text:
    MIKE’S SERVICE STATION SUPPLY, INC. v. Daniel E. THIELE, d/b/a Danny’s Automotive Repair.
    No. 11321.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 12, 1980.
    Rehearing Denied Dec. 19, 1980.
    Writ Refused Feb. 13, 1981.
    Richard A. Najolia, New Orleans, for plaintiff-appellee.
    Richard B. Stricks, New Orleans, for defendant-appellant.
    Before SAMUEL, GARRISON and CHE-HARDY, JJ.
   CHEHARDY, Judge.

Defendant, Daniel E. Thiele, appeals a trial court decision granting judgment against him and in favor of the plaintiff, Mike’s Service Station Supply, Inc. (Mike’s), in the amount of $386.09 together with legal interest from the date of judicial demand and for all costs of the proceedings for purchases allegedly made by the defendant from Mike’s.

The defendant in this case had been doing business with the plaintiff as an individual under the business name of Danny’s Automotive Repair for a number of years prior to his incorporation of the establishment under the name of Danny’s, Inc. (Danny’s), in October of 1975. In 1976 the corporation ceased to operate, leaving an unpaid balance on the account in suit.

At the trial the plaintiff introduced invoices of purchases made by the defendant (or Danny’s) and all signed by Thiele or his employees at the time of the sales, thereby establishing the unpaid indebtedness to Mike’s. All evidence introduced concerned purchases made after the date of Danny’s incorporation.

Defendant introduced a copy of the articles of incorporation of Danny’s, Inc., a certificate of incorporation signed by the Secretary of State of Louisiana, and checks printed “Danny’s, Inc.” Thiele also produced photographs showing that a large sign in front of his business establishment read “Danny’s, Inc.”, and that his employees were issued new uniforms at the time of the incorporation which bore the insignia “Danny’s, Inc.” Stationery, a check stamp and a citizens band radio license-all in the name of Danny’s Inc.-were also introduced by the defendant.

Plaintiff, on the other hand, demonstrated Thiele’s account at Mike’s had not been changed from “Danny’s Automotive Repair” to “Danny’s, Inc.” and also produced two checks written by the defendant to Mike’s, after the 1975 date of incorporation, which still bore the name “Danny’s Automotive and Truck Service”; however, these checks were embossed with the Danny’s, Inc. check stamp. We also note, and consider as most important, that all of the bills in suit were addressed to the defendant individually (in his business name as, for example, “Danny’s Auto Repair”, “Danny’s Automotive”, etc.) and receipt of the goods sold was acknowledged on each bill by the defendant or one of his employees.

Michael Martinolich, Jr., president and owner of Mike’s, also testified he was not personally aware of the change of Danny’s to an incorporated status until after the business closed, in spite of the fact that he had visited Danny’s personally during the period alleged in his petition.

It was also established in the trial court that Thiele had made two payments to Mike’s since the closing of the business from his own personal funds: one in the amount of $75 on January 27, 1977; and another in the amount of $35 on December 4, 1978.

Since we find that plaintiff was never adequately noticed of the change in Daniel E. Thiele’s business from that of an individual to a corporate operation and that all of the credit in suit was extended to the defendant as an individual and not to the corporation, we need not address the question of whether or not the corporate veil should be pierced.

However, we affirm the judgment of the trial court on the basis that plaintiff was misled into believing he was continuing to deal with Thiele as an individual and not Danny’s, Inc., a corporation.

In the case of General Electric Company v. Ponder, 234 So.2d 786 (La.App. 1st Cir. 1970), the court concluded the preponderance of the evidence in that case indicated the plaintiff did not know it was dealing with the corporation rather than the defendant personally and, therefore, held the defendant personally liable for purchases made on an open account.

Similarly, in the case of McCulley v. Dublin Construction Co., 234 So.2d 257 (La.App. 4th Cir. 1970), this court also held that stockholders in a corporation who acted in their individual capacities, rather than as officers of a corporation, in making a purchase were individually liable for the cost of that purchase.

Conversely, in the case of Webster v. Rushing, 316 So.2d 111 (La.1975), the Court held where the evidence was clear that the defendant- contracted with plaintiff only in his capacity as president of the corporation and never led the plaintiff to believe that he intended to become personally bound for the obligation, the corporate president was not personally bound in solido with the corporation on the contract.

In the present case, as in General Electric Company, supra, the plaintiff had made pri- or sales to the defendant, personally, rather than the corporation, and the defendant could produce no communications informing the plaintiff that after the incorporation of Danny’s, Inc., the defendant would no longer be making purchases in his individual capacity but only as a representative of the corporation. The conclusion that the plaintiff was misled was also substantiated by his own testimony and his business records showing Thiele’s account had never been changed to the corporate name.

Moreover, the defendant could produce no evidence of his having actually informed Mike’s of Danny’s new corporate status.

For the foregoing reasons the judgment appealed from is affirmed.

AFFIRMED.


source: Caselaw Access Project

author: CHEHARDY, Judge.

license: Public Domain

text:
    Margaret Newport, wife of/and Robert J. SHIRER v. TREADAWAY HOMES, INC.
    No. 11353.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 12, 1980.
    Rehearing Denied Dec. 19, 1980.
    Writ Refused Feb. 13, 1981.
    Philip S. Brooks, Bruce M. Danner, New Orleans, for plaintiffs-appellees.
    Roy L. Price, Metairie, for defendant-appellant.
    Before SAMUEL, GARRISON and CHE-HARDY, JJ.
   CHEHARDY, Judge.

Defendant, Treadaway Homes, Inc., appeals a trial court judgment in favor of the plaintiffs, Margaret Newport, wife of/and Robert J. Shirer, directing that there be specific performance of the contract entered into between the parties on February 1, 1978.

The judgment further ordered:

“ * * * [T]hat the contract be completed in accordance with the plans and specifications as revised June 1978 including changes as noted thereon by Petitioners and extras as set out in letter of June 27, 1978 addressed Petitioner, ROBERT SHIRER, by Defendant, TREADAWAY HOMES, INC., identified as Exhibit P-11 of this record, with the exception as to type of brick, roof shingles, woodwork in den, breakfast room, kitchen and laundry which are to remain as is. Selection of paint, carpeting, floor covering, kitchen cabinets and counter tops, bathroom vanities, lighting fixtures, wallpaper and appliances are to be selected by Petitioners, MARGARET NEWPORT, WIFE OF/AND ROBERT SHIRER, and install-. ed by Defendant, TREADAWAY HOMES, INC.
“ * * * [That petitioners] shall within twenty (20) days of the signing of this judgment make known to Defendant, TREADAWAY HOMES, INC., their selections as heretofore set out and Defendant, TREADAWAY HOMES, INC., within ninety (90) days from the signing of this judgment shall satisfactorily complete the building * * *.
“ * * * [T]hat ninety (90) days from the signing of this judgment, Mr. Joseph Louvier shall on behalf of this Court, inspect the home as constructed * * * and certify to the Court that the property has been completed in accordance with this judgment.
“ * * * [T]hat within forty-five (45) days following certification to this Court by Mr. Joseph Louvier as to satisfactory completion of the aforesaid building an act of sale shall be made from TREADA-WAY HOMES, INC. to MARGARET NEWPORT, WIFE OF/AND ROBERT J. SHIRER, for the sum of ONE HUNDRED FOUR THOUSAND FOUR HUNDRED AND NO/100 ($104,400.00) DOLLARS less credit for deposit of THREE THOUSAND AND NO/100 ($3,000.00) DOLLARS.”

The judgment further awarded petitioners attorney fees in the amount of $2,000, expert fees for Joseph Louvier in the amount of $750 and cast the defendant for all costs of the proceedings.

The “agreement to purchase or sell” entered into by the parties stated in part:

“I/We offer and agree to purchase building as per plans and specifications located on # 25 square # 4 facing Tolmas Drive. Plans and specifications subject to approval of Robert Shirer, copy thereof init-ialled by Robert Shirer and Mark Treada-way. On grounds measuring about 60 X 100 or as per title. Property sold and purchased subject to all title and zoning restrictions on record, or by laws or ordinances for the sum of One hundred four thousand four hundred dollars (no cents[)] ($104,400.00) Dollars, on the terms of [$]64,400.00 cash Balance subject to conventional loan.
“Act of sale at expense of purchaser to be passed before Lender’s Notary, at any time after August 1, 1978 and prior to August 15, 1978 in the event bona fide curative work in connection with title is required, the parties herewith agree to and do extend the time for passing of act of sale by 45 days.
“Upon acceptance of this offer, vendor and purchaser shall be bound by all its terms and conditions and purchaser becomes obligated to deposit with seller’s agent immediately of the purchase price amounting to $3,000.00, and failure to do so shall not void this agreement but shall be considered as a breach thereof and seller shall have the right at his option, to demand liquidated damages equal to the amount of the deposit or specific performance, and purchaser shall in either event be liable for agent’s commission, attorney’s fees and costs.
* * # * * *
“Either party hereto who fails, for any reason whatsoever, to comply with the terms of this offer, if accepted, is obligated and agrees to pay the agent’s commission and all reasonable attorney’s fees and costs incurred by the other party, and/or agent in enforcing their respective rights.”

Defendants argue that the contract to buy and sell lacked a “certain object” as required by LSA-C.C. art. 1779 because the plans and specifications were never agreed on between the parties. They also argue error as to the subject matter of the contract itself or error bearing on some substantial quality of the thing sufficient to invalidate the contract under the terms of LSA-C.C. arts. 1823 and 1842.

We cannot agree and hold that the district court judgment is correct.

