint tortfeasors and argue that only the state was liable and that therefore the state should not enjoy the benefit of a fifty percent reduction in damages owed.

Plaintiffs’ argument is untenable. Braswell, knowing of the shoulder’s condition both because of his familiarity with the road and because he realized the right side of his vehicle was off the pavement, was negligent in attempting to ride out of a deep rut at a speed of fifty miles per hour. Sinitiere v. Lavergne, supra. Clearly, Braswell and the state were joint tortfeasors.

For the foregoing reasons, the judgment appealed from is affirmed. All costs, both trial and appellate, are to be paid by the state, through the Department of Transportation and Development.

AFFIRMED.


author: PONDER, Judge.

text:
    Warren HURST v. STATE of Louisiana, DIVISION OF ADMINISTRATION and the Administrator of Louisiana Dept. of Employment Security et al.
    No. 13923.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 26, 1981.
    Bruce E. Simpson, Kentwood, for plaintiff.
    James A. McGraw, Willie D. Maynor, Baton Rouge, for defendant Herbert L. Sum-rail and Office of Employment Security.

      John Koch, James D. Caldwell, Baton Rouge, for defendant — Louisiana Dept, of Corrections.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

Defendant, Louisiana Department of Corrections, appealed from the reversal of the determination by the Louisiana Employment Security Board of Review that plaintiff was not entitled to unemployment benefits.

The issues are the scope of judicial review and whether the cost of transportation existing prior to employment can be a “good cause connected with employment” so as to entitle claimant to unemployment benefits.

We reverse and render.

Plaintiff obtained employment at the Dixon Correctional Institute located approximately forty-five miles from his home. He planned to arrange a car pool to and from work, but was unable to do so. After working two months, plaintiff quit. The denial of plaintiff’s claim for unemployment benefits by the Louisiana Office of Employment Security Appeals Referee was affirmed by the Louisiana Employment Security Board of Review, on the finding that plaintiff was aware of the cost of transportation when he accepted employment. His resignation was therefore without good cause connected with employment. Defendant, Department of Corrections appealed the trial court’s reversal. Defendant, Louisiana Administrator of the Office of Employment Security, joined in plaintiff’s prayer that the decision of the trial court be affirmed.

The Louisiana Department of Corrections argues that the court improperly applied the standard for judicial review found in LSA-R.S. 23:1634. We find no error. The court accepted the findings of fact by the Board of Review as conclusive and based its reversal on a legal conclusion.

The Department of Corrections urges the trial court misapplied the ruling of Bate- man v. Howard Johnson Company, 292 So.2d 228 (La.1974) in which the Supreme Court, interpreting LSA-R.S. 23:1601(1) and LSA-R.S. 23:1601(3)(a) together, held that suitability of employment, including the cost of transportation to and from a job, can be a factor in determining whether one had “good cause connected with the employment” for leaving.

We believe defendant’s claim has merit. The court in Bateman ordered compensation paid a claimant who left her employment after public transportation from her work terminated due to a city-wide curfew. Further refining the holding of Bateman, the Supreme Court in Boudreaux v. Louisiana Board of Review, Department of Employment Security, 374 So.2d 1182 (La.1979) stated “... it is good cause connected with employment for an employee to quit his job when the work becomes unsuitable within the meaning of the statute due to unanticipated working conditions.” The court allowed compensation to a claimant who left employment after being transferred to a post requiring a forty-eight mile round trip.

Here, however, plaintiff was aware of the ninety-two miles round trip when he accepted employment. His failure to form a private car pool, while unfortunate, is not an unanticipated working condition within the meaning of Bateman and Boudreaux.

Because we find the holding in Bateman inapplicable to this case, we find it unnecessary to address appellant's challenge to the legal soundness of that decision.

For the above reasons the judgment of the trial court is reversed. It is now ordered, adjudged and decreed that the decision of the Louisiana Employment Security Board of Review be affirmed.

Appellee is relieved of the costs of this appeal by LSA-R.S. 23:1692.

REVERSED AND RENDERED.

LOTTINGER, J., concurs.

      . LSA-R.S. 23:1634:
      “Within the time specified in R.S. 23:1630, the administrator, or any party to the proceedings before the board of review, may obtain judicial review thereof by filing in the district court of the domicile of the claimant a petition for review of the decision, and in such proceeding any other party to the proceeding before the board of review shall be made a party defendant. The petition for review need not be verified but shall state the grounds upon which such review is sought. The administrator shall be deemed to be a party to any such proceeding. If the administrator is a party defendant, a certified copy of the petition shall be served upon him by leaving with him, or such representative as he may have designated for that purpose, as many copies of the petition as there are defendants. With his answer or petition, the administrator shall certify and file with the court a certified copy of the record of the case, including all documents and papers and a transcript of all testimony taken in the matter, together with the board of review’s findings, conclusions, and decision. Upon the filing of a petition for review by the administrator or upon the service of the petition on him, the administrator shall forthwith send by registered mail to each other party to the proceeding a copy of the petition, and such mailing shall be deemed to be completed service upon all parties. In any proceeding under this Section the findings of the board of review as to the facts, if supported by sufficient evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law. No additional evidence shall be received by the court, but the court may order additional evidence to be taken before the board of review, and the board of review may, after hearing such additional evidence, modify its findings of fact or conclusions, and file such additional or modified findings and conclusions, together with a transcript of the additional record, with the court. Such proceedings shall be heard in a summary manner and shall be given precedence over all other civil cases except cases arising under the workmen’s compensation law of this state. An appeal may be taken from the decision of the district court to the circuit court of appeals in the same manner, but not inconsistent with the provisions of this Chapter, as is provided in civil cases. It shall not be necessary as a condition precedent to judicial review of any decision of the board of review to enter exceptions to the rulings of the board of review, and no bond shall be required as a condition of initiating a proceeding for a judicial review, or entering an appeal from the decision of the court upon such review. Upon the final termination of a judicial proceeding, the board of review shall enter an order in accordance with the mandate of the court.”

      . LSA-R.S. 23:1601(1) and LSA-R.S. 23:1601(3)(a):
      “An individual shall be disqualified for benefits:
      (1) If the administrator finds that he has left his employment without good cause connected with his employment. Such disqualification shall continue until such time as the claimant (a) can demonstrate that he has been paid wages for work subject to the Louisiana Employment Security Law or to the unemployment insurance law of any other state or the United States, equivalent to at least ten times his weekly benefit amount following the week in which the disqualifying act occurred and (b) has not left his last work under disqualifying circumstances.
      * * * * *
      (3) If the administrator finds that he has failed, without good cause, either to apply for available, suitable work when so directed by the administrator or to accept suitable work when offered him, or to return to his customary selfemployment, if any, when so directed by the administrator. Such disqualification shall continue until such time as the claimant (a) can demonstrate that he has been paid wages for work subject to the Louisiana Employment Security Law, or to the unemployment insurance laws of any other state or of the United States, equivalent to at least ten times his weekly benefit amount following the week in which the disqualifying act occurred and (b) has not left his last work under disqualifying circumstances.
      (a) In determining whether or not any work is suitable for an individual, the administrator shall consider the degree of risk involved to his health, safety and morals, his physical fitness and prior training, his experience, his length of unemployment, his prospects for securing local work in his customary occupation, and the distance of the available work from his residence, his highest level of educational attainment as evidenced by a formal degree. In addition, the administrator shall consider the individual’s prior earnings unless employment is offered by a base period employer, in which case the rate of remuneration and the level of skill shall be equal to or greater than the highest amount paid the employee in his former employment with said base period employer; but, in no case shall the employee be required to accept remuneration from any employer at a level below 80 percent of his highest rate of pay in his base period; nor, shall he be required to accept remuneration at less than the employer pays other employees with comparable skills; nor, shall such employee be required to accept compensation at a rate below the scale provided in any employee agreement to which he or his agent is a party.
      * * * He * *
      (a) In determining whether or not any work is suitable for an individual, the administrator shall consider the degree of risk involved to his health, safety and morals, his physical fitness and prior training, his experience and prior earnings, his length of unemployment and prospects for securing local work in his customary occupation, and the distance of the available work from his residence.” (Acts 1978 Nos. 517 § 2 and 538 § 1 both amended and reenacted R.S. 23:1601(3)(a).)


text:
    George V. BREARD et al. v. Aubrey J. HAYNES et al.
    No. 13936.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 26, 1981.
    James J. Zito, Baton Rouge, counsel for plaintiff-appellant, George V. Breard.
    Frederick R. Tulley, Baton Rouge, counsel for plaintiff-appellee, Jack Bottorf, Jr.
    David M. Ellison, Baton Rouge, counsel for defendant-appellee.
    Horace C. Lane, Baton Rouge, counsel for defendant-appellee, State Farm Mut. Auto. Ins. Co.
    Michael D. Hunt, Baton Rouge, counsel for defendant-appellee, Fireman’s Fund Ins. Co.
    Wiley R. Dial, Baton Rouge, counsel for defendant-appellee, Aubrey L. Haynes.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

Plaintiff appealed from a judgment in his favor against Allstate Insurance Company, the uninsured motorist insurance carrier of the car in which plaintiff was a guest passenger, in the amount of $530.00 for personal injuries suffered in two traffic accidents.

