author: REDMANN, Judge. GULOTTA, Judge,

text:
    Herman J. BUSTAMANTE v. John MANALE.
    No. 11797.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 7, 1981.
    Nel F. Vezina, Gretna, for plaintiff-appel-lee.
    Gregory M. Porobil, New Orleans, for defendant-appellant.
    Before REDMANN, GULOTTA and SCHOTT, JJ.
   REDMANN, Judge.

Defendant appeals from a judgment which, by awarding $25,000 to plaintiff, reduced by $25,000 the price of a defective house defendant built and sold to plaintiff for $50,500 April 23, 1976. The judgment also awarded to plaintiff $5,000 attorney fees. Defendant concedes that the defectiveness of the house would justify avoidance of the sale for redhibitory defects. Defendant’s appeal asks that the sale be avoided, so that he recover the house and lot by returning 100% of the price to plaintiff, rather than let plaintiff keep the house and lot but oblige defendant to return half of the price.

Defendant’s brief expressly envisions that his liability upon avoiding the sale be “limited to a restoration of the purchase price and a reimbursement of the reasonable expenses occasioned by the sale.” Defendant claims the limited liability under La.C.C. 2531 of a seller ignorant of the defects. Thus defendant by his appeal does not ask for avoidance of the sale on the terms applied under C.C. 2545 to a seller who knows the defects, who “besides the restitution of price and repayment of the expenses, including reasonable attorneys’ fees, is answerable to the buyer in damages.”

Plaintiff neither appealed nor answered defendant’s appeal. We therefore cannot modify the judgment to make it more favorable to plaintiff. La.C.C.P. 2133. But it is clear that plaintiff does not want the sale set aside. Although he first sued for “rescission,” an amended petition demands $100,000 damages for demolishing and rebuilding the house and for living expenses meanwhile. Thus plaintiff converted his redhibitory action into an action quanti minoris (coupled with a demand for damages such that the amount sought exceeds the price). Indeed, the record contains a copy of a written offer by defendant to return the price if plaintiff would recon-vey the property; presumably plaintiff rejected that offer.

Thus, ignoring the possibility of reducing the $25,000 award to plaintiff, this appeal by defendant alone presents one basic question: may the seller obtain avoidance of a sale upon suit by the buyer for a reduction in price and for damages?

We conclude that this case is no exception to La.C.C. 2541’s rule that “the buyer may limit his demand to the reduction of the price” (and, C.C. 2543, “can not afterwards maintain the redhibitory action”). We therefore affirm.

Pursell v. Kelly, 1963, 244 La. 323, 152 So.2d 36, 39-40, n. 4, foresaw this case from defendant’s view:

In our recent cases (see Lemonier v. Coco, 237 La. 760, 112 So.2d 436, citing McEachern v. Plauche Lumber & Construction Co., Inc., 220 La. 696, 57 So.2d 405 and Wilfamco, Inc. v. Interstate Electric Co., 221 La. 142, 58 So.2d 833) it has been concluded that, in actions for quanti minoris involving the sale of realty, the measure of recovery is the amount necessary to convert the unsound structure into a sound one. The reason given for this exception is that the usual rule — that the measure of recovery is the difference between the value of the thing sold in its defective condition and its value as warranted (see Iberia Cypress Co. Ltd. v. Von Schoeler, 121 La. 72, 46 So. 105 and other cases) — cannot be applied in cases of this sort inasmuch as the difference in value of real estate is not readily or easily ascertainable unless there has been an immediate resale of the property.
In the event it were held in the instant case that defendant was liable for a reduction in price, application of the aforementioned method of measuring recovery would appear to be highly inequitable for this would require defendant to pay the costs, amounting to almost $10,000, to repair a building valued at only $12,000 at the time of the sale. In instances where the costs of the repairs are far out of proportion with the price paid for the property, it would seem that a rescission of the sale would be the only just and proper remedy when the vendee has shown that he is able to place his vendor in substantially the same position as he was prior to the sale.

Our facts are that the defects in the house’s pilings and slab are so serious that, as a practical matter, the house cannot economically be made sound. The only testimony on cost is from one contractor who would charge about $100,000 to demolish and remove the present structure and duplicate it (properly placed on sufficient pilings). That testimony would support a judgment for $100,000 as cost of repair but not $25,000. There is no testimony of the market value of the house in its. present unsound condition compared to sound condition, and thus there is no evidence on market values that would support a judgment for $25,000.