The record reveals that Mark Treadaway, field superintendent for Treadaway Homes, Inc., received a sketch from the Shirers from which he drafted a set of plans and presented them to the plaintiffs on February 1, 1978. Between February and June there were a number of changes or corrections made on the original plans by the plaintiffs, necessitating the drawing of a new set of plans by Treadaway on June 21, 1978, as requested by Edwin J. Treadaway, owner and secretary of Treadaway Homes, Inc.

Mrs. Shirer testified from a diary she kept that the pilings on the home were driven on March 24, 1978; the slab was poured on May 25, 1978; and on July 31, 1978 the framing of the house was begun.

Edwin Treadaway testified that due to the number of changes made by the plaintiffs, as well as Mr. Shirer’s interference with construction crews, he verbally terminated the contract with Mr. Shirer in September of 1978. The plaintiffs then filed suit asking for specific performance, architectural supervision of construction, and attorney fees.

Although it was established in the record that numerous changes were made on the original plans by the plaintiffs, it was the opinion of a general contracting expert that the changes made by the plaintiffs were not substantial ones; that it was customary for these types of changes to occur during the course of construction of a custom house; and that they would not have prevented the construction of the home in any way. He further testified that after the slab was poured on May 25,1978, no major plumbing changes were even possible and that there were inconsistencies between the elevation plan and the working plans drawn by Mark Treadaway, which undoubtedly led to some of the corrections insisted upon by the Shir-ers. The expert also estimated that, considering the building conditions during the contract period, the normal length of time needed to complete the subject house would have been six months.

The case of Laborde v. Aymond, 172 La. 905, 135 So. 913 (La.1931), cited by defendant, is distinguishable from the situation presented here. In that case, there was no denial on the plaintiff’s part that the building occupied by the defendant was wholly different in type and size from the building described in the contract sued on, leading the court to conclude that because there was no agreement there could have been no contract.

The law and jurisprudence surrounding error sufficient to vitiate a contract was fully discussed in Hartsell v. Pipes Auto Shop, Inc., 318 So.2d 627 (La.App. 2d Cir. 1975); however, we can find no evidence of error as to the principal cause for making the contract or the subject matter of the contract itself, LSA-C.C. art. 1823; nor can we find evidence of error regarding some substantial quality of the object, LSA-C.C. art. 1842. The record is equally devoid of proof that either of the parties made an error as to substance or the object having been of a totally different nature from that which was intended, LSA-C.C. art. 1843.

We find, rather, the changes made by the plaintiffs were minor and, generally, within that sort contemplated by the parties at the time the agreement was signed. Furthermore, many of the corrections or changes were due to mistakes made in the drafting of the plans by defendant’s agent.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.


text:
    Richard J. GANUCHEAU v. William F. GILLEN, Jr.
    No. 11356.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 12, 1980.
    Reed & Reed, Bruce G. Reed, New Orleans, for William F. Gillen, Jr., third-party plaintiff-appellee.
    Kiefer, Glorioso & Fleming, Anthony L. Glorioso, New Orleans, for Edmond T. Rivas, third-party defendant-appellant.
    Before SAMUEL, GARRISON and CHE-HARDY, JJ.
   CHEHARDY, Judge.

Third party defendant, Edmond T. Rivas, appeals a summary judgment of May 24, 1979, in favor of defendant, William F. Gil-len, Jr., and against Rivas in the amount of $1,998.20, together with interest from date of judicial demand and court costs. The judgment also was rendered in favor of plaintiff, Richard J. Ganucheau, and against defendant, William F. Gillen, Jr., for the sum of $1,998.20, together with interest from the date of judicial demand and court costs; however, that portion of the decision has not been appealed.

It was uncontroverted that in December of 1977 plaintiff contracted with Gillen to do certain renovations on two residences owned by Ganucheau on the terms of reimbursements for all costs, expenses for material and labor, plus a 20% additional charge for overhead profit and insurance. In response to statements presented to the plaintiff for labor, materials and subcontracted work, plaintiff made payments to Gillen in the form of checks drawn to the order of French Quarter Restoration and Development Co., a company which was actually a partnership of Gillen and Rivas. Among other bills presented to the plaintiff by Gillen were invoices from George Kellet & Sons, Inc. (Kellet). In January of 1978 the plaintiff was notified by Kellet that it had placed a lien on his two residences for unpaid bills in the amounts of $1,808.20 and $190, and Ganucheau then filed suit against Gillen. Gillen conceded in his deposition the monies paid to him by Ganucheau had been deposited in the French Quarter account and used to pay overdue debts of the partnership, rather than the Kellet invoices.

Ganucheau filed suit against Gillen on January 31, 1978. Gillen, on March 15, 1978, filed an answer and a third party plaintiff suit against Rivas as third party defendant, his partner in the entity known as French Quarter Restoration and Development Co.

Subsequently in the matter of William F. Gillen, Jr. v. Edmond T. Rivas, No. 78-766 on the docket of the Civil District Court for the Parish of Orleans, a consent judgment was signed by Rivas, Ganucheau, Gillen and Gillen’s attorney, which, in part, provided:

“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the partnership known as French Quarter Restoration and Development [Co.] is hereby dissolved nunc pro tunc as of the date, March 30,1978, and the defendant herein, Edmond T. Rivas, is to assume all assets, rights, and liabilities of said partnership, and said defendant, Edmond T. Rivas, is to hold harmless and indemnify plaintiff, William F. Gillen, Jr., from any and all claims arriving out of the operation of said partnership, and that the main demand in these proceedings be, and the same is hereby dismissed with prejudice.”

Gillen filed a motion for summary judgment based on the above consent judgment. In giving his reasons for the summary judgment granted in favor of Ganucheau and Gillen, the trial judge stated:

“The Court after considering the affidavits attached thereto is of the opinion that the Summary Judgment should be granted herein on behalf of Mr. Ganu-cheau against Mr. Gillen.
“Considering the nature of the affidavit filed herein by Mr. Gillen on the Third-Party Petition and the attached certified copy of the consent judgment entered into by Mr. Edmund [sic] T. Rivas in Case No. 78-766 dated February 21, 1979, the Court concludes that this was a partnership debt owed by Mr. Gillen and that under the agreement Mr. Rivas assumes the partnership liability, therefore, Summary Judgment is hereby granted to Mr. Gillen against Mr. Rivas.”

Since the only issue before this court is the May 24, 1979 judgment of the trial court in favor of defendant, William F. Gillen, Jr., and against Edmond T. Rivas in the amount of $1,998.20, and Rivas in the February 21, 1979 consent judgment agreed to assume all assets, rights and liabilities of the partnership and to hold harmless and indemnify Gillen from any and all claims arising out of the operation of the said partnership and that portion of the judgment finding Gillen indebted to Ganucheau in the amount of $1,988.20 has not been appealed, the judgment decreeing Rivas must indemnify Gillen for the entire amount owed by the partnership will not be disturbed by this court. We do not find any material issue of fact still to be resolved.

Accordingly, the district court judgment is affirmed in all respects.

AFFIRMED.


author: BARRY, Judge. REDMANN, Judge, GULOTTA, Judge,

text:
    Marion L. Plaisance, wife of/and Jacob PLAISANCE v. Levi A. LLOYD and Travelers Insurance Company.
    No. 11311.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 12, 1980.
    Rehearing Denied Dec. 19, 1980.
    Writ Refused Feb. 13, 1981.

      John H. Brooks, Gretna, for plaintiff-ap-pellee.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, R. Henry Sarpy, Jr., New Orleans, for defendants-appellants.
    Before REDMANN, GULOTTA and BARRY, JJ.
   BARRY, Judge.

The sole question on this appeal is the excessiveness of a $73,000.00 general damage award for pain and suffering. The $1,488.21 special damage award for medical expenses is not in dispute.

Mrs. Marion L. Plaisance sustained a back injury on November 10, 1975 when her automobile was rear ended by a vehicle driven by the defendant.

The evidence relating to the injuries sustained by Mrs. Plaisance consists of her testimony, together with that of her husband, the medical testimony of Dr. William Bagnetto, a general practitioner, and Dr. Jack L. Winters, an orthopedic surgeon. Records of Mrs. Plaisance’s hospitalization on occasions prior to the accident were offered over plaintiff’s objection, and a record of hospitalization subsequent to the accident is of little, if any, value in determination of the quantum question.

On November 11, 1975, the day following the accident, plaintiff saw Dr. Bagnetto. Her complaints at that time were pain in the lower back, headache, neck pains, and dizziness. The doctor’s diagnosis after examination was sprain of neck and lower back. Medication and muscle relaxants were prescribed. On November 18th diathermy treatment was administered. According to Dr. Bagnetto, on plaintiff’s last visit on December 16, 1975 she complained of continued pain in the lower back, however, her neck pain was subsiding. The doctor concluded that Mrs. Plaisance had suffered a cervical and lumbar strain which he described as a “whiplash” injury.

Mrs. Plaisance, forty years of age at the time of the accident, saw Dr. Jack L. Winters, on January 19, 1976. Her complaints at that time were neck pain, headaches and pain in the lower back. Muscle relaxants and pain pills were prescribed. Although examination at that time revealed no spasms, tenderness was discerned at the base of the neck. No neurological abnormalities were seen. X-rays taken on November 11, 1975 by Dr. Bagnetto, and additional X-rays taken by Dr. Winters on the January 19th visit, indicated presence of very mild lumbosacral intervertebral disc degeneration. Subsequent to the initial visit plaintiff was seen by Dr. Winters at approximately one month intervals, during which time she continued with anti-inflammatory medication and restrictions on physical activities. In June 1976 a lumbosacral disc support was prescribed. Dr. Winters’ notes at the time of the June 1976 visit indicated pain in the lumbar region was more intense than initially. Continued complaints of lower back pain were made by plaintiff on her September 1976 and March 1977 visits. She described feeling tired and stiff in the early morning. On August 29, 1977, examination revealed continued tenderness in the lumbosacral area. Again, no neurological abnormalities were discerned. Plaintiff stated at this time that approximately ten days prior to the visit she had stepped in a hole and jarred her back and sprained her ankle.