The issues are: Plaintiff’s status as an insured, and the validity of the definition of “occupying”.

We affirm.

A ear, owned and driven by George Cook, in which plaintiff was a passenger, was involved in a minor collision. Coverage of this accident is not contested.

An off-duty police trainee arrived at the scene and began to direct traffic. He positioned himself behind his car which was parked four or five feet behind the vehicle which struck the Cook vehicle and approximately seventy feet from the Cook vehicle. Plaintiff and a companion approached the officer trainee and engaged him in conversation. Plaintiff stood a foot or so away from the median near the rear of the officer’s car. The officer trainee warned of the danger. Immediately thereafter, a van driven by one Ewing swerved across the highway and onto the median, striking and seriously injurying plaintiff. The driver of the van was not insured. The Cook vehicle was covered by a $50,000.00 uninsured motorist policy by Allstate. Plaintiff was insured with Fireman’s Fund Insurance Company. He sued both insurance companies. The trial court awarded plaintiff the policy limit of $10,000.00 against Fireman’s Fund Insurance Company for injuries sustained in both accidents. It awarded plaintiff $530.00 against Allstate for injuries sustained in the first accident but denied recovery from Allstate for injuries sustained in the second accident.

The trial court assigned the following oral reasons which we approve and adopt as our own:

“With regards to the second accident when the Ewing van struck the plaintiff, this accident happened from ten to fifteen minutes after the first accident. Testimony was that the plaintiff walked from the Cook vehicle back to the point where Officer Barker was directing traffic; that distance is in the neighborhood of seventy feet, based on the fact that the Cook vehicle was approximately fifty feet from the front of the Haynes vehicle. When we add the length of the Haynes vehicle, four or five feet that was in between the Haynes and the Barker vehicle, add the Barker vehicle and the several feet behind the Barker vehicle where Officer Barker was located, it comes out in the neighborhood of seventy feet.
As I mentioned earlier, the purpose of walking over to where Officer Barker was, according to the plaintiff, was because he thought it was safe at that point, whereas the court finds that the reason they went over to that point was so that they could talk to the officer. The question then becomes whether or not at the time of the second accident, whether or not the plaintiff is covered under the uninsured motorist protection on the Cook vehicle that was issued by Allstate. It’s obvious that he was not physically occupying the Cook vehicle at the time of the second accident.
In determining whether or not the plaintiff is insured under the uninsured motorist provision, the court indicated that he was not the named insured, he was not the spouse of the named insured nor a relative, which, in the court’s opinion, subrogated him to Part B, which is any other person while occupying an insured automobile. The question then becomes whether or not at the time of the second accident plaintiff was occupying the Cook vehicle.
Occupying is defined on Page 5 of the Allstate policy as meaning in or upon or entering into or alighting from. For Allstate to have coverage on the plaintiff with regard to the second accident, it is the court’s opinion that it would have to find that the plaintiff was occupying the Cook vehicle.
The case of Smith versus Travelers Insurance, [260 La. 223,] 255 So. 748, 1971, is a case that involved whether or not a person was occupying a vehicle so that uninsured motorist coverage would be available. There the Supreme Court found as a matter of fact that there was physical contact between the Smith car and the insured car. However, on page 751 of that particular opinion, the court made mention of the fact that other jurisprudence, particularly in Ohio, Illinois, Pennsylvania and South Carolina, have cases whereby a person does not have to be in physical contact with the insured vehicle to still be classified as occupying a vehicle for coverage. However, as noted by the Supreme Court in this decision which authored by judge McCaleb, it’s indicated that if there is not physical contact then there has to be some physical relationship between the person and the vehicle. In making a survey of the particular jurisprudence that I have indicated, those cases had reference to where a person was leaning over the car, putting their hand in a window, an instance where there was no physical contact, but that a person has a physical relationship between himself and the vehicle. At the time of the accident there was no physical contact between the plaintiff and the Cook vehicle. In determining whether or not he could fall within the dictum of the court, inasmuch as they found that there was physical contact in the Smith case, but determining whether or not there was some physical relationship between the plaintiff and the Cook vehicle, the court finds that there was none inasmuch as the Cook vehicle was approximately seventy feet from where the second accident occurred; there was approximately fifteen minutes elapse in time between the time of the first accident and the second accident. The court does not find that the second accident occurred while plaintiff was occupying, and I use that word in the broadest sense, the Cook vehicle. The court feels that Mr. Breard, the plaintiff, had time to extract himself from the Cook vehicle, to get into a safe position, at which time coverage under the Allstate policy, in the court’s opinion, would terminate.
With regard to the argument that while the word ‘occupy’ is to constitute either a physical occupancy and/or a physical relationship between the claimant and a vehicle to constitute occupancy, the court does not feel that under R.S. 22-1406 that the policy definitions of occupying are unconstitutional. I do not think that there is a prohibition whatsoever against an insurer from defining the word insured and the word occupancy.
With regards to the second accident, the court does not find that Allstate has any coverage to the plaintiff.”

We, like the trial court, find that the lapse of fifteen or so minutes, the removal of some seventy feet, the lack of some “physical relationship” between the Cook vehicle and the plaintiff and the exercise of free choice by plaintiff in placing himself in a position of danger lead to the conclusion that plaintiff was not “occupying” the Cook vehicle at the time of the second accident.

Plaintiff urges the ambiguity and the contravention of public policy in the definition. The definition seems quite definitely to rule out coverage here; we find no ambiguity. While the public policy is to extend uninsured motorist coverage so far as is reasonable, nevertheless, we believe that the insurer has the right to require at least a “physical relationship” with the insured vehicle.

The plaintiff also contends that there was but one continuing accident and therefore the injuries sustained in the second collision should be covered as resulting from the first accident.

We decline to extend the uninsured motorist coverage that far since under the terms of the policy plaintiff had lost his status as an insured when he sustained injuries in the second accident.

Plaintiff seems to argue that the coverage under the uninsured motorist provisions should be coextensive with that under the liability provisions. We find no merit in this claim. There are different definitions of “insured.” The requirement of the statute is in regard to the limits rather than in the coverage.

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

AFFIRMED.


text:
    Shelby SAVOIE v. STATE of Louisiana, DEPARTMENT OF CORRECTIONS, L.T.I.-E.B.R.
    No. 13940.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 26, 1981.
    Glenn Hawkins, Baton Rouge, for appellant.
    Annette R. Seng, Staff Atty., Dept, of Justice, Baton Rouge, for appellee.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

Plaintiff appealed from a judgment of the Civil Service Commission affirming his termination.

The issues are: the sufficiency of evidence, particularly the relevance of plaintiff’s acquittal on criminal charges arising from the same incident and alleged discrimination and bias.

We affirm.

Plaintiff was terminated from his position as Correctional Officer II at the Louisiana Technical Institute at Baton Rouge (L.T.I.-B.R.), for violation of rules and regulations of the Department of Corrections in connection with an escape incident.

Plaintiff, assisted by his immediate supervisor and another employee, participated in the apprehension of three escapees, during which two of the escapees were beaten. The following day, upon request, plaintiff filed a written report of the escape and capture but failed to mention the beating. He was criminally charged with Cruelty to a Juvenile, and discharged. After his acquittal in the criminal trial plaintiff sought reinstatement plus full back pay of over $30,000.00. The Civil Service Commission, in upholding plaintiff’s termination, found that the evidence established that plaintiff was involved in the beating in violation of Department of Corrections Regulation 30-3 and Louisiana Technical Institute-Baton Rouge Rule 51 which prohibit the striking of a student except in self defense or to prevent an escape. The Commission further found that plaintiff violated Rule 51 in failing to file a written report.

Plaintiff claims the evidence cannot support his termination as it was insufficient to sustain a criminal conviction for Cruelty to a Juvenile. Plaintiff’s claim is without merit. Although based upon the same incident, the criminal charges against plaintiff were not co-extensive with the charges upon which plaintiff’s termination was based.

The burden of proof is less in a Civil Service hearing than in a criminal proceeding. Although the facts must be “clearly” established, they need not be established “beyond a reasonable doubt.” LSA-R.S. 15:271; Herbert v. Department of Police, 362 So.2d 1190 (La.App. 4th Cir. 1978).

Plaintiff next contends that the Department of Corrections has failed to prove its case by a preponderance of the evidence. There is conflicting evidence as to plaintiff’s actual striking of the escapees. The Commission elected to believe the witnesses asserting the striking. We find no error. There is even stronger evidence of plaintiff’s failure to make a written report of the violation, even upon request.

Plaintiff attempts to excuse his actions by claiming he received no training for his position. Plaintiff’s argument is without merit. Plaintiff admittedly received and read the rules and regulations of the Department of Corrections and L.T.I.-B.R.

Plaintiff claims the hearing referee erred in not admitting evidence of discrimination against him. In the first place, he did not allege discrimination as required by Civil Service Rule 13.11(d). However, the hearing referee did allow plaintiff to introduce evidence concerning alleged discrimination in the allotment of punishment to various individuals involved in the escape incident. Those employees who allegedly struck the escapees were terminated, while those who merely observed the beating were suspended. Plaintiff’s assertion of discrimination then would be dependent upon the failure of proof of his participation in the striking. As shown above we find no error in the Commission’s finding that plaintiff participated. The burden of proof is on plaintiff to show discrimination. LSA-Const. Art. 10, Section 8. We find plaintiff has not met that burden.