Evidently the trial judge did not wish to override the plaintiff’s preference not to have the sale set aside. But he recognized the untenability of awarding $100,000 (or even $50,000) as a “price reduction” in a $50,500 sale. He therefore granted, in effect, a price reduction perhaps as large as he deemed legally permissible (a question not at issue on this appeal).

The trial judge’s resolution of the problem was not ideal but we know no better. Inflation has priced comparable houses considerably higher in the intervening five years, and to return the price would not enable plaintiff to buy a comparable house today. A proper judgment would award the buyer the $50,500 price plus the mortgage interest paid — perhaps plus legal interest on both from judicial or earlier demand, Alexander v. Burroughs Corp., La.1978, 359 So.2d 607, on the theory that the use of this house was so inconvenient as not to be an equivalent for interest. Even if the $50,500 thus increased by double interest would amount to the price of a comparable house today, our buyer would have to pay off his advantageous 8.5% mortgage and thus would presumably have to borrow an equal amount (about $40,000) at today’s rates of perhaps 15%. It is thus wholly understandable that the buyer might prefer to keep the defective house even though the reduction in price does not suffice to repair the defects. We refuse to order avoidance of the sale because the buyer cannot be restored to his pre-sale position as the action of redhibition intends.

Finally, we note defendant’s argument that he is not in the position of a manufacturer (charged with knowledge of defects and thus liable for damages and attorney fees, see Alexander, supra) because he did not himself build the house but had another build it. We assume that one who had a house built for his own use by a contractor, but then sold it, should not be charged with the builder’s imputed knowledge of its defects. But defendant has with some frequency built or had built houses to sell and thus does that as a business; he does not have a written or even fixed-price contract with his builder, whose payment depended upon the sale of the house.

We therefore find no difference between defendant’s position and that of the builder who employs subcontractors but who is nevertheless charged with knowledge of the defect in the subcontractor’s work, as in Schamens v. Crow, La.App. 2 Cir., 1976, 326 So.2d 621.

Affirmed.

GULOTTA, Judge,

dissenting.

I dissent. Although I would affirm the damages and attorney’s fees awarded by the trial court, I am of the opinion that plaintiff is further entitled to a rescission of the sale and a refund of his purchase price plus reasonable expenses occasioned by the sale.

The testimony is clear that the house was beyond repair because of redhibitory defects. In such instance, a good-faith seller must “restore the purchase price, and reimburse the reasonable expenses occasioned by the sale....” See LSA-C.C. Art. 2531. However, where a seller knows of the vice of the thing he sells and fails to disclose it to the purchaser, he is answerable to the buyer in damages in addition to the restitution of the price and repayment of expenses, including reasonable attorney’s fees. See LSA-C.C. Art. 2545.

It is clear from the reasoning of the trial judge that he was compelled to award plaintiff monetary relief and not rescission because of the increased damage award sought in the supplemental and amended petition. The trial judge apparently concluded the demand for rescission sought in the original petition had been abandoned. I find no such constraint as apparently the trial judge did. In the original petition plaintiff sought rescission and attorney’s fees. The first amended and supplemental petition prays for the relief sought in the original petition and, in addition $50,500.00. Again, the second amended petition seeks the relief sought in the original petition and additionally an increased money judgment. Likewise, in the third supplemental and amended petition plaintiff prays for increased monetary damages and attorney’s fees. I do not find in these pleadings a repudiation of plaintiff’s original demand for rescission. Furthermore, the evidence clearly establishes plaintiff’s entitlement to this relief and to return of the purchase price.

I further conclude plaintiff is entitled to monetary damages as well as rescission and restitution of the purchase price. The record supports the conclusion that Manale either knew or should have known of the vices of construction. Manale testified that he had the house constructed solely for the purpose of selling it. Although Manale was not a contractor, he relied on the expertise of one Warner who was to share in the profit and who also participated with him in other home building ventures. Manale, therefore, falls into the category of “vendor-builder” in the same position as a “manufacturer” bound by the article on redhibition. As a builder or manufacturer charged with the knowledge of the defects, Manale is responsible, in addition to rescission, for restitution of the purchase price, damages and attorney’s fees. LSA-C.C. Art. 2545; Tuminello v. Mawby, 220 La. 733, 57 So.2d 666 (1952); Schamens v. Crow, 326 So.2d 621 (La.App. 2d Cir. 1976), on rehearing; Cox v. Moore, 367 So.2d 424 (La.App. 2d Cir. 1979), writ denied, La., 369 So.2d 1364.