Because of complaints that plaintiff was unable to use the lumbosacral corset, Dr. Winters advised the use of a plastic low back support corset. Due to continued complaints of pain in the lower back, restriction in low back movement, and pain in both legs, a myelogram and electromyelogram study of the back and lower extremities were recommended. The myelographic study was accomplished on October 19,1977 and indicated the possibility of irritation of the fifth lumbar nerve root. On November 2nd, during a three day visit at West Jefferson Hospital a myelogram was performed. According to Dr. Winters, the electromyelogram study indicated some defect in the nerve supplies to the muscles, probably the result of a degenerative disc. He stated it was difficult to ascertain how much of the problem- relates to the trauma and how much relates to disc degeneration. The implication from the myelogram was that, while a degenerative disc and nerve root irritation were discerned, the disc was not protruding into the spinal canal.

After discharge from West Jefferson Hospital on November 5,1977, plaintiff was again seen on November 22, 1977. At that time she continued to complain of pain in both legs, but of greater degree in the left leg. She exhibited considerably more tenderness in the lower back. Between December 12, 1977 and December 11, 1978, plaintiff was seen by Dr. Winters on approximately six occasions. During this period of time, despite self-restricted movement, she continued to have pain in the lower back and legs. Examinations indicated continued decreased range of motion in the back. Plaintiff was advised not to engage in any strenuous physical activity or lift any weight in excess of 20 pounds.

Dr. Winters’ findings were that Mrs. Plai-sance was suffering from a degenerative intervertebral disc in the back involving considerable nerve root irritation. He was of the opinion that she did not have a herniated disc. According to Dr. Winters, though the accident could not have caused the degenerative disc, it did aggravate her condition. His prognosis was as follows:

“I think it is very likely her symptoms will continue for an indefinite period as they are now, that is, they continue to come and go. I think it is unlikely but possible that she may have significant trouble and may have an operation in the future. I think that is unlikely. Most degenerative discs do not herniate and so I suspect it is unlikely that she will require surgery in the future. It is also possible on the other side of the coin that she might simply improve as time goes along. The reason for that is that as the disc degenerates and there is restriction the symptoms can be relieved. I think, however, it is most medically probable that her symptoms will continue unchanged for an indefinite period of time.”

In answer to specific questions, Dr. Winters indicated that intermittent back pain and restriction of activity could encompass a number of years and perhaps “the rest of her life”. He stated that plaintiff would have periods where she would experience no pain at all, with more periods of discomfort and some periods of pain that require medication and bed rest.

Finally, Dr. Winters indicated that he found no muscle spasms on examination, the disc degeneration was very mild and even without the accident, it was likely that some time in plaintiff’s life she would have developed difficulty. When pressed to classify plaintiff’s pain, he described it as “mild to moderate”.

Mrs. Plaisance testified that prior to the accident she did not have any back pain and was able to work a full day in her florist shop without restriction. She had no problem with housework or recreational physical activities. She stated that immediately after the accident she began to suffer severe headaches, and on the following day commenced to suffer with back and leg pain. She has been under treatment from the time of the accident to the date of trial on January 24, 1979. According to Mrs. Plai-sance, before the myelogram was taken she suffered pain “about three time a week”. She classified her pain as more severe after the myelogram. Finally, Mrs. Plaisance described the eleetromyelogram and myelo-gram tests as very painful.

During the course of the trial and in oral reasons for the award the trial judge said he was favorably impressed with the honesty and demeanor of Mrs. Plaisance. His accurate summation of the injury and the course of treatment is supported by the record. Furthermore, his observation that pain suffered by Mrs. Plaisance could continue for an indefinite period was also consistent with Dr. Winters’ testimony.

Following the difficult guidelines of Beck v. Stevens, 373 So.2d 498 (La.1979), we have considered the “individual circumstances” of the instant case and “after analysis of the facts and circumstances peculiar” to our case, we have no alternative but to conclude that the trial court award is not excessive and not an abuse of the trial court’s discretion.

Accordingly, the judgment of the District Court is affirmed with costs of this appeal to be paid by defendants.

AFFIRMED.

REDMANN, J., concurs with written reasons.

GULOTTA, J., dissents with written reasons.

REDMANN, Judge,

concurring.

This case is one of mild to moderate pain experienced from time to time. There is no contradictory medical or lay testimony, and there is no credibility call. Accepting all the evidence, this writer would have awarded only a fraction of the $73,000 general damages that the trial judge awarded. The trial judge, however, has “much discretion.” C.C. 1934(3). This writer cannot “articulate” any abuse of that discretion as required by Reck v. Stevens, La.1979, 373 So.2d 498, and, with respect, has not seen in any opinion any rational explanation of why a given number of dollars is too much or too little for some never completely describable nor verifiable suffering. I therefore concur in affirming the award.

GULOTTA, Judge,

dissenting.

I respectfully dissent.

The well articulated reasons of the lead opinion in this case support the claim that the $73,000.00 general damage award is excessive. The constitutional authority of this court for review of law and fact mandates a reduction in quantum where the judge or jury abuses its discretion when granting an excessive award. My evaluation of the medical and lay evidence, considered in its most favorable light, clearly does not support a $73,000.00 general damage award, which absent any showing of loss of earnings, constitutes a clear abuse of the trial court’s discretion. See Reck v. Stevens, 373 So.2d 498 (La.1979).

It is most difficult to articulate how an appellate judge, confronted with an award so high or low is convinced, without equivocation, that the award is out of the ball park for injuries suffered as to constitute an abuse of the trial court’s discretion. Necessarily, one’s subjective evaluation of quantum comes into existence. Nonetheless, my evaluation of the award reduced to its highest limit, in our case is $20,000.00. This evaluation is supported by consideration of awards in cases similar to the instant one.

Accordingly, I would reduce the general damage award from $73,000.00 to $20,-000.00.

      . The general damage award did not include any amount for loss of earnings. Furthermore, there is no evidence indicating any loss of earnings.

      . Plaintiff described the impact as “pretty hard”. Defendant describes the accident as one where there was not “a whole lot of impact”. He described the damage to plaintiff’s car as a “little dent on the back of the car and a bent fender”. Damage to defendant’s car consisted of a “little hole in the grille work and a little dent where the hood latch is”.

      . Plaintiff was seen on 12/12/77, 1/23/78, 5/2/78, 6/19/78, 9/14/78, and 12/11/78.

      . See Perniciaro v. Brinch, 384 So.2d 392 (La.1980); Clements v. Allstate Ins. Co., 383 So.2d 1375 (La.App. 4th Cir. 1980), writ denied (La.) 385 So.2d 793; Francis v. Government Emp. Ins. Co., 376 So.2d 609 (La.App. 4th Cir. 1979), writ refused 378 So.2d 1391 (1980); Pitre v. Bourgeois, 371 So.2d 330 (La.App. 4th Cir. 1979), writ denied (La.) 374 So.2d 657; Potts v. Hollier, 344 So.2d 70 (La.App. 4th Cir. 1977); Duvic v. Baton Rouge Lumber Co., 385 So.2d 464 (La.App. 1st. Cir. 1980); Engolia v. Cumis Ins. Soc., Inc., 383 So.2d 1055 (La.App. 1st Cir. 1980); Hutchinson v. Woolworth, 345 So.2d 88 (La.App. 1st Cir. 1977); Grasso v. Hebert, 342 So.2d 1178 (La.App. 1st Cir. 1977); Stewart v. Nat. Food Stores of La., Inc., 341 So.2d 1177 (La.App. 1st Cir. 1976), writ refused (La.) 343 So.2d 1073 (1977); Boatner v. McCrory Corp., 341 So.2d 1174 (La.App. 1st Cir. 1977), writs refused (La.) 343 So.2d 1075 & (La.) 343 So.2d 1078; Perry v. Domingue, 383 So.2d 130 (La. App. 3rd Cir. 1980); Launey v. Thomas, 379 So.2d 27 (La.App. 3rd Cir. 1980), writ denied (La.) 381 So.2d 1233.


author: BARRY, Judge.

text:
    AMERICAN GENERAL INVESTMENT CORPORATION v. ST. ELMO LANDS et al. AMERICAN GENERAL INVESTMENT CORPORATION v. ST. ELMO LANDS et al.
    Nos. 11332, 11333.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 12, 1980.
    Rehearing Denied Dec. 19, 1980.
    Liskow & Lewis, Edward J. Gay, III, New Orleans, for St. Elmo Lands.
    Thomas J. Kliebert, Gramercy, for American General Inv. Corp.

      Francipane, Regan & St. Peé, Chester Francipane and Richard T. Regan, Metairie, in pro. per.
    Before REDMANN, GULOTTA and BARRY, JJ.
   BARRY, Judge.

Plaintiff, American General Investment Corporation (American General) owned three promissory notes secured by mortgages executed by defendant, St. Elmo Lands (St. Elmo) on properties in St. James Parish. St. Elmo defaulted on the notes and American General filed two lawsuits, one via executiva and the other via ordinaria, for unpaid principal and interest of $2,272,-000.00, plus costs and attorney’s fees of 10% as stipulated in the notes.