Plaintiff’s last complaint is that the Assistant to the Director of the Department of Corrections, who was the officer in charge of security guards at the time of plaintiff’s termination, is biased against plaintiff’s re-employment. The record fails to substantiate this charge.

For the above reasons, the judgment of the Civil Service Commission is affirmed at appellant’s costs.

AFFIRMED.

      . LSA-R.S. 14:93:
      “Cruelty to juveniles is the intentional or criminally negligent mistreatment or neglect, by anyone over the age of seventeen, of any child under the age of seventeen whereby unjustifiable pain or suffering is caused to said child. Lack of knowledge of the child’s age shall not be a defense.
      Whoever commits the crime of cruelty to juveniles shall be fined not more than one thousand dollars, or imprisoned for not more then ten years, without or without hard labor, or both.”


text:
    STATE of Louisiana v. Ronald K. STAFFORD.
    No. 13957.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 26, 1981.
    Ossie Brown, Dist. Atty., Parish of East Baton Rouge, Baton Rouge, Ralph L. Roy, Asst. Dist. Atty., Parish of East Baton Rouge, Baton Rouge, for plaintiff-appellee State of Louisiana.

      Bryan E. Bush, Jr., Baton Rouge, for defendant-appellant Ronald K. Stafford.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

Defendant appealed from a judgment adjudging him an habitual offender and revoking his driver’s license.

The issues are prescription and right to counsel.

We affirm.

Defendant, unrepresented by counsel, was convicted of driving while intoxicated on three occasions in 1975. Under the Motor Vehicle Habitual Offender Law, LSA-R.S. 32:1471 et seq., the Louisiana State Department of Public Safety-Driver Control Bureau certified the conviction record to the District Attorney’s office on April 23, 1979. On May 7, 1979, that office filed suit to have defendant adjudged an habitual offender.

After a hearing, defendant, not represented by counsel, was adjudged an habitual offender and his driver’s license was revoked.

Defendant, likening the revocation of a driver’s license to punishment by fine, argues the time limitations found in LSA-C.Cr.P. Art. 572 apply to habitual offender revocation proceedings. We find LSA-C. Cr.P. Art. 579 inapplicable, because the proceeding is a civil one. State v. Page, 332 So.2d 427 (La.1976).

The defendant then urges that prescriptive period of one or three years be applied to the civil action. In the recent case of State v. Vickers, 385 So.2d 487 (La. App. 1st Cir. 1980), we held that because the habitual offender statute does not contain a specific time limitation, the general prescription of ten years is applicable. LSA-C.C. Art. 3544. We are not persuaded to change that holding.

Defendant also claims the ten-day filing period required of the District Attorney by LSA-R.S. 32:1474 is mandatory. He urges dismissal as the appropriate sanction. He further claims he has been prejudiced by the District Attorney’s fourteen-day delay in instituting this action. Defendant’s claims have no merit. The provision for filing is merely directory and does not provide a prescriptive period. State v. Vickers, supra; State v. Skyeagle, 345 So.2d 189 (La.App. 3rd Cir. 1977), writ denied 347 So.2d 261 (La.1977). There is no evidence to show defendant was prejudiced by the fourteen-day delay.

Defendant next contends he was deprived of a constitutional right to counsel at his habitual offender hearing. He urges the prosecution should be required to establish affirmatively that a defendant “knowingly and intelligently” waived his right to counsel in all prior proceedings at which he was unrepresented, before the proceedings can be used in the habitual offender proceeding and hearing. The Louisiana Supreme Court in City of Monroe v. Fincher, 305 So.2d 108 (La.1974) held that Argersinger prohibited the use of a prior uncounselled DWI conviction in the prosecution and imprisonment of a repeat DWI offender whether or not his sentence following the prior conviction included imprisonment. In applying these two cases to the Motor Vehicle Habitual Offender Law, the court in State v. Love, 312 So.2d 675 (La.App. 2d Cir. 1975), writ denied La., 317 So.2d 627, held that the constitutional safeguards of Argersinger and City of Monroe do not invalidate un-counselled misdemeanor convictions which result in only civil disabilities. The court stated: “To extend Argersinger to automobile driver license revocation proceedings would frustrate the legislatively determined state policy of removing habitually hazardous drivers from the highways. The constitutional foundations for Argersinger, the protections of fair trial and due process, do not require this result.” State v. Love, supra.

There is no constitutional right to counsel in a civil proceeding which does not result in loss of liberty. U.S.C.A.Const. Amend. 6, 14; LSA-Const. Art. 1, Sec. 13; Argersinger, supra. We conclude that the state, in a civil proceeding authorized by the Motor Vehicle Habitual Offender Law, may have an unrepresented person declared an habitual offender on the basis of prior uncounselled convictions.

Defendant lastly complains the court erred in failing to warn him of the gravity of the charges against him. The record reveals defendant admitted to the charges against him in open court. His certified conviction record from the Louisiana State Department of Public Safety-Driver Control Bureau showing three convictions for DWI within a five-year period was introduced into evidence. The court then advised defendant he faced a five-year revocation of his driver’s license as a result of being adjudged an habitual offender. We feel the hearing afforded defendant the due process required under the Motor Vehicle Habitual Offender Law. State v. Edwards, 353 So.2d 476 (La.App. 3rd Cir. 1977).

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

AFFIRMED.

      . LSA-C.Cr.P. Art. 572:
      “No person shall be prosecuted, tried, or punished for an offense not punishable by death unless the prosecution is instituted within the following periods of time after the offense has been committed:
      (1) Six years, for a felony necessarily punishable by imprisonment at hard labor;
      (2) Four years, for a felony not necessarily punishable by imprisonment at hard labor;
      (3) Two years, for a misdemeanor punishable by a fine or imprisonment or both; or
      (4) Six months, for a misdemeanor punishable only by fine or forfeiture.”

      . LSA-R.S. 32:1474:
      “The district attorney, upon receiving the aforesaid abstract from the department, shall forthwith and within ten days after receipt of the abstract file a petition against the person named therein in the criminal district court for the parish wherein such person resides or, in the case of a nonresident, in the criminal district court of East Baton Rouge Parish. If the court is not in session when the aforesaid abstract is received by the district attorney or within ten days after its receipt, the district attorney shall file the petition within ten days after the court again convenes. The petition shall request the court to determine whether or not the person named therein is an habitual offender, and the court shall make its determination within thirty days after the petition is filed.”

      . In Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972) the United States Supreme Court held that, absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor or felony unless he was represented by counsel at his trial.


text:
    Leonce P. KLING, Jr. v. Richard H. McLIN.
    No. 13950.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 26, 1981.

      John Samaha, Baton Rouge, for plaintiff.
    Calvin Fayard, Denham Springs, for defendant.
    Rodney Cashe, Hammond, for third-party defendant.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

On October 14, 1976, plaintiff, Leonce P. Kling, Jr., purchased a used car from defendant, Richard H. McLin. When Kling applied for a title from the Louisiana Department of Public Safety, he was informed, on December 21, 1976, that no title would issue since the vehicle was encumbered with a chattel mortgage. On October 11, 1979, plaintiff brought suit against McLin, seeking return of the purchase price, interest and costs. McLin answered, denied plaintiff’s claim and named Durham Pontiac-Cadillac, Inc., a third party defendant.

McLin and Durham Pontiac-Cadillac each filed a peremptory exception of prescription, urging that plaintiff’s action was in redhibition and had prescribed by the passage of one year. The trial court maintained both exceptions and dismissed both plaintiff’s and third party plaintiff’s actions at their respective costs. Plaintiff appeals. We reverse.

A seller is bound to two principal obligations — that of delivering and that of warranting the thing which he sells. LSA-C.C. Art. 2475. The seller’s warranty has two objects — the first is the buyer’s peaceable possession of the thing sold and the second is the hidden defects of the thing sold or its redhibitory vices. LSA-C.C. Art. 2476.

The peaceable possession of a buyer is disturbed when he is evicted from the totality or a part of the thing purchased, due to the right or claims of a third person. LSA-C.C. Art. 2500. In the present case, the third person is Beneficial Finance Company of Hammond, the mortgage holder.

When a buyer sues his vendor for breach of the warranty of peaceable possession, the applicable period of prescription is ten years. LSA-C.C. Art. 3544. Evangeline Farmer’s Co-op, Inc. v. Vidrine, 378 So.2d 604 (La.App. 3rd Cir. 1979); Hoggatt v. Halcomb, 250 So.2d 471 (La.App. 2nd Cir. 1971); Gage v. Heins, 197 So.2d 699 (La. App. 4th Cir. 1967), writ refused 250 La. 917, 199 So.2d 921 (1967); Whitten v. Monkhouse, 29 So.2d 800 (La.App. 2nd Cir. 1947), amended on other grounds 213 La. 651, 35 So.2d 418 (1948). It was, therefore, error for the trial court to apply LSA-C.C. Arts. 2498 and 2546 and to find that plaintiff’s action had prescribed.