A writ of seizure and sale was issued pursuant to the executory process and notice of seizure was recorded in the mortgage records of St. James Parish.

Prior to any further legal action, American General and St. Elmo began negotiating a settlement and American General directed its law firm to delay the litigation. St. Elmo, after obtaining several extensions in which to answer, advised plaintiff that it had a prospective buyer who was willing to pay a sum sufficient to satisfy American General’s claim. Plaintiff in turn notified its attorneys, Francipane, Regan and St. Peé (law firm) to suspend the litigation, including the executory proceedings.

The law firm became concerned that their client might not pay the legal fees stipulated in the note, so on July 12, 1979 it executed and recorded' an affidavit asserting a privilege on the property. On October 9, 1979 American General terminated the law firm and instructed it to withdraw as counsel of record and to forward its file to new counsel.

Defendant’s prospective buyer, Coral Petroleum, Inc. (Coral), made an offer of approximately $2,800,000.00 which was accepted by St. Elmo and concurred in by American General and the sale was executed on September 18, 1979. The proceeds were more than sufficient to satisfy all principal, interest, attorney’s fees and costs. In order to make the intentions of all three parties (American General, St. Elmo and Coral) clear, and to protect Coral’s title, a Mutual Receipt, Release, Compromise and Settlement Agreement was executed between plaintiff, defendant and Coral on October 25, 1979. This document reflected St. Elmo’s intent to pay in full the mortgage notes and costs, and acknowledged that a dispute existed between the law firm and St. Elmo on the amount of legal fees owed. The agreement provided that St. Elmo would indemnify American General on all claims by the law firm and $300,000.00 was placed in escrow pending a determination of the amount of attorney’s fees. Two mortgage releases were recorded the same day the Settlement Agreement was executed.

On October 29, 1979 the law firm filed a motion for a contradictory hearing on the issue of its fees. On November 5, 1979 two additional motions were filed: (1) a joint motion by American General and St. Elmo to dismiss with prejudice the pending foreclosures; and (2) a motion by the law firm to intervene as a party plaintiff in the pending foreclosures.

On November 9,1979 the law firm filed a plea of estoppel asserting American General and St. Elmo should be estopped from dismissing the lawsuits because the litigation created a stipulation pour autrui in their favor.

After a hearing on the motions the District Court rendered the following judgment:

“. .. the motion of the law firm of Fran-cipane, Regan and St. Peé to join as a party plaintiff is hereby granted only insofar as it allows the said law firm to prove its right to and the extent of the attorney’s fees it is entitled to receive from American General Investment Corporation and/or St. Elmo Lands for services rendered.”
“. . . the motion of American General Investment Corporation and St. Elmo Lands to dismiss these lawsuits is hereby granted, except to the extent that the law firm of Francipane, Regan and St. Peé shall be allowed in these proceedings to prove its right to and the extent of the attorney’s fees it is entitled to receive from American General Investment Corporation and/or St. Elmo Lands for services rendered, the court specifically retaining jurisdiction to determine such issue upon the filing of a proper motion thereon.”
“. . . the sheriff of St. James Parish is hereby stayed from proceeding with the judicial sale of the property as ordered by this Court in suit number 12,544” (execu-tory process).
“. .. the mortgages granted to secure payment of the promissory notes sued upon in these lawsuits are hereby ordered cancelled.”

The law firm appeals that portion of the judgment which ordered the mortgages cancelled. American General and St. Elmo answered the appeal asserting that the judge erred in retaining jurisdiction to determine the legal fees and in failing to unconditionally dismiss the suit and deny the law firm’s attempt to join as party plaintiff.

The law firm seeks recognition of the existence of a stipulation pour autrui (itself being the third party beneficiary) created by the attorney’s fee provision in the note, contending it acquired a privilege which was secured by the mortgage itself. Appellant relies on LSA-R.S. 9:5001 (privilege for attorney’s fees) and LSA-R.S. 37:218 (contingency fee contracts) asserting that a special privilege for attorney’s fees supports its position.

In Saucier v. Hayes Dairy Products, Inc., 373 So.2d 102 (La.1979) the Supreme Court pronounced limitations on the course an attorney may properly pursue to collect his fee after discharge by a client. The Court looked to the Code of Professional Responsibility of the Louisiana State Bar Association for guidance and stated that its Disciplinary Rules are recognized as having the force and effect of substantive law. Saucier, supra, at pp. 115.

DR 5-103 provides in pertinent part:

“(A) A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation he is conducting for a client, except that he may:
(1) Acquire a lien granted by law to secure his fee or expenses.
(2) Contract with a client for a reasonable contingent fee is a civil case.”

The above rule does not create an exception against acquiring a proprietary interest. Scott v. Kemper Ins. Co., 377 So.2d 66 (La.1979) clarified the prohibition against asserting a proprietary interest in the client’s claim and specifically held:

“... an attorney can neither force his continued representation of a client who wishes to discharge him, nor obtain, by any means, a proprietary or ownership interest in the client’s claim. Therefore, he may not proceed with the suit or claim as if settlement had not been made. And he has no right to interfere with or nullify the settlement which his former client has made ... or chooses to make.” at pp. 70 (emphasis added)

The attorney in Scott, supra, relied entirely on his contingency fee rights; however, we feel the conflict of interest which Scott seeks to prevent is equally apparent when an attorney seeks to justify an equity interest as a result of the lien provided in LSA-R.S. 9:5001.

The law firm cites Jefferson Bank and Trust Company v. Post, 312 So. 907 (La.App. 4th Cir. 1975). There the attorney completed the executory process through seizure and sale, forwarded the full amount of principal and interest to its client, and retained 25% attorney’s fees as provided in the note. We held that an attorney’s fee becomes due and payable whenever the obligation provided for in a note is not paid and the note is placed with an attorney for collection. Post did not involve an attempt to interfere with a client’s settlement nor did the attorney attempt to become a party plaintiff while refusing to withdraw as directed.

Other cases cited by the firm are no less distinguishable. In Foundation Finance Co. v. Robbins, 153 So. 833 (La.1934) the question was whether the obligation in a promissory note was enforceable because of a stipulation in the note that after default the maker would be liable for 25% attorney’s fees in addition to the maximum rate of interest. The court stated in dicta that no one is entitled to attorney’s fees unless licensed to practice law. This principle is not applicable here because American General has not been paid attorney’s fees. Funds are in escrow pending a determination of the amount owed. It is unquestioned that after the law firm has been paid any remaining funds belong to St. Elmo.

W. K. Henderson Iron Wks. & S. Co. v. Meriweather S. Co., 152 So. 69 (La.1934) held that a stipulated attorney’s fee becomes liquidated damages when the note is not paid regardless of the extent or value of the legal services. Henderson is not authority for an attorney to attempt collection of his fee directly against the debtor, especially where it could cause delay or detriment to his client’s claim.

Finally, the law firm cites International Harvester Credit Corp. v. McGill, 297 So.2d 272 (La.App. 3rd Cir. 1974). A quotation from the concluding paragraph explains why that case is inapplicable here:

“We agree with the trial court’s conclusion that payee is entitled to enforce the specific provision . . . for attorney’s fees ...” International Harvester, at pp. 276. (emphasis added)

Thus, we feel it is clear that provision for attorney’s fees in a mortgage note is a valid and enforceable obligation in favor of the payee. This does not create any right or cause of action in favor of the payee’s attorney to intervene or interfere with the client’s litigation.

In Saucier, supra, the court said a lawyer must withdraw from a case when discharged, with or without cause, and if the fee originally contracted for is excessive for the amount of work performed, the attorney must accept some lesser, more appropriate fee.

The law firm’s refusal to withdraw was in violation of Disciplinary Rule 2-110:

D.R. 2-110-Withdrawal from Employment
(B) Mandatory Withdrawal-A lawyer representing a client before a tribunal, with its permission if required by its rules, shall withdraw from employment, and a lawyer representing a client in other matters shall withdraw from employment if:
(4) He is discharged by his client.”

The record establishes that the law firm was discharged and directed to withdraw long before the joint motion to dismiss was filed.

LSA-C.C.P. Art. 1671 provides that a judgment dismissing an action shall be rendered upon application of the plaintiff and upon payment of all costs. If application is made prior to a general appearance by the defendant the action shall be dismissed without prejudice; however, if application is made after a general appearance the court may refuse to grant the judgment of dismissal except with prejudice. The Code clearly vests the plaintiff with the right to dismiss a lawsuit. The joint motion to dismiss specifically providing that each party would bear his own costs should have been granted. The law firm’s assertion that the right to dismiss is qualified by its right to proceed against the defendant for recognition and payment of legal fees is clearly wrong. The trial judge committed manifest error in retaining jurisdiction once the joint motion to dismiss was filed.

This appeal does not involve the right of Francipane, Regan and St. Peé to a legal fee for their services to American General. We do conclude that they have pursued improper means in attempting recognition and payment. American General and St. Elmo acted prudently to insure that the law firm is protected and paid in an amount which can be determined amicably or by adversary proceedings. In its motion for a new trial the law firm stated it does not claim a proprietary interest in its client’s cause of action, but rather a right to a separate cause of action. We hold it had no legal right to join as party plaintiff in its client’s action.

Accordingly, that portion of the judgment failing to dismiss this action and retaining jurisdiction for any purpose is reversed; the motion to dismiss with prejudice is hereby granted. That portion of the judgment providing for full cancellation of the two mortgages is affirmed. Costs of this appeal are to be paid by appellant.