For the foregoing reasons, the judgment appealed from is annulled and reversed. The case is remanded to the trial court for proceedings not inconsistent with law and this opinion. All costs are to await a final determination on the merits.

REVERSED AND REMANDED.


author: COVINGTON, Judge.

text:
    Jo Ann Ballard JORDAN v. Herman Larry JORDAN.
    No. 13909.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 26, 1981.
    Philip R. Riegel, Jr., New Orleans, for plaintiff-appellee.
    Gerald J. Martinez, Metairie, for defendant-appellant.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   COVINGTON, Judge.

This is an appeal by the defendant, Herman Larry Jordan, from a judgment in favor of the plaintiff, Jo Ann Ballard Jordan, decreeing a separation from bed and board between the parties on the ground of abandonment; granting custody of the minor child, Scott Alan Jordan, to the plaintiff, with reasonable visitation rights accorded the defendant; and dismissing the reconventional demand for separation in favor of the defendant on the ground of cruel treatment. We affirm.

The original petition alleged that on February 18, 1977, the defendant had obtained a judicial separation, which was now null because of a reconciliation between the parties thereafter. The petition further alleged that subsequent to the reconciliation the husband had abandoned the wife and she was now entitled to a separation. The defendant then filed an answer and recon-ventional demand denying that there had been a reconciliation and urged that the February, 1977, judgment of separation be recognized as valid and a proper defense to the present action.

The appellant first contends that the trial court erred in finding a reconciliation between the parties. Our jurisprudence is now established that reconciliation is a matter of mutual intent, to be judicially determined in the light of the totality of circumstances of each particular case; proof of isolated acts of sexual intercourse between the parties is not conclusive of intent to reconcile, but is merely one of the factors to be considered in determining mutual consent and agreement to reconcile. Halverson v. Halverson, 365 So.2d 600 (La. App. 1 Cir. 1978).

In Millon v. Millon, 352 So.2d 325, 327 (La.App. 4 Cir. 1977), the Court said:

“Reconciliation is the voluntary resumption or reestablishment of the relationship which formerly existed between the parties. While sexual intercourse constitutes strong evidence that the relationship has been resumed, proof of one act or of several isolated acts of sexual intercourse is not necessarily conclusive of the issue of reconciliation.
“The issue of reconciliation under C.C. art. 154 is an issue of fact to be determined in each particular case by consideration of all the activities of the parties and by all of the circumstances of the case. See Blanchard v. Blanchard, 234 La. 790, 101 So.2d 671 (1958); Garrett v. Garrett, 324 So.2d 494 (La.App. 2nd Cir. 1976). In order to establish a reconciliation which will break the continuity of a period of separation or constitute a con-donation or forgiveness of past behavior, the overall circumstances must show a mutual intention by the parties to voluntarily resume their marital relationship. “Intent is determined from the totality of the circumstances in each case.”

Furthermore, reconciliation, and particularly the intent of the parties, are primarily questions of fact for the trial court whose decision shall not be disturbed unless manifestly erroneous.

The record supports the conclusion that there was a reconciliation. There was a mutual intention by the parties to resume voluntarily their , marital relationship. The parties reestablished a single marital domicile. The husband moved his clothes and personal effects back home. They occupied the same bedroom. They attended various events, went out socially together, and went to church as a family. They engaged in sexual intercourse as husband and wife. The reconciliation lasted from September, 1977, to January, 1978. The reconciliation is plainly described by the wife as follows:

“Q. Now, since the judgment of separation was rendered in February 1977, have you and your husband gone back together as man and wife?
A. Yes, we did.
Q. When did you reconcile or go back together?
A. It was around September 10th of 1977.
Q. Do you remember the circumstances of the coming together again?
A. Yes, I had approached him several times and tried to get him to let's try to work things out, but it was never my intention to be the route we would take, that I did not want a divorce, did not want a legal separation. He was very reluctant at first and then he agreed that we would try to work things out.
Q. Did you and your husband have sexual relations after that time?
A. Yes, sir, we did.
Q. After September?
A. Yes, we did.
Q. How often?
A. At the beginning very often, sometimes two times during the day, and then it tapered off to maybe two or three times a week.
Q. And did your husband move back into the family home?
A. Yes, he did.
Q. Did you and he occupy the same bedroom?
A. Yes, we did.
Q. Who was living at home at the time besides your husband?
A. Bobby and Scott.
Q. Did Mr. Jordan bring his clothes back to the house, his personal affects?
A. Yes, he did.
Q. Did you and he go places together or with the family during the time that you were together?
A. Yes, we did.
Q. Like where?
A. We went to church as a family. We went out to eat. He and I went to movies together. We went and visited people. We went to our parents’ homes.
Q. When did you separate?
A. January I believe the sixth.
Q. And who moved out of the house?
A. He moved out.
Q. And do you recall the circumstances of that separation?
A. Yes, I came home one night from work and he told me that he thought it was time for him to leave, that he was not happy, and it was not working out for him.
Q. And then what happened? What did you say to him?
A. I asked him, I said, well, I said, ‘Please, if, you know, if there are problems that we can talk about or is there some other direction we can go to work out the problems.’ I was very ill at the time. I had a kidney infection, and he just said no that he did not think it would work out and that he had tried and for him it was not working out.
Q. Then did he leave?
A. Yes, he did.
Q. Was it by with your blessing that he leave, or agreement or consent?
A. No, it was not with my blessing, agreement or consent.
Q. Since he left, have you made any requests of him that he return to live with you?
A. Many.”

Mrs. Jordan’s testimony concerning the reconciliation is not disputed by the husband, although he classified it as an “attempted reconciliation.” He, however, conceded that when he and his wife resumed living together in September, 1977, it was his “intention to patch up the marriage, to resume your husband and wife relationship.”

We conclude that there was a reconciliation between the parties which extinguished the February, 1977, action of separation. LSA-C.C. art. 152; Hickman v. Hickman, 227 So.2d 14 (La.App. 3 Cir. 1969).

Relative to the contention concerning separation on the ground of abandonment, LSA-C.C. art. 143 authorizes separation on this ground where either spouse leaves the matrimonial domicile without lawful cause and constantly refuses to return to live with the other spouse. Abandonment, as a ground for separation, may be established as any other fact in a civil suit pursuant to LSA-C.C. art. 145. The record establishes that Mr. Jordan, after their reconciliation following an earlier separation, moved from the matrimonial domicile on January 6, 1978, without lawful cause. The wife made several requests to the husband to return to live with her, but he steadfastly refused to do so. In response to a letter in which the wife requested his return, the husband telephoned her that he was “not interested” in returning. The wife’s testimony concerning the abandonment was corroborated by their teenage son, Scott.

From our review of the evidence, we find the husband has abandoned the wife; there has been a withdrawal from the matrimonial domicile without lawful cause and a constant refusal to return by the husband. Farkas v. Farkas, 264 So.2d 721 (La.App. 1 Cir. 1972); Belou v. Belou, 231 So.2d 580 (La.App. 4 Cir. 1970).

We agree with the fact findings and the decree of separation on the ground of abandonment in favor of the plaintiff made by the trial court. We find no abuse of the court’s discretion. The judgment is, therefore, affirmed at the appellant’s costs.

AFFIRMED.


text:
    Lynda Shipp EFFERSON v. Chester Clay EFFERSON.
    No. 13929.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 26, 1981.
    H. Evans Scobee, Baton Rouge, for plaintiff-appellant Lynda Shipp Efferson.
    Lee Herrington and Fred H. Belcher, Jr., Baton Rouge, for defendant-appellee Chester Clay Efferson.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   COVINGTON, Judge.

This is an appeal by the plaintiff, Lynda Shipp Efferson, from a declaratory judgment of the trial court in favor of the defendant, Chester Clay Efferson, dismissing the demands of the plaintiff and casting her for the costs, for written reasons assigned.

The judgment had the effect of holding that the judgment of separation signed on March 2,1970, terminated and dissolved the community of acquets and gains previously existing between the plaintiff and the defendant, and that all property acquired by the parties thereafter, and particularly corporate stock acquired by the appellee, was the separate property of the respective spouses. The District Court also held that the reconciliation, later in March of 1970, did not vitiate the effect of the separation judgment. The court below further held that, since the parties had few assets and had more debts than assets at the time of the 1970 separation, and since they had jointly used up the assets of the community to pay off community debts, “there was a final dissolution and/or partition of the community although such was not formally reduced to writing;” hence, there was no merit to the plaintiff’s argument about commingling of funds. The trial court further held that the evidence established that the earnings of the husband and wife following the 1970 separation were used in living expenses and were not invested in the particular corporate stock in question. We affirm.

The record shows that plaintiff-appellant, Lynda Shipp Efferson, and defendant-ap-pellee, Chester Clay Efferson, were married on July 28, 1958. Marital problems subsequently developed and the parties began living separate and apart in December of 1969. The wife filed a suit for separation from bed and board in the Family Court for the Parish of East Baton Rouge, on February 5, 1970. The husband reconvened for separation in his favor. On February 25, 1970, the Family Court rendered a judgment of separation in favor of Mr. Effer-son, granted custody of the children to Mrs. Efferson, and awarded child support. The judgment of separation was signed on March 2, 1970.

While the parties were living separate and apart, they opened a special checking account which required the signatures of both parties. They also sold all of the community assets and deposited the proceeds therefrom in the special bank account; and then wrote joint checks to pay bills. Thus, the former community, for all practical purposes, was totally liquidated, with no assets remaining.

Subsequently, between March 20 and 31, 1970, the parties reconciled; this was a time period which fell entirely within the time during which either party could have taken an appeal from the March 2, 1970, separation judgment, although neither party did appeal. They lived together until another separation suit was filed in the East Baton Rouge Parish Family Court on February 9, 1978. A judgment of separation was signed on June 29, 1978. After various proceedings, judgment was rendered on April 10, 1979, recognizing the final decree of divorce obtained on December 12, 1978, by Mr. Ef-ferson from the Chancery Court of Wilkinson County, Mississippi, as the judgment of the Family Court.

The present lawsuit was filed by Mrs. Efferson seeking a declaratory judgment that, due to the reconciliation within the time limits for taking an appeal, the community was not terminated by the 1970 separation judgment, but continued until the 1978 separation judgment, which culminated in a final divorce. She originally sought alternative relief, alleging that if the 1970 judgment did terminate the community, there was a commingling of the former community funds and the new separate property funds after their reconciliation, so that the separate funds lost their character as such and became community funds. Due to its finding that there was no community after March 2,1970 and that the earnings of both parties were expended after their reconciliation, the trial court found that the plaintiff’s argument about commingling of funds was inapplicable. That claim is not pursued in this appeal. Also, the plaintiff’s original petition requested injunctive relief to prohibit the alienation of the defendant’s interest in any property acquired during the alleged community property regime between 1970-1978. This injunctive relief was abandoned by the plaintiff prior to the trial below and is not a subject of this appeal.

Articles 136 and 155 of the Louisiana Civil Code are specific about the effect of a judgment of separation and a subsequent reconciliation of the spouses on the community of acquets and gains between the parties. Article 136 provides that separation terminates “the common concerns” which existed between the spouses. Article 155, as it read in 1970 (Act No. 178 of 1962), provided that the judgment of separation had the effect of separating the “goods and effects” of the community from the date of the filing of the suit, except for certain rights; however, upon reconciliation, the spouses could reestablish the community by executing an authentic act, duly recorded, to that effect, but which act could not adversely affect rights acquired between the separation judgment and the recording of the act of reconciliation.

In the instant case no act of reconciliation reestablishing the community was confected and recorded, and no appeal was taken from the March 2, 1970 separation judgment. It is, thus, the plaintiff-appellant’s argument that inasmuch as she and her husband reconciled prior to the expiration of the delays for appeal, the reconciliation abated and vitiated all effects of the judgment of separation, and in effect reestablished the community, although there was never executed a formal matrimonial agreement pursuant to Article 155 of the Louisiana Civil Code. We do not agree with this contention. Although a reconciliation, whether it occurs before or after the expiration of the delays for appealing from a judgment of separation from bed and board, vitiates the judgment in all other respects, it does not abate or vitiate the termination of the community.

In a case very similar to the case at bar, Jarreau v. Succession of Jarreau, 268 So.2d 101 (La.App. 1 Cir. 1972), writ denied, 263 La. 986, 270 So.2d 122 (1972), the Court held the community was terminated by the judicial decree of separation. The wife obtained a judgment of separation on November 19, 1960. On December 15, 1960, less than 30 days after the judgment of separation and before the delay for appeal had expired, the spouses were reconciled and continued to live together until the death of the husband. The separation judgment had not been appealed and the parties had not formally reestablished the community after the reconciliation. They had formally partitioned the community by act dated November 28, 1960.

In holding that the community had terminated and had not been reestablished, the Court said:

“We further hold that once the community of acquets and gains is terminated by judicial decree of separation, it can only be restored in compliance with the provisions of LSA-C.C. art. 155.” (268 So.2d at 104.)

In Cotton v. Wright, 214 La. 169, 36 So.2d 713 (1948), our Supreme Court said:

“A decree of separation from bed and board carries with it a dissolution of the community which is not re-established by the reconciliation of the parties.”

In Harang v. Harang, 317 So.2d 289 (La. App. 1 Cir. 1975), the Court ruled that it is the judgment of separation, not a formal partition of the community property, which terminates the community; and, once terminated by the judicial decree, the community may be restored, upon reconciliation of the spouses, only by a formal act duly recorded.

Similarly, in Corkern v. Corkern, 270 So.2d 209, 213 (La.App. 1 Cir. 1972), the Court expressly stated:

“The law is clear that once the community of acquets and gains is terminated such as by virtue of a judicial separation, the subsequent reconciliation of the spouses, although it operates to vitiate the judgment of separation in other respects, does not re-establish the community of acquets and gains which previously existed between the spouses, nor does it establish a new community of acquets and gains between the spouses. On the contrary, the spouses remain separated in property unless and until they both agree to avail themselves of the privilege of re-establishing the community of acquets and gains as provided for by Louisiana Civil Code Article 155, Austin v. Succession of Austin, 225 La. 449, 73 So.2d 312 (1954); Barnes v. Barnes, 207 So.2d 895 (La.App. 1st Cir. 1968); Maloney v. Maloney, 197 So.2d 131 (La.App. 4th Cir. 1967); Sylvester v. Sylvester, 137 So.2d 716 (La.App. 3rd Cir. 1962).”

Moreover, in Austin v. Succession of Austin, 225 La. 449, 73 So.2d 312 (1954), noted 29 Tul.L.Rev. 144 (1954), our Supreme Court specifically held that, after the judicial decree of separation, the community could be reestablished upon reconciliation of the spouses only by compliance with Article 155 of the Civil Code, providing for reestablishment by notarial act.

The appellant contends that D’Antoni v. Geraci, 224 La. 818, 70 So.2d 883 (1954); Arnold v. Arnold, 345 So.2d 1020 (La.App. 2 Cir. 1977); and Smith v. Smith, 378 So.2d 509 (La.App. 4 Cir. 1979), dictate that if there is a reconciliation during the delays for an appeal, even though an appeal is never taken, the action is abated and extinguished so that the community is not terminated and need not be reestablished by a formal act.

In, D'Antoni v. Geraci, supra, the trial court granted the husband a divorce and gave custody of the child to the wife. The wife perfected an appeal; while the case was on appeal, the parties submitted a joint motion to the effect that they had become reconciled and that “the cause of action has thus abated, and the appeal to this Honorable Court and the cause of action itself should be dismissed, thus nullifying the judgment of divorce rendered in proceedings No. 307-799 of the Civil District Court for the Parish of Orleans.” In accordance with the motion, the order was signed dismissing the appeal and the cause of action, “thus rendering ineffective the judgment of divorce rendered in said proceedings.” About sixteen months later, the husband filed a rule for child custody in the original proceeding. The Court properly held that there was no proceeding pending before the court in which the ancillary matter of custody could be considered. DAntoni is not authority for the proposition that reconciliation during the time for taking an appeal, even though no appeal is taken, abates or vitiates the termination of the community. That question was not considered by the DAntoni Court.

Although Arnold v. Arnold, supra, does purport to say that reconciliation of the spouses before the separation judgment has become definitive has the effect of extinguishing or abating the entire judgment of separation, the question before the court was whether the judgment of separation was effective. In the Arnold case, the husband obtained judgment of separation by default. The wife had been served by domiciliary service; consequently, it was necessary that she be served with notice of judgment before the appeal delays could begin to run. The wife was never served with notice of the default judgment. Thus, the judgment in Arnold was never effective. In the instant case the parties were not entitled to notice of judgment, so the judgment was effective from its signing on March 2, 1970. Furthermore, we disagree with the Arnold Court’s construction of Article 155 of the Civil Code. As the trial judge said in his written reasons, a statement with which we are in complete accord: “This Court believes that Arnold is contrary to all of the jurisprudence and, if applied literally, would have far reaching and disastrous effects on titles to real estate and the public records doctrine.”

The case of Smith v. Smith, supra, is also distinguishable. The wife obtained a default judgment of separation from her husband on June 13, 1952. He perfected a suspensive appeal. Following the appeal, at various times, there were motions to dismiss filed in the trial court by each of the parties on the basis of reconciliation. No motion to dismiss was filed in the Supreme Court by the parties; however, finally the Supreme Court dismissed the appeal for want of prosecution for five years. Following the reconciliation, the parties lived together until December, 1966 when they again separated. On February 27, 1976, Mrs. Smith obtain a judgment of divorce. She later obtained an order directing a partition of the community. The notary appointed by the court to effect the partition listed, as community property, only those assets acquired by the parties prior to the separation decree in 1952. The wife traversed the inventory, asserting that the separation judgment had been abated because the parties were reconciled pending the appeal and, thus, the community was never terminated. The trial court ordered that the inventory be made again to include all assets of the property acquired between the date of marriage (October 14,1936) and the date of the filing of the divorce suit (May 13, 1975). On appeal, the Court of Appeal affirmed, stating that “We agree with the conclusion of the trial judge that the judgment was never final, hence no dissolution of the community ever occurred.” (378 So.2d at 510). Smith does not stand for the proposition that extinguishment or abatement of the action of separation (or divorce) results from a reconciliation during the delays for taking an appeal where no suspensive appeal is ever taken.