REVERSED IN PART, AFFIRMED IN PART, RENDERED.


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    LaSALLE PROPERTIES, INC. v. LOUISIANA POWER & LIGHT COMPANY.
    No. 11535.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 12, 1980.
    Rehearing Denied Dec. 19, 1980.
    Writ Refused Feb. 13, 1981.
    Steeg & O’Connor, Moise S. Steeg, Jr. and Edwin 0. Schlesinger, Heebe & Heebe, Bernhardt C. Heebe and Odom Heebe, New Orleans, for plaintiff-appellee.
    Monroe & Lemann, Andrew P. Carter, Eugene G. Taggart and J. Wayne Anderson, New Orleans, for defendant-appellant.
    Before REDMANN, GULOTTA and BARRY, JJ.
   BARRY, Judge.

This dispute arises out of an act of sale in 1952 wherein Illinois Central Railroad (ICRR) sold several parcels of land and created two servitudes. The servitudes were in favor of Louisiana Power and Light Company (LP&L) for a transmission line and to enter and cut trees and shrubs on each side of the power line. The property, situated in Jefferson Parish, was subsequently conveyed to plaintiff-appellee, La-Salle Properties, Inc. (LaSalle), a subsidiary of ICRR.

LP&L’s two servitudes cover (1) a thirty foot wide strip of land (fifteen feet on each side of the transmission line) reserved for “the construction, maintenance, repair and renewal of a power transmission line” together with (2) “the right to enter upon and cut trees and shrubs” on thirty-five feet on each side of the thirty foot center strip.

There is no dispute that LaSalle acquired title subject to the two servitudes granted to LP&L, nor that LaSalle has all of the rights reserved by the original grantor.

After describing the servitudes, paragraph (d) of the agreement states the following: “. . . reserving unto grantor, Illinois Central Railroad Company, the right to construct track or other facilities as in paragraph (i) hereof provided.”

Paragraph (i) provides:

“(i) The Grantor, Illinois Central Railroad Company, reserves unto itself the right not only to continue the presence and use of all tracks and other railroad operating facilitites now existing upon or beneath the surface of, or above, the above described premises, but also the right to install and operate additional railroad tracks and operating facilities upon and beneath the surface of and above the above described premises, and the Grant- or further reserves the right to grant to others permission to install underground pipes and conduits and other structures beneath the surface of said permises and overhead wires, cables and poles or other structures for the support thereof which may be presently or hereafter located thereon, provided that the installations aforesaid may be made without interference with the use of said permises as herein provided, and that the installations aforesaid may be made without creating a hazardous condition.”

After acquiring title in 1976, LaSalle proposed to use and develop the property subject to the servitudes; however, LP&L advised LaSalle that such action would constitute an interference and create a hazard to the operation of its transmission line.

LaSalle then filed suit seeking a declaratory judgment recognizing its right to use and develop the thirty-five foot area on each side of the thirty foot center strip servitude, and limiting LP&L’s rights thereon to cutting trees and shrubs.

LP&L reconvened for a declaratory judgment alleging that LaSalle had no right to use the land other than for the specific purposes set forth in paragraph (i), and further asked that LaSalle be ordered to remove a sewer lift station previously constructed. Plaintiff in reconvention was ordered to amend its petition to specify how the sewer lift station interfered with the servitude, but subsequently the lift station was removed rendering this issue moot.

Motions for summary judgment were filed by both sides and based upon the pleadings, exhibits, interrogatories, affidavits, and a contradictory hearing, summary judgment was rendered in favor of plaintiff LaSalle from which LP&L appeals suspen-sively.

The lower court ruled that the provisions of paragraph (i) are merely illustrative and LaSalle is free to use the property subject to the specific uses granted to LP&L. The net result is to allow LaSalle to exercise its ownership rights on the property as long as it does not interfere or create a hazard with the power line or prevent clearance of shrubs and trees on the adjacent servitude.

In his Reasons for Judgment the trial judge cites three cases which provide general rules for interpretation of servitude agreements:

McGuire v. Central Louisiana Elec. Co., Inc., 337 So.2d 1070 (La.1976) states that a conventional servitude is governed principally by the intention of the parties and quotes Art. 709 of the Louisiana Civil Code of 1870 which provides that owners of land may establish “such servitudes as they deem proper” subject to public policy limitations. The court said that in case of doubt as to the extent of the predial servitude or the manner of using it, the instrument creating the servitude should be interpreted in favor of the owner of the property to be effected.
Barnes v. Dixie Electric Membership Corporation, 323 So.2d 247 (La.App. 1st Cir. 1975) reiterates that the rights of the servitude owner must necessarily revolve around what is reasonable and necessary from the point of view of both parties. Arcuri v. Cali, 244 So.2d 309 (La.App. 4th Cir. 1971) stated that the language in servitude agreements must be construed strictly.

If the reservations in paragraph (i) are illustrative only, as determined by the lower court, then the landowner is able to use the property subject to the servitudes. However, assuming the language in paragraph (i) is restrictive it is necessary to review the entire agreement to determine the full intent of the parties. In order to interpret an instrument to determine the intent of the parties, all provisions should be given effect. Rock Island, A. & L. R. Co. v. Gournay, et al., 17 So.2d 8 (La.1943).

Paragraph (h) of the agreement provides: “The easements herein granted are limited to the uses and purposes hereinabove expressed and for no other purpose whatsoever.”

This provision restricting the grantee should be read in conjunction with paragraph (m):

“In the event that the use of the aforesaid easements across the said premises for the purposes herein expressed shall be abandoned or otherwise discontinued, the said easements shall thereupon cease and determine, and the Grantee shall surrender or cause to be surrendered to the Grantor or its successors or assigns, the peaceable possession of the above described premises, and title to said premises shall remain in the Grantor or its successors or assigns, free and clear of all rights and claims of the Grantee for the use and occupancy of said premises. Full and complete title, ownership and use of Grantor’s premises and of the portions thereof herein involved are reserved to Grantor, its successors and assigns, subject to the right, permission and authority herein expressly granted. Upon termination hereof for any reason whatsoever the Grantee hereby agrees to restore the premises of the Grantor to a like condition as at present insofar as the same may be practicable in the opinion of the duly authorized representative of the Grantor.” (emphasis added)

LP&L relies on paragraphs (d) and (i) as providing the only uses permissible to the landowner; however, paragraph (m) confirms title, ownership and use of this land to LaSalle. These provisions are contradictory if (i) is restrictive and any doubt as to usage of this predial servitude should be resolved in favor of the property owner. McGuffy v. Weil, 125 So.2d 154 (La.1960); McGuire v. Central Louisiana Elec. Co., Inc., 337 So.2d 1070 (La.1976); Lake Forest, Inc. v. Drury, 352 So.2d 305 (La.App. 4th Cir. 1977).

The provisions of LSA-C.C. Art. 730 are applicable to this conflict:

“Doubt as to the existence, extent, or manner of exercise of a predial servitude shall be resolved in favor of the servient estate.”

The effect of the District Court’s judgment is simply to allow the landowner to use its property subject to the express servitude rights of LP&L. If LaSalle’s use causes interference, creates a hazard, or impinges on the enjoyment of the servitude, then LP&L has a right to complain. That matter is not now before us.

Accordingly, the judgment of the District Court is affirmed. Costs of this appeal to be paid by appellant.

AFFIRMED.


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    Patricia H. HILDERBRAND v. William C. HILDERBRAND.
    No. 11628.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 12, 1980.
    Rehearing Denied Dec. 19, 1980.
    Writ Refused Feb. 6, 1981.
    Reed & Reed, Bruce G. Reed, J. D., New Orleans, for plaintiff-appellee.
    Dunn & Rasch, Ltd., J. Morris Dunn, III, Metairie, for defendant-appellant.

      Before REDMANN, GULOTTA and BARRY, JJ.
   BARRY, Judge.

This matter involves an initial custody determination of three minor children born during the marriage of Patricia and William Hilderbrand.

The uncontested facts show the parties were married in 1965 and began living apart in May, 1976. Following the separation the children lived with their mother until May, 1978, after which the father had custody until January, 1980. From then until trial one month later the mother had custody.

In March, 1977 Mrs. Hilderbrand filed for a legal separation alleging cruel treatment and she requested custody. The husband answered with a general denial and reconvened charging his wife with adultery and he also sought custody of the children. The wife responded to the reconvention with a general denial and supplemented her original petition by stating that the parties had lived separate for more than one year and she prayed for a divorce. A divorce was granted based upon their living separate for more than one year, but alimony was denied to the wife because she was found at fault. The lower court awarded custody to the mother subject to reasonable visitation by their father.

The father appeals the custody judgment alleging that his former wife is unfit because of an extended and open adulterous relationship. The wife answered the appeal urging that there was no abuse of discretion by the trial court.

Mr. Hilderbrand is a Commander in the Navy and his work requires that he travel to various military installations. After the Hilderbrands separated, and following an extended overseas assignment, Mr. Hilder-brand returned home for a ten day visit during October, 1977. The children stayed with him and his wife temporarily moved in with a neighbor. It was at this time that Mr. Hilderbrand was told by his children that his wife was having an affair with a man named Philip Clesi. Before returning overseas he questioned his wife about this information; specifically, he confronted her with the allegation that Clesi had spent {he night in their family home and that she and their children stayed overnight at the Clesi residence. She denied the allegation. Mr. Hilderbrand testified he admonished his wife about these accusations but did not have the opportunity to resolve the situation because he had to return to active duty.