Accordingly, for the reasons assigned the judgment of the District Court is affirmed at Appellant’s costs.

AFFIRMED.

      . She was, at the time of trial, Lynda Shipp (Efferson) Stroud.


text:
    DOW CHEMICAL COMPANY v. CENARD OIL & GAS COMPANY et al.
    No. 13934.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 26, 1981.
    Writ Refused April 6, 1981.
    Boris F. Navratil, Baton Rouge, for plaintiff-appellee, Dow Chemical Co.
    Sheryl L. Hopkins, New Orleans, for defendant-appellant, Cenard Oil and Gas Co.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   COVINGTON, Judge.

This is a suspensive appeal from a judgment sustaining the motion of plaintiff, Dow Chemical Company (Dow), for a summary judgment, denying the motion of defendant, Cenard Oil & Gas Company (Ce-nard), for a summary judgment, and rendering judgment in favor of plaintiff and against defendant in the amount of $37,-267.23, with interest and costs, said judgment having been signed on March 5, 1980. We reverse and remand.

This suit was instituted by Dow against Cenard, Richard 0. Brennen and J.F. Corley on August 17,1978, to recover prepayments allegedly made by Dow to Cenard and the other defendants under a gas purchase contract. By answer filed March 13, 1979, Cenard generally denied the allegations of Dow’s petition and by way of affirmative defense specifically averred extinguishment of the claim by novation. Thereafter, Dow and Cenard each filed opposing motions for summary judgment on different bases, which resulted in the judgment complained of on this appeal.

Under LSA-C.C.P. art. 966, it is only where there is no genuine issue as to material fact and the mover is entitled to judgment as a matter of law that the motion for summary judgment can be granted. Morgan v. Matlack, Inc., 342 So.2d 167 (La.1977); Batson Lumber Co., Inc. v. Yates, 319 So.2d 853 (La.App. 1 Cir. 1975).

A reading of the pleadings, answers to interrogatories, the contract in question, and the annexed affidavits convinces us that the trial court committed error in granting Dow’s motion. The case is not in a posture for summary judgment; there are genuine issues of material fact, e. g. whether or not Dow made performance under the contract impossible for Cenard; whether Dow novated the original contract without the agreement of Cenard; and what procedure, if any, does the contract set out to recover for gas paid for but not taken.

In the case of Fly v. Hand, 376 So.2d 1016, 1020 (La.App. 1 Cir. 1979), this Court remarked:

“Therefore, a trial on the issue of failure of consideration will be necessary to determine Hand’s obligation on the subject note, as well as any other pertinent issue that may develop at the trial on the merits. From our observation, summary judgments are sparingly granted. The purpose of the summary judgment procedural device is to dispose expeditiously of cases involving only issues of law; hence, the mover for summary judgment has a heavy burden of proving that there is no genuine issue of material fact. In determining the genuineness of the issue, the courts are not permitted to consider the merits of the fact at issue, the credibility of witnesses, or whether or not the party alleging the fact will be able to sustain the burden of proving it. The courts have repeatedly held that a motion for summary judgment is not a substitute for a trial on the merits. Odom v. Hooper, 273 So.2d 510 (La.1973); Batson Lumber Co., Inc. v. Yates, 319 So.2d 853 (LaApp. 1 Cir. 1975).”

Moreover, we are unable to say that the gas purchase contract is entirely free of ambiguity in the matters set out above. Thus, there is a genuine issue of material fact as to the intention of the parties concerning reimbursement for cash advances, and a trial on the merits is required. Teledyne Movible Offshore, Inc. v. C & K Offshore Company, 376 So.2d 357 (La.App. 3 Cir. 1979).

For the assigned reasons, we reverse the trial court’s granting of the motion for summary judgment and the judgment rendered thereon, remand to the trial court for further proceedings, and assess all costs of this appeal against the plaintiff-appellee.

REVERSED AND REMANDED.

      . The suit against the two named individuals, Brennen and Corley, was dismissed below by Dow and that matter is no longer before the Court.


author: CHIASSON, Judge.

text:
    DELTA SOUTHERN COMPANY, INC. v. LOUISIANA & ARKANSAS RAILWAY COMPANY et al.
    No. 13713.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 26, 1981.

      Felix R. Weill, Baton Rouge, for plaintiff-appellee Delta Southern Co., Inc.
    W. Richard House, New Orleans, for defendants-appellants Louisiana & A. Ry. Co. and The Kansas City Southern Ry. Co.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   CHIASSON, Judge.

The defendants-appellants, Louisiana & Arkansas Railway Company and The Kansas City Southern Railway Company, have suspensively appealed a judgment of the district court in favor of plaintiff, Delta Southern Company, Inc., in the amount of $17,062.00 with interest and costs. Plaintiffs-appellees have answered the appeal seeking an additional sum of money for repairs allegedly needed on certain spur tracks.

Delta Southern filed this suit against the Louisiana & Arkansas Railway Company and its successor corporation, The Kansas City Southern Railway Company. It seeks to recover sums of money which the plaintiff allegedly spent in having certain maintenance work performed by Sigma Service Corporation on certain spur tracks due allegedly to defendants’ failure to maintain the railroad spur tracks located on plaintiff’s property pursuant to an Industry Track Agreement. In addition, it seeks an additional amount to spend in making future repairs to the tracks.

The pertinent provisions of the Agreement are as follows:

“4. Tracks shall be maintained and renewed to the satisfaction of Railway Company’s Chief Engineer, the work to be performed by Railway Company, and the cost thereof borne as follows: * * *
“(a) Industry will pay to Railway Company in the manner provided in paragraph (e) of this Article 4, the amount of $465.80 per year for the maintenance of 4658 ft. of said side track, (not including trestles or other special structures) being that portion of tracks as described above, which amount is fixed at ten (10) cents per track foot per annum.... ”

According to this contract the sole standard for determining the need for repair work was the Chief Engineer of the Railway Company. The appellant contends that agreements of this kind are valid and binding upon the parties citing Shea v. Sewerage & Water Board, 124 La. 299, 50 So. 166 (1909); Fritz Jahncke, Inc. v. Fidelity & Deposit Co., 166 La. 593, 117 So. 729 (1928); and J. H. Jenkins Contractor, Inc. v. City of Denham Springs, 216 So.2d 549 (La. App. 1st Cir. 1968). We agree with this basic rule, but we find the exception to this rule applicable in this case. As stated in the Jenkins decision, supra, pg. 553:

“ * * * The pertinent rule, rather, as declared in the Jahncke case, supra, is to the effect that a contract clause providing the architect or engineer shall be the final arbiter of disputes is binding upon the parties unless the architect or engineer’s decision is manifestly arbitrary or rendered in bad faith. In the Jahncke case we find the following clear and positive pronouncement:
‘An architect is a person skilled in the art of building, is the recognized head of the building trade, and is supposed to be skilled in the art of planning and designing structures of every description. 2 Am. & Eng.Ency. of Law, p. 815.
Where, therefore, the parties have agreed to abide by the decision of an architect, the courts will hesitate, in the interpretation of the contract, to set aside the architect’s ruling, unless manifestly arbitrary, or is shown to have been rendered in bad faith.’ ”

See also Sabine Const. Co., Inc. v. Cameron Sewerage Dist. No. 1, 298 So.2d 319 (La. App. 3rd Cir. 1974).

In the case before us, the parties agreed that the Railway Company’s Chief Engineer would be the person designated to determine if the tracks needed repair. The testimony of the Chief Engineer was that he has never inspected plaintiff’s spur track. The closest he came to the spur track was 200 feet while working on the appellant’s own line. We must conclude that since this dispute as to the need of repairs has been going on for some four years and the person designated to decide whether repairs were needed has failed to make an inspection and decision, that this inaction is arbitrary on the part of the Railway Company.

The Chief Engineer stated at trial that he was not the person in charge of maintenance in the Railway’s chain of command. Regardless of this statement, the contract provided for the Chief Engineer to be the person whose determination was required for a determination of whether maintenance was necessary and to what extent. The arbitrary inaction on the part of the Railway thus entitled the trial court to look into the condition of the spur tracks.

As a matter of fact, the trial court found: “Based on the testimony of the expert witnesses and the testimony concerning the number of derailments, the Court is convinced that the track was in a state of disrepair. The Court is also convinced that the defendant (the Railway Company) did not fulfill its obligation of maintaining and renewing the track. The plaintiff has proved by a preponderance of the evidence that the repairs made to the track in 1977 were necessary in order to ensure the safe shipment of its vessels. The Court does not believe that the track would have to reach such a condition that it was no longer usable before defendant would be responsible for repairs.”

These facts were derived from four expert witnesses, three of whom testified as plaintiff’s witnesses. One of the three was a former roadmaster for the defendants who later supervised the repair work for the Sigma Corporation. He stated that no repairs performed were “unnecessary.” In addition, the defendants’ present roadmas-ter testified that the track was in need of repair but was not in a deplorable condition. We do not find that the trial court committed manifest error in its findings of fact. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

The award to plaintiff of the cost of repairs performed by the third party contractor in the amount of $17,602.00 is affirmed.

The trial court denied recovery to the plaintiff for cost of repairs to be performed in the future and appellee has answered the appeal seeking this award. We agree with this decision since the contract is still in force and the determination of the necessity of repairs must be made by the Railway’s Chief Engineer.

For the reasons assigned, the decision of the trial court is affirmed at appellants’ costs.

AFFIRMED.

      . Delso Corporation, as assignee of Delta Southern’s predecessor, Delta Tank Manufacturing Company, Inc., was added as a party plaintiff. Reference to Delso was not made in the trial court’s judgment.


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    TERREBONNE PARISH POLICE JURY v. Carroll MATHERNE.
    No. 13889.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 26, 1981.

      Michael J. Samanie, Houma, for plaintiff and appellee.
    A. J. Gray, III, Lake Charles, Minor Pipes, Houma, for defendant and appellant.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   CHIASSON, Judge.

Defendant-appellant, Carroll Matherne, appeals the judgment of the trial court enjoining him from interfering in any way with the Forced Drainage Project No. 1-1A constructed and maintained by the plaintiff-appellee, Terrebonne Parish Police Jury, in the Parish of Terrebonne.

Carroll Matherne owns an 800 acre tract of land in Terrebonne Parish which is bordered by Bayou Cane to the West, Little Bayou Black to the South and Hollywood Road on the East. The northern boundary consists of a drainage canal referred to as “Canal C” which is the center of dispute in this matter.

Terrebonne Parish Police Jury devised a forced drainage system in the Parish known as the Forced Drainage Project No. 1-1A to control serious flooding in several residential areas. The waterways that were included in this project are the two previously mentioned bayous and the controversial “Canal C.” The system was not intended to include Matherne’s property, which is composed mostly of farmland.

After completion of the project in December of 1979, heavy rains pounded the Parish with eleven inches of rain falling within a 31 hour period in April of 1980. Extensive flooding occurred in the Control Drainage Project area. The system did not control the flooding as expected, so the Police Jury instituted an investigation to determine the cause of its failure.

Three of the Jury’s employees, S. P. Brunet, Richard Baptiste, and John Swilley, testified that the failure of the system was caused by the flow of water from Math-erne’s property into Canal C. Several large drainage ditches had been opened by Math-erne to allow more of his property to drain into Canal C. The Police Jury proceeded to “plug” these openings which caused the flooding to recede within the next 12 hours.

Matherne proceeded to reopen one of the openings and began what he termed “cleaning out” another ditch. The result was an additional enlarged drainage canal flowing into Canal C. As one employee described the opening, it was large enough to propel a motorboat through it.

The Police Jury again attempted to close the opening but Matherne ordered them off his property. After this action, the Police Jury obtained a Temporary Restraining Order restricting Matherne from taking any additional action until a hearing could be set on the matter for a preliminary injunction.

After a full hearing with the introduction of numerous aerial maps and many expert witnesses, the trial court for written reasons assigned granted the preliminary injunction. In its reasons, the court recognized the authority of the Police Jury to control and maintain Canal C under La.R.S. 38:113. In addition, the court concluded that injunctive relief was a proper remedy available to the Police Jury. It is from this ruling that the appellant, Matherne, perfected this appeal.

We will limit our discussion to the correctness of the trial court’s decision on the injunction. Other remedies available to the parties are not before this court at this time and will not be passed upon.

Applicable to the determination of this matter is La.R.S. 38:113, which reads as follows:

“The various levee and drainage districts shall have control over all public drainage channels within the limits of their districts and for a space of one hundred feet on each side of the channel, selected by the district and recommended and approved by the Department of Public Works, whether the drainage channels have been improved by the levee or drainage district, or have been adopted without improvement as necessary parts of or extensions to improved drainage channels, and may adopt rules and regulations for preserving the efficiency of the drainage channels.”

Certain prerequisites are essential before such a governmental body as the Police Jury may take advantage of the provisions of this statute. First of all, the Police Jury must qualify as a levee and drainage district. Secondly, the canal it wants control over must be a public drainage channel within the limits of the governing body’s district. Thirdly, the channel must be selected by the district and recommended and approved by the Department of Public Works. Lastly, this channel must have been improved by the governing body or must have been adopted without improvement as a necessary part or extension to improved drainage channels.

The Terrebonne Parish Police Jury is the proper party to bring this action. Under the law and the jurisprudence, the Police Jury which has control and maintains all public drainage channels is considered the appropriate governmental body to bring this action. La.R.S. 38:141. Dugas v. St. Martin Parish Police Jury, 351 So.2d 271 (La.App. 3rd Cir. 1977); Plaquemines Parish Com’n v. Hero Lands Co., 388 So.2d 790 (La.1980).

The second prerequisite is the crucial requirement in this case. “Canal C” must be considered a public drainage channel located within the district for the Police Jury to have control over it. The Dugas case, supra, at page 273 discusses this concept by citing with approval the written reasons of the trial court:

“ ‘Let’s look now to a definition of public drainage channel to see if the drainage ditch in this case, which was always referred to as the “Dugas Ditch”, comes within the meaning of the public drainage channel. I find no explicit definition in the law of this State of a public drainage channel. The conclusion I've reached, I’ve gleaned from several sources. One is Section 215 of Title 38, which defines drainage as any natural drain or artificial drain which has been used for purposes of drainage for at least ten years. In the case of Scott versus Red River-Bayou Pierre Levee and Drainage District of Louisiana, a 2nd Circuit decision, reported in (La.App.) 7 So.2d 429, the court said that for purposes of Act 61 of 1904, which is, as I said, R.S. 38:113, that for those purposes it’s immaterial whether it’s a natural drain or an artificial drain as long as it’s maintained for many years as a drainage ditch. That’s how that court defined a public drainage channel within the meaning of Section 113. In the Petit Anse [Coteau Drainage District v. Iberia & Vermillion Railroad Co., 124 La. 502, 50 So. 512] Case which I referred to earlier, the Louisiana Supreme Court in considering Act 61 of 1904, defines public drainage by distinguishing public drainage from drainage affecting only the interests of particular individuals. The converse of that is that public drainage is drainage affecting the interests of other than particular individuals; that is, individuals in general and the public. (Tr., pgs. 146-147).’ ” (Footnote Omitted).

In his brief, defendant-appellant in a footnote states that he makes no issue over whether Canal C is “public” or “private.” Aside from this statement, we agree that Canal C is a public drainage channel as found by the trial court in its reasons for judgment. Mr. S. P. Brunet, herbicide spray foreman for the Police Jury, testified that he maintained Canal C for four and one half years, making monthly inspections of the canal. Two other witnesses testified that the canal was cleaned and widened by the Police Jury during the construction of Project 1-1A. In addition, aerial maps introduced into evidence reflect that other areas drain into the canal even though it may only have been built by Matherne’s ancestors in title for their farming purposes.

The third prerequisite is that the Channel was selected by the Police Jury and approved by the Department of Public Works. The construction plan maps were introduced into evidence and reflect that the disputed Canal C was selected by the Police Jury and was accepted as part of Project 1-1A by the Department of Public Works. We again agree with the trial court’s factual conclusions on this point.

The remaining requirement is that the channel is a necessary part or extension to improve drainage channels. There is no serious dispute that the cleaning and control of Canal C is an integral part of the Forced Drainage Project 1-1A which is designed to improve the drainage channels in the immediate area.

With these prerequisites met, the Police Jury has acquired a limited servitude to control and maintain Canal C as a drainage channel. It has not claimed ownership of either the canal or the land adjacent to it nor has it acquired such. See Dugas, supra, and Scott v. Red River-Bayou Pierre Levee & D. Dist., 7 So.2d 429 (La.App. 2nd Cir. 1942). If the Police Jury has taken or damaged the adjacent landowner’s property, there are available remedies for the landowners, but not in this summary proceeding.

Since the Police Jury enjoys the limited servitude which extends “for a space of one hundred feet on each side of the channel” it may take any appropriate measures solely for the “preservation of the efficiency of such drainage channel(s).” La.R.S. 38:113.

In this particular case, the appropriate measure was seeking to enjoin Math-erne from interfering with the efficiency of drainage of Canal C. The record is full of testimony that the actions of Matherne in “cleaning out” his ditches had an adverse effect on the drainage in Canal C and in the Forced Drainage Project as a whole.

In granting the Preliminary Injunction, the trial judge stated:

“After reviewing the evidence presented in (sic) the arguments of counsel, this Court is convinced that Mr. Matherne’s actions in cutting large ditches, which open into ‘Canal C’ did, in fact, impair the integrity and efficiency of Forced Drainage Project 1-1A. Mr. Matherne himself testified that unless he were to be restrained by Court order, he had every intention of draining his 800 acre tract of land into ‘Canal C’ and therefore enter Forced Drainage Project 1-1A. It is obvious that the drainage system was intended and designed to be a closed system. Continued introduction of excessive amounts of water from a source outside the system destroys the efficiency of the system itself. Unless the system’s integrity is maintained, irreparable injury will be suffered by the many residents lying within the project area. * * *”

We agree with this conclusion and affirm the issuance of the Preliminary Injunction based on this showing of irreparable harm.