In January, 1978 Mrs. Hilderbrand and her children moved from the family home to an apartment. In April, 1978 Mr. Hil-derbrand returned to New Orleans and the children went home for visitation with him. He found that the relationship with Clesi had continued during his absence, but his wife again denied the illicit affair. His reaction was to insist that the children live with him. A few days later the May 3rd flood occurred causing extensive damage to Mrs. Hilderbrand’s apartment. Almost simultaneously, she encountered problems at her job which she quit and apparently the aggregate of circumstances resulted in an emotional breakdown requiring hospitalization. Around June 15, 1978 Mr. Hilder-brand took the three children with him to live at his new duty station outside of the nation’s capital in Virginia.

Mr. Hilderbrand rented a five bedroom home in a residential suburb of Washington and employed a full-time housekeeper to live on the premises. Pictures of the home in evidence show it to be commodious and attractive. The children attended school three blocks from home and they participated in student activities and attended social functions and church. The housekeeper prepared meals, performed domestic chores, and took care of the children. The father went to work early on weekdays and returned each evening in time to have dinner with the children. Weekends were spent together doing a variety of things, such as going to movies and local attractions, plus brief out-of-town trips.

During the father’s custody he voluntarily paid for long distance calls between the children and their mother. He also provided money for an airline ticket to allow Mrs. Hilderbrand to visit the children. Further, the mother was permitted to use his gasoline credit card when she drove to Washington for visitation.

In January, 1980, while Mr. Hilderbrand was out of the country, his wife went to Washington and without his knowledge or approval took the children back to New Orleans to live with her. Immediately upon his return Mr. Hilderbrand filed a writ of habeas corpus which resulted in the custody hearing now before us on appeal.

At trial Mrs. Hilderbrand finally admitted that she became involved in an adulterous relationship with Clesi in 1976. She testified that she allowed her paramour to sleep in the family home five or six times while the children were present in a separate bedroom of the house. She further admitted that the children saw her in bed with Clesi on more than one occasion, but denied there was any sexual activity committed in their presence. She further testified that her oldest daughter served breakfast in bed to her and Clesi, and the three children would join them in bed to read the newspaper. These activities occurred between May, 1976 and May, 1978 at which time Clesi was legally separated but not divorced.

During the nineteen months the children lived with their father Mrs. Hilderbrand changed employment several times seeking to improve her position as a nutritionist. She traveled to Michigan and then to Baltimore where she had an opportunity to visit the children. When she returned to New Orleans she stated that she was having financial difficulty and received assistance from Clesi. Their adulterous relationship became full blown when they began living together openly. Mrs. Hilderbrand even testified that people in the neighborhood knew that they were living together, an admission that would have been difficult to prove except for her candid admission.

Each parent was complimentary of the other’s ability and desire to take care of the children. Mr. Hilderbrand earns approximately $31,000.00 per year and Mrs. Hil-derbrand’s income amounts to about $15,-000.00 per year.

In order to determine which parent is best fit to have custody under these facts, two questions should be considered:

Should the father’s military career and its required travel cause him to be unfit or less fit than the mother?
Has the mother’s adulterous relationship rendered her unfit for custody or less fit than the father?

Mr. Hilderbrand testified that after sixteen years of military service his obligation for travel now amounts to five trips a year which vary from overnight to about a week in duration, one trip requiring about three weeks. As a member of the military his base is subject to change, but he stated that future locations would allow him to take his children. The testimony shows that Mr. Hilderbrand is capable of providing good care of his children and during his brief absences they are properly cared for. A neighbor of Mr. Hilderbrand’s in Virginia testified that his housekeeper was her friend, they visited each other’s homes, and that her nine year old daughter often played with the Hilderbrand children. She substantiated the quality of the living conditions and verified Mr. Hilderbrand’s testimony concerning the children’s activities with their father. The neighbor painted an overall picture of a very settled family lifestyle. There are no allegations of misconduct attributed to the father.

Our grave concern is the adulterous relationship of Mrs. Hilderbrand with Clesi which began in 1976 and continues. Jurisprudence has expanded to a liberal attitude which now allows several acts of adultery with the same paramour without concluding that the mother is unfit and unsuited for custody. Monsour v. Monsour, 347 So.2d 203 (La.1977). However, if the parent lives in open and public adultery for a substantial period of time in disregard of moral principles of our society then she is unfit for custody. Monsour, supra. For whatever value, Mrs. Hilderbrand testified that when she took the children away from their father in January, 1980 she discontinued sleeping with Clesi. However, at the trial she admitted that they were still seeing each other and planned to be married following her divorce. Her divorce was rendered February 29, 1980 and during argument before this Court, eight months later, Mrs. Hilderbrand’s counsel stated that Clesi was still her fiance but that they were not married.

We feel the flagrant conduct of Mrs. Hilderbrand in maintaining an open adulterous relationship over a long period of time warrants and mandates a denial of custody. She did not have sex with her paramour in the presence of the children, but to have her daughter serve them breakfast in bed and have all of the children join them in bed to read the newspaper leaves very little to one’s imagination as to the mother’s conduct. We feel this conduct is not only contrary to moral standards, even under today’s concept, but is also detrimental and damaging to these three young children who are old enough to comprehend and young enough to be affected as a result.

The paramour was a witness for Mrs. Hilderbrand. Clesi testified that during the father’s absence on military duty he not only slept in the Hilderbrand home while the children were present in the house, but Mrs. Hilderbrand even took her children to Clesi’s home where they spent the night with his son. Clesi’s testimony showed that his activities in the Hilderbrand home amounted to those of a substitute father. When questioned about his openness with the mother in front of the children, his response was that he would not do anything with the Hilderbrand children that he would not do with his own son.

The record is void of any negative circumstances which could affect the children under the custody and guidance of their father. His brief absences because of required trips are negated by his devotion and the family environment he provided. Mr. Hilderbrand’s absences compared to Mrs. Hilderbrand’s lifestyle with her children are not comparable problems. The evidence shows that both parents love the children, but we feel it is clear that Mrs. Hilderbrand chose to totally disregard basic moral concepts during the two years she had the children with her. The fact that her illicit affair continued while the children lived away with their father and became open and public, is no less important. Emphasis that the mother and her lover have lived separate for the past months is insignificant because their relationship continues, however discreet.

In Beck v. Beck, 341 So.2d 580 (La. App. 2nd Cir. 1977) the mother of a seven year old boy admitted living in open concubinage for four or five months with a married man who was judicially separated. The mother said her son never saw the two undressed or having sex. She felt because her son had no knowledge of sexual matters the adulterous activity did not harm the boy. The Beck court disagreed citing Tuggle v. Tuggle, 235 So.2d 166 (La. App. 2nd Cir. 1970):

“It is within common knowledge and experience that a child learns by example, especially from his parents. Such utter disregard for moral guidance and social standards can have but ill affect on the young son.” Beck, supra, at p. 582.

In Beck the mother also urged that she redeemed herself by requiring her paramour to move out and by discontinuing sexual relations. This failed to impress the court which emphasized that: “Past misconduct forms an important consideration in determining the present suitability of a parent ... ”, Beck at p. 582, quoting Borras v. Falgoust, 285 So.2d 583 at p. 588 (La. App. 4th Cir. 1973).

In McCurdy v. McCurdy, 369 So.2d 1216 (La. App. 2nd Cir. 1979) the mother left the matrimonial domicile and took her two children to another city to live with a man where she remained for five months. The trial court denied her custody of her four and eight year old sons because of these circumstances. The court stated its reliance on a number of cases holding that it is not in the best interests of children to award their custody to a mother where she has recently lived in open and public adultery with her paramour for a substantial period of time in total disregard for moral principles of society. Murray v. Murray, 220 So.2d 790 (La. App. 1st Cir. 1979); Tuggle v. Tuggle, 235 So.2d 166 (La. App. 2nd Cir. 1970); Johnson v. Johnson, 268 So.2d 114 (La. App. 3rd Cir. 1972).

In Schexnayder v. Schexnayder, 371 So.2d 769 (La.1979), a husband was granted a divorce based on adultery but the trial court gave his wife custody of four and six year old children. The wife met her paramour approximately once a week for four months. She met the man in various parts of town and they would go to a hotel or other location for sex. She made no effort to conceal her activities in a rural area even though their relationship was interracial. Evidence tended to show that the wife was either unable or unwilling to discontinue the relationship. The trial judge reasoned that numerous cases have held that a brief affair or isolated instances of adultery, not shown to have been conducted in the presence of children, are insufficient to deny custody to a mother who is otherwise suitable. The Supreme Court reversed and said: "... when the mother has consistently engaged in a course of open and public adultery in defiance of generally accepted moral principles and in disregard of the embarrassment and injuries which might be sustained by the children, then the court is justified in depriving her of the care of the children, and in awarding custody to the father or to some other party lawfully entitled to it.” Schexnayder at p. 772, citing Monsour, supra; Salley v. Salley, 116 So.2d 296 (La.1959); Beck, supra; Parker v. Parker, 304 So.2d 681 (La. App. 3rd Cir. 1974), writ denied 307 So.2d 641 (La.1975).