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

AFFIRMED.


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    Albert B. MURPHY, Jr. v. SHERMAN HOMES, INC.
    No. 13910.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 26, 1981.
    Leonce J. Malus, III, New Orleans, for plaintiff-appellant.
    W. M. Hingle, Slidell, for defendant-ap-pellee.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   CHIASSON, Judge.

Plaintiff-appellant, Albert B. Murphy, Jr., appeals the decision of the trial court dismissing his claim against defendant-ap-pellee, Sherman Homes, Inc., for defective roof work performed by defendant in connection with plaintiff’s newly constructed home in Slidell, Louisiana.

Murphy and Sherman Homes, through one of its authorized agents, entered into a contract whereby Sherman Homes would construct a house in the residential subdivision known as Cross Gates Subdivision near Slidell. The agreement was entered into on July 12, 1977 and work commenced about a week later.

Plaintiff made periodic inspections of the progress on the house including one such inspection in late August, 1977. The inspection had been preceded by two days of severe rainstorms. Upon inspecting the premises, Murphy noted that the plywood sheeting and the felt had been placed on the roof, but no roofing shingles were in place at this time. He pointed out to the construction foreman that some of the felt was torn and that the plywood was wet. In addition, he informed Mr. James Sherman, Sr., president of Sherman Homes, Inc., of this condition.

Assured that this problem would be corrected, plaintiff did nothing further until October 18, 1977, when he pointed out the wavy condition of the roof to Mr. Sherman. Murphy was again reassured that this condition would be corrected.

Pursuant to a mutual agreement, Murphy moved into the house although it was not fully completed. On December 4,1977, Mr. Sherman requested a closing date from Mr. Murphy, who again, pointed the problem out. Mr. Sherman gave assurances that it would be corrected and introduced Mr. Murphy to a Mr. Ryals, who would serve as Sherman Homes’ warranty representative. Based upon Sherman’s commitment to remove the waviness in the roof, Murphy agreed to a closing date.

The closing of the sale was accomplished on December 12, 1977, and within ten days the original roofing crew came to the house. They patched and reshingled certain areas of the roof but with little result. In addition, the new shingles were not of the same color as the older ones were.

After several months, a different crew attempted to correct the problem, but no improvement had taken place. Defendant sent out a number of inspectors to view the situation, but no further attempts were made to correct the problem.

Plaintiff filed suit seeking recovery of the cost of replacing the roof with an entirely new one. The new roof was recommended by one of the inspectors of the house. Mr. William H. Heffley, president of Slidell Roofing and Sheet Metal, was contacted by the plaintiff after he had viewed the house for the defendant. His recommendation was that the old roof with lh inch plywood should be removed and a completely new roof with % inch plywood be used instead. He was of the opinion that any other method of repair would merely conform to the old sheeting.

The trial court in its written reasons for judgment found that the roof was a common type with the xh inch plywood sheeting and rafters on 24 inch centers. It concluded that there was a “complete lack of testimony as to whether or not the plans and specifications were followed in the building of this roof on this particular house. In view of the lack of such evidence the court must conclude that the plans and specifications were followed and the court believes that the testimony of all the roofing experts was that it was a standard type of roofing that most people building these houses were using xh inch plywood sheeting covered with felt and that waves in the roof were common.”

Appellant’s contention on appeal is that the trial court failed to recognize what appellant’s suit was based on. He is contending that irrespective of what was included in the plans and specifications, Sherman Homes, through their agents, obligated themselves by expressly warranting to fix the waviness of the roof. We agree and therefore reverse the trial court’s decision.

Plaintiff’s uncontradicted and unim-peached testimony is that, on at least three occasions, he complained about the waviness of the roof to representatives of the defendant, who, on each occasion, agreed to remedy the defect. This testimony, collaborated by the actions of the defendants in attempting to correct the defect on two occasions after the sale, convinces us that an oral agreement, whether modifying the building contract or not, had been entered into between the parties binding the defendant to remove the waviness in the roof by whatever means necessary. Charles C. Cloy, Gen. Con., Inc. v. DiVincenti Bros., Inc., 308 So.2d 495 (La.App. 1st Cir. 1975).

The pretrial order clearly sets forth the plaintiff’s cause of action as being based upon this agreement. Defendant’s defense that the roof was structurally sound and contained no redhibitory vices or defects was not relevant to plaintiff’s stated cause of action.

The agreement to correct the condition of the roof constituted a binding agreement on the defendant even though not in writing. Since the building contract, though not introduced into the record, “need not be in writing, parol evidence is admissible to prove a subsequent verbal agreement, or to modify or even abrogate a written construction contract; W. R. Aldrich Company v. Spallita, 285 So.2d 835, 836 (La.App. 1 Cir. 1973).” Anzalone v. Gregory, 334 So.2d 504 (La.App. 1st Cir. 1976).

Defendant breached its agreement by failing to remedy the condition of the roof and is liable to plaintiff for damages. Mr. Heffley estimated that it would cost $7,447.00 to remove and replace the roof with new materials. This figure includes a new roof using % inch plywood. We are convinced that the only way to remedy the defect is by removing and replacing the entire roof sheetings, felt and shingles.

For these reasons, the judgment of the trial court dismissing plaintiff’s suit is reversed and judgment is rendered in favor of plaintiff, Albert Murphy, Jr., and against defendant, Sherman Homes, Inc., in the sum of $7,447.00 with legal interest thereon from date of judicial demand until paid. Defendant-appellee is casts for all costs.

REVERSED AND RENDERED.


text:
    Charley BARROW v. ZACHARY TRANSMISSION SERVICE, INC.
    No. 13935.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 26, 1981.
    Robert Hugh Marve, III, Houma, for plaintiff-appellant Charley Barrow.
    Donald R. Weber, Baton Rouge, for defendant-appellee Zachary Transmission Service.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   CHIASSON, Judge.

Charley Barrow, plaintiff-appellant, appeals the decision of the trial court dismissing his suit for tortious conversion of his automobile by the defendant-appellee, Zachary Transmission Service, Inc. We affirm.

Barrow owned a 1965 automobile which he brought to Zachary Transmission for repairs to the transmission on January 12, 1978. After the repairs were made and Barrow paid the $320.00 bill, he used the car for about two weeks before the same problems reoccurred. He returned the car to appellee for further repairs. This pattern continued a number of times until May of 1978 when appellant brought it in for the last time.

After making two trips to recover his vehicle and finding that it was not ready, Mr. Barrow contacted an attorney. About a week later the appellee informed the attorney that Mr. Barrow could pick up his car. This was never done and suit followed.

The trial court dismissed appellant’s suit finding that there was no tortious conversion of the automobile. In addition to this ruling, the trial court commented that if appellant would have brought a redhibitory action instead, he could have possibly been successful.

In his specification of errors, the appellant cites the comment of the trial court referring to the redhibitory action and contends that the trial court was confused in its initial ruling. In addition, he contends that the trial court erred in refusing to grant a new trial since the judgment was contrary to the evidence.

In regards to the first assignment of error, the trial court first made the determination that there was no tortious conversion in this case. In a passing comment the trial judge stated that appellant could possibly have been successful if he would have brought a redhibitory action. There has been no showing that the trial court was confused in any way when it made the determination concerning the action for tor-tious conversion. Therefore, appellant’s first contention is without merit.

In regards to the conversion action and the second specification of error, the case of Deshotels v. Statewide Trailer Sales, 333 So.2d 259 (La.App. 1st Cir. 1976) expresses the law as it relates to this common law doctrine. As the Court explains:

“Conversion has been defined as ‘a distinct act of dominion wrongfully exerted over another’s property in denial of or inconsistent with the owner’s rights therein.’ Lincecum, [287 So.2d 625] supra, and authorities cited therein. “Furthermore, it is the act itself, rather than the intentionally or negligently wrongful manner thereof, that constitutes the conversion. Our brothers of the Third Circuit in Lincecum, supra, cited with approval on this point Prosser’s Handbook of the Law of Torts 83-4 (3rd Ed. 1964), and we do likewise:
The intent required is not necessarily a matter of conscious wrongdoing. It is rather an intent to exercise a dominion or control over the goods which is in fact inconsistent with the plaintiff’s rights ... Persons ... exercise acts of ownership over them at their peril, and must take the risk that there is no lawful justification for their acts.” Deshotels, supra, pages 260-261.

The trial court found as a matter of fact that there was no conversion. On appeal this decision must be given great weight and cannot be reversed unless it is manifestly erroneous. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

The evidence was conflicting but a finding that there was no conversion by appel-lee of appellant’s property is supported by reasonably credible evidence. Plaintiff voluntarily brought his car to appellee’s place of business on numerous occasions. Though not fixed, appellant could have removed the vehicle from appellee’s premises at anytime. We therefore find no manifest error in the trial court’s decision.

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

AFFIRMED.