The purpose of the above jurispru-dentially established rule is not to punish the mother but to protect the children. We recognize that in some cases infrequent indiscretions may be borne out of human frailty rather than an absence of moral character. In such cases the children are not involved and the adulterous affair will not militate against the person claiming custody. However, if a parent engages in open and public adultery over a period of time, in defiance of generally accepted moral principles, in total disregard of any embarrassment and injuries which might occur to children of the marriage, then this misconduct creates a strong negative consideration in determining suitability for custody. Beck, supra; Monsour, supra; Borras, supra. We believe this because common knowledge and experience teaches that a child learns by example, especially from the parents, Beck, supra. It is a parent’s duty to demonstrate to his or her children qualities of good moral character. Consequently, parents fail in that duty when they openly and notoriously display an utter disregard for moral and social values in the area of sexual fidelity toward each other and thus forfeit the moral leadership owed their children. Schexnayder, supra, at p. 773.

“The paramount consideration in determining to whom custody should be granted is always the welfare of the children.” Fulco v. Fulco, 254 So.2d 603 (La.1971); Montgomery v. Montgomery, 383 So.2d 1384 (La. App. 4th Cir. 1980); Schnexnayder, supra, at p. 772.

In making a custody determination based upon a parent’s lifestyle “.. . we consider whether the behavior was damaging to the children, i. e., if the children were aware of the illicit relationship, whether sex play occurred in their presence, whether the furtive conduct was notorious and brought embarrassment to the children, and what effect the conduct had on the family home life.” Howes v. Howes, 388 So.2d 1182 (La. App. 4th Cir. 1980).

We are aware that trial court custody decisions are seldom disturbed on appeal. However, when reversal has been granted the facts generally involve open adulterous activities within the knowledge of the children. We have articulated above a solid foundation to conclude that the trial judge committed manifest error in granting custody to the mother. We are satisfied that Mr. Hilderbrand will be able to provide a healthy and stable environment in which to raise his children. Impact upon the children by changing custody would be minimal because the children recently lived for approximately twenty months with their father.

Accordingly, the judgment of the District Court is hereby reversed and custody of the three minor children is awarded to William C. Hilderbrand effective immediately upon rendition of this judgment. Visitation in favor of Patricia H. Hilderbrand shall be allowed if mutually agreeable between the parents or subject to a determination by the District Court, if necessary. Costs of this appeal to be paid by the appellee.

REVERSED.

      . At the time of trial the children’s ages were Kathryn-10, David-8, and Elizabeth-6.


author: SARTAIN, Judge.

text:
    Glen J. STIPELCOVICH v. MIKE PERSIA CHEVROLET CO., INC., Chevrolet Motor Division, General Motors Corporation, Robert Campbell and Joseph Salvatore.
    No. 11235.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 12, 1980.

      Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Stewart E. Niles, Jr., New Orleans, for plaintiff-appellee.
    Baldwin & Haspel, Michael F. Little and William E. Wright, Jr., New Orleans, for defendants-appellants.
    Before CHEHARDY, BARRY and SAR-TAIN, JJ.
   SARTAIN, Judge.

This is a suit for damages suffered by Glen J. Stipelcovich for breach of contract by Mike Persia Chevrolet Company, Inc., Joseph Salvatore and Robert Campbell for the purchase of a limited edition Indy Pacer Corvette automobile. When the automobile arrived defendants refused to deliver the car to plaintiff and this litigation followed.

After trial on the merits judgment was rendered in favor of plaintiff and against defendant Mike Persia Chevrolet Company, Inc. for $20,945.14. The claims against Joseph Salvatore and Robert Campbell were dismissed. From that judgment defendant, Mike Persia Chevrolet Company, Inc., has appealed.

VALID CONTRACT

Defendant avers there was not a valid contract to sell because a written order form had not been signed by plaintiff. Further, defendant contends the trial judge erred in refusing to allow testimony concerning authorizing sales of vehicles.

A contract to sell movables need not be written. In the early part of January, 1978 the parties agreed on the thing, the price and terms. From that moment there existed a valid contract to sell. To prevail defendants would have to prove that a further written agreement was contemplated by the parties to make the oral agreement binding.

Testimony of Robert Campbell revealed that plaintiff had purchased several Corvette automobiles previously. Many of these were for resale through plaintiff’s used car business, some were for his Corvette collection. Mr. Campbell generally made agreements to purchase by telephone without signing an order form until delivery of the vehicle. The testimony indicates that a written agreement was not contemplated by the parties until the actual delivery of the automobile. Therefore, a valid oral agreement to sell the Indy Pacer Corvette was reached by the parties.

Evidence concerning sales to other customers or testimony concerning the policy of defendant with regard to written order forms was irrelevant and correctly refused by the trial judge.

Further evidence of the existence of a valid oral contract is the special order form to Chevrolet Motor Division showing the customer as Glen Stipelcovich. According to Robert Campbell the deal was considered settled when the special order form was completed and signed by defendant’s sales manager.

Secondly, defendant contends there was not a valid contract because of an error of fact at the inception of the contract. That error, according to defendant, was in setting the price of the automobile. While the car was in production reports of a rise in value of the Indy Pacer Corvette appeared in the newspaper and trade journals, causing defendant’s management to realize that the ear could have been sold for a substantially higher price.

Error cannot have the effect of voiding a contract otherwise complete as to intent and purpose. Ardoin v. Central Louisiana Electric Company, Inc., 318 So.2d 5 (La.1975). Failure of one of the parties to anticipate the value of the property will not render void a complete contract.

Defendant argues that when one of the parties is unaware or misinformed there exists an error of fact vitiating consent. When that error involves the value of some object and the means of ascertaining that value is equally available to all parties, the sale will not be declared invalid. Zadeck v. Arkansas Louisiana Gas Company, 338 So.2d 303 (La.App. 2nd Cir. 1976). Both parties were aware that the vehicle was a limited edition and both parties had access to information regarding the sale of this vehicle.

EARNEST MONEY

Defendant insists the $500.00 deposit paid by plaintiff was earnest money. If this deposit is earnest money, defendant can withdraw from the contract by paying double the deposit as provided in LSA-C.C. art. 2463:

“But if the promise to sell has been made with the giving of earnest, each of the contracting parties is at liberty to recede from the promise; to-wit: he who has given the earnest, by forfeiting it; and he who has received it, by returning the double.”

This was not, however, a contract to sell providing for earnest money or deposit.

At this point, the sequence of events surrounding the contract to sell becomes important. The testimony of Robert Campbell and of plaintiff establishes the date of the contract to sell as sometime shortly before January 11, 1978. The vehicle was ordered by defendant on the special order form on January 11, 1978. The deposit of $500.00 was requested of plaintiff by Robert Campbell on January 13, 1978 and furnished by check on January 14, 1978. Clearly, a binding contract to sell without provisions for a deposit was entered into prior to January 11, 1978. At this point both parties to the contract were bound to perform. This promise to sell was not “made with the giving of earnest.”

The request for a deposit several days after entering into a contract to sell did not affect the obligation undertaken by parties. This is evident from the testimony regarding the intent of the parties. Both plaintiff and Robert Campbell indicated the reason for the deposit was to insure performance on the part of both parties. After the contract to sell is entered into by the parties any amount of money paid by the purchaser can only be a partial performance on his part unless the parties agreed to modify the terms of the original contract. There is no evidence of any agreement to modify the original contract.

DAMAGES

LSA-C.C. art. 1934 provides for damages for breach of contract in pertinent part as follows:

“Where the object of the contract is anything but the payment of money, the damages due to the creditor for its breach are the amount of the loss he has sustained, and the profit of which he has been deprived, under the following exceptions and modifications:
“1. When the debtor has been guilty of no fraud or bad faith, he is liable only for such damages as were contemplated, or may reasonably be supposed to have entered into the contemplation of the parties at the time of the contract. By bad faith in this and the next rule, is not meant the mere breach of faith in not complying with the contract, but a designed breach of it from some motive of interest or ill will. “2. When the inexecution of the contract has proceeded from fraud or bad faith, the debtor shall not only be liable to such damages as were, or might have been foreseen at the time of making the contract, but also to such as are the immediate and direct consequence of the breach of that contract; but even when there is fraud, the damages can not exceed this.
“3. Although the general rule is, that damages are the amount of the loss the creditor has sustained, or of the gain of which he has been deprived, yet there are cases in which damages may be assessed without calculating altogether on the pecuniary loss, or the privation of pecuniary gain to the party. Where the contract has for its object the gratification of some intellectual enjoyment, whether in religion, morality or taste, or some convenience or other legal gratification, although these are not appreciated in money by the parties, yet damages are due for their breach; a contract for a religious or charitable foundation, a promise of marriage, or an engagement for a work of some of the fine arts, are objects and examples of this rule.
“In the assessment of damages under this rule, as well as in cases of offenses, quasi offenses, and quasi contracts, much discretion must be left to the judge or jury, while in other cases they have none, but are bound to give such damages under the above rules as will fully indemnify the creditor, whenever the contract has been broken by the fault, negligence, fraud or bad faith of the debtor.”

It is well settled law that the proper measure of damages for breach of contract to sell personal property is the difference between the contract price and the market price of the goods on the date delivery should have been made. Pepper v. Katz, 77 So.2d 891 (Orl.La.App.1955). The trial judge placed a $35,000.00 market value on the vehicle on the date delivery should have been made. This value less the contract price of $14,054.86 equals $20,945.14. We do not find any evidence in the record on which the trial judge based his $35,-000.00 figure. In absence of such evidence, the trial judge’s “much discretion” may be disturbed. Regans v. Aetna Casualty and Surety Company, 308 So.2d 898 (La.App. 2nd Cir. 1975).

The record indicates that the management of defendant placed an ad in the Wall Street Journal for the sale of the vehicle for $30,000.00 or best offer. Plaintiff believes that the Indy Pacer Corvette was worth between $25,000.00 and $30,-000.00. Jan Stipelcovich, the only expert to testify regarding valuation, placed the average value in the $25,000.00 range. Based on the evidence in the record we find the market value of the vehicle on the date of delivery to be $25,000.00. The difference between this value and the contract price is $10,945.14.

Plaintiff argues that he is also entitled to profits he could have made from resale of the Indy Pacer Corvette. According to plaintiff’s testimony, he had anticipated holding the vehicle as part of his collection for appreciation. He estimated the value in five years to be around $50,000.00. Jan Stipelcovich estimated the value in 5 years to be $48,000.00 to $50,000.00. Damages for lost profits are recoverable under C.C. art. 1934. While plaintiff is not required to establish these lost profits with absolute certainty, neither can they be conjectural. Southern Television Electronics v. L.O.D. Reed, 244 So.2d 624 (La.App. 4th Cir. 1971). Damages in this instance for lost profits are purely speculative and cannot be awarded.

The trial judge correctly found that “there was a willful and deliberate bad faith breach of contract on the part of the top management personnel of Mike Persia Chevrolet Company, Inc.” When a contract is breached in bad faith the party guilty of that bad faith breach is liable for all immediate and direct damages. LSA-C.C. art. 1934(2). Plaintiff submits because of this bad faith breach defendant is liable for loss of intellectual enjoyment as well as mental anguish, emotional distress and inconvenience. Non-pecuniary damages for breach of contract are recoverable when a principal or exclusive object of the contract is intellectual enjoyment. Meador v. Toyota of Jefferson, Inc., 332 So.2d 433 (La. 1976). Plaintiff, according to his testimony, anticipated storing the vehicle for resale at a later date. Hopefully, the appreciation of the vehicle would have resulted in some profit. We believe plaintiff’s purpose in purchasing the Indy Pacer Corvette was purely economic. Intellectual enjoyment was not “an object” of the contract. Plaintiff did not foresee using or showing the vehicle. His plan was merely to store the vehicle for resale at a later date.

Finally, defendant avers that plaintiff did not mitigate his damages. In every case a party who has been damaged has a duty to mitigate his damages. Carey v. Guaranty Insurance Life Company, 292 So.2d 337 (La.App. 2nd Cir. 1974). The record indicates plaintiff did in fact attempt to mitigate his damages by searching for another Indy Pacer Corvette.

The judgment of the district court is amended by reducing the amount of damages from $20,945.14 to $10,945.14 and, as amended, is affirmed. The costs of this appeal are assessed to defendant.

AMENDED AND AFFIRMED.

      . C.C. art. 2462 reads:
      “A promise to sell, when there exists a reciprocal consent of both parties as to the thing, the price and terms, and which, if it relates to immovables, is in writing, so far amounts to a sale, as to give either party the right to enforce specific performance of same.
      “One may purchase the right, or option to accept or reject, within a stipulated time, an offer or promise to sell, after the purchase of such option, for any consideration therein stipulated, such offer, or promise cannot be withdrawn before time agreed upon; and should it be accepted within the time stipulated, the contract or agreement to sell, evidenced by such promise and acceptance, may be specifically enforced by either party.”

      . The court recognizes the long-standing jurisprudential rule concerning deposits made pursuant to an agreement to sell being considered earnest in absence of a clearly stated contrary intention. Houston v. Edgemon, 367 So.2d 151 (La.App. 2nd Cir. 1979). We perceive, however, a vast difference between deposits made pursuant to an agreement and an agreement to make a deposit after the contract to sell is already in existence.


text:
    Hortense MERCHANT v. DEPARTMENT OF FINANCE.
    No. 11282.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 12, 1980.
    Rehearing Denied Dec. 19, 1980.
    New Orleans Legal Assistance Corp., Luz Molina and Gwendolyn F. Bole, New Orleans, for plaintiff-appellant.
    Michael A. Starks, Deputy City Atty., New Orleans, for defendant-appellee.
    Before CHEHARDY, BARRY and SAR-TAIN, JJ.
   SARTAIN, Judge.

Ms. Hortense Merchant appeals a decision of the New Orleans Civil Service Commission which upheld her dismissal as a Food Stamp Worker II with the City’s Department of Finance. We reverse as to dismissal and remand.

One of appellant’s duties was to count the cartons of food stamps in order that they might be properly accounted for. The letter of dismissal charged appellant with (1) making excessive errors in the counting of food stamps, (2) an act of insubordination by her refusal to count the stamps, and (3) threatening to harm another employee with a pair of scissors.

The evidence reflects that while the first and second charge would not have warranted dismissal, the cumulative effect of these charges when considered with the third charge, if proved, compelled appellant’s termination.

With respect to the first charge, an employee is entitled to three errors. When a fourth error is detected a letter noting the same is placed in the employee’s personnel file.

As to the second charge, the evidence fully supports the conclusion that appellant was insubordinate on March 14, 1979 when she was directed by Ms. Laura B. Moore, an acting supervisor, to “start counting the stamps”. Her complaint is that she should not have been directed to count them alone. While she ultimately started to count the stamps she did so in an improper manner which resulted in no count at all.

The incident of March 14 prompted a staff meeting the following day. The purpose of the meeting was to discuss the episode which had occurred in the absence of the regular supervisor. It was during this meeting that appellant allegedly held up a pair of scissors in a threatening manner toward another employee (Ms. Humphrey) and said, “I will put these scissors in you”.

Civil Service Commission decisions are now reviewable in the appellate courts on both law and fact. Art. 10, § 12, La. Const. (1974). The scope of review is essentially the same as in other civil matters. Michel v. Department of Public Safety, Alcoholic Beverage Control Board, 341 So.2d 1161 (La.App. 1st Cir. 1976), writ refused, 343 So.2d 1078 (La.1977); Armant v. Housing Authority of New Orleans, 351 So.2d 1262 (La.App. 1st Cir. 1977).

However, in the instant matter the evidence was taken before a hearing examiner and the record thus compiled was filed with the Commission without comment or recommendation. For this reason the usual guidelines for appellate review, i. e., manifest error rule, as set forth in Canter v. Koehring Co., 283 So.2d 716 (La.1973), and clarified in Arceneaux v. Domingue, 365 So.2d 1330 (La.1978) are not applicable. See Subdivision Planning Engineers, Inc. v. Manor Development Corp., 290 So.2d 375 (La.App. 4th Cir. 1974). The great weight accorded conclusions and determinations made by the trier of fact under Canter and Arceneaux is based on the advantage derived from personal observation of the witnesses, their demeanor on the stand, and the manner in which they responded to examination. Here, the Commission enjoyed no such advantage. Under these circumstances the standard of review by an appellate court is not unlike that of judicial review in other administrative matters, that is, whether the conclusion reached by the Commission is arbitrary or capricious or manifestly wrong. Cf. R.S. 49:964 G(5). Under this standard, we find the conclusion reached by the Commission to be arbitrary and not supported by a preponderance of the evidence.

Initially, we point out that several statements contained in the Commission’s reasons for judgment are in error. Ms. Juanita Barrow is quoted as a witness to the incident involving the scissors. The record clearly reflects that she was not present during this episode. The opinion also refers to other acts of insubordination on previous occasions and quotes the testimony of Ms. Moore as supportive of its finding. Ms. Moore’s testimony clearly refers to the events of March 14 only. Ms. Clark is quoted as having previously written up appellant for insubordination and as having recommended a 30-day suspension therefor. The statement is totally out of context. There were no previous written reports of insubordination and the 30-day suspension referred to by the witness was for the act of insubordination on March 14.

We turn now to the real issue in this matter, that is, whether appellant did in fact threaten a co-employee with a pair of scissors.

The letter of dismissal, in pertinent part, charges:

“On March 15, 1979, in an office staff meeting you became highly excited to the state of threatening one of your fellow workers with a pair of scissors. We feel that this type of activity on your part is completely against the code of conduct of this department. We cannot and will not tolerate anyone who works for this department threatening anyone else, either fellow employee or citizen regardless of whatever provocation may have been made.”

Four persons attended the staff meeting: appellant; Ms. Higgins, a monitor from the Department; Ms. Moore, appellant’s immediate supervisor; and the alleged victim, Ms. Humphrey.

Following a general discussion among those present concerning the counting of food stamps it was then suggested that if anyone had anything else on their mind this was a good time to bring it up. Ms. Humphrey, although at first hesitant, then commenced to discuss a complaint she had relative to appellant. As she got further into the discussion she totally lost her composure, arose from her seat, began cursing appellant, and moved towards appellant. She became so violent and hysterical that she had to be physically restrained, forcefully removed to an adjoining room, and the door closed. When efforts to calm her down were somewhat successful, she was taken to her family physician.

Appellant, who was seated at her desk, arose as Ms. Humphrey approached her and picked up a pair of scissors from a box on her desk. She stated that she was afraid that Ms. Humphrey was going to strike her. She denies making the alleged statement, “I’ll put these scissors in you”, although she did make a statement to the effect that if Ms. Humphrey struck her “she wouldn’t hit anybody else.”

The only person to hear the alleged threat, “I’ll put these scissors in you” was Ms. Higgins. Neither Ms. Moore, Ms. Clark nor even Ms. Humphrey heard the threat. We are completely convinced that the actions of appellant in standing and even in picking up the scissors were instantaneous responses of self defense to the threats of a totally irrational and menacing individual in the person of Ms. Humphrey. For these reasons we find that the appointing authority has failed in its burden of proving the charge as stated above and the Commission erred in so holding.

The decision of the Commission in this respect is reversed and set aside and this matter is remanded to the Commission for a reconsideration of the sanction to be imposed on the remaining two charges.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.