Bustamante purchased this house in April, 1976 and is apparently living and residing in the residence under adverse conditions. Under the circumstances, considering the loss in escalated value of real property if it had been purchased without defects, together with plaintiff’s inconvenience, I do not find a $25,000.00 monetary award an abuse of the trial court’s discretion. I find no abuse further in the $5,000.00 award for attorney’s fees. Although Bustamante seeks an increase above the $25,000.00 monetary award made to him by the trial judge, he has neither appealed nor answered the appeal and this court would be powerless to increase the damage award.

Having so concluded, I would affirm the monetary judgment in favor of plaintiff in the sum of $25,000.00, plus $5,000.00 in attorney’s fees, but I would further order that the sale of the property located at 2404 Transcontinental Drive in Metairie, Louisiana, purchased by plaintiff on April 23, 1976 be rescinded and set aside and that defendant return to plaintiff the $50,500.00 purchase price.

For these reasons, I respectfully dissent.

      . LSA-C.C. Art. 2545 reads as follows:'
      “The seller, who knows the vice of the thing he sells and omits to declare it, besides the restitution of price and repayment of the expenses, including reasonable attorneys’ fees, is answerable to the buyer in damages.”

      . I note that a builder who constructs a house to his own plans and specifications and thereafter puts the building or lot on the market for sale, is treated as a vendor subject to an action for redhibition by a subsequent vendee for defects in the premises. In such a case, LSA-C.C. Art. 2762, dealing with a contractor’s liability for badness of workmanship, does not apply. See Hermeling v. Whitmore, 140 So.2d 257 (La.App. 1st Cir. 1962).


source: Caselaw Access Project

author: REDMANN, Judge.

license: Public Domain

text:
    Richard H. NIELSEN v. Rosalie Grace Gauthe NIELSEN.
    No. 11798.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 7, 1981.
    James L. Cannella, Donelon, Cannella & Donelon, Metairie, for plaintiff-appellant.
    Robert A. Pitre, Jr., Gretna, for defendant-appellee.
    Before REDMANN, GULOTTA and SCHOTT, JJ.
   REDMANN, Judge.

An ex-husband appeals from a judgment refusing to terminate or reduce alimony.

The ex-husband had had business reverses but is now employed for $2,900 gross monthly. He has remarried and his wife has modest earnings; he has adopted her teenage daughter.

The ex-wife took employment as a school bus driver beginning September 1979 from which her 1979 federal income tax return, prepared by a professional preparer, shows she had gross income of $7,312.81 and employee expenses of $4,413.23 (presumably including all expenses and depreciations). Her adjusted gross of $2,899.58 for that four-month period means she averaged $724.89 monthly. If she earns $724.89 monthly during the nine months of the school year, that would average $543 or less per month when spread over the 12 months of the calendar year. Included in her expenses are $278 house note and unusual medical expenses ($166) allegedly attributable to cancer.

We cannot find an abuse of the trial court’s discretion in fixing reasonable alimony at $500.

Affirmed.


author: GULOTTA, Judge. CHEHARDY, Judge,

text:
    Daniel McDONALD v. BOH BROS. CONSTRUCTION CO., INC., Murray Chatelain and Leonard Guillot.
    No. 10954.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 7, 1981.

      Bienvenue, Foster, Ryan & O’Bannon, H. F. Foster, III, New Orleans, for defendants-appellees.
    Marvin G. Grodsky, New Orleans, for plaintiff-appellant.
    Before GULOTTA, GARRISON, and CHEHARDY, JJ.
   GULOTTA, Judge.

This executive officer suit for injuries occurring on April 20, 1978 was dismissed on exceptions of no cause of action, no right of action and motion for summary judgment. Plaintiff appeals. We affirm.

Plaintiff’s petition alleges he was injured in the course and scope of his employment when he fell after his foot caught in a slack cable on a crane boom from which he was descending in response to specific orders given him. He further alleged his accident was approximately caused by certain intentional acts of defendants, in particular the following:

“(a) Intentionally ordering petitioner to an inherently unsafe position requiring him to traverse a slanting, narrow boom without adequate walkway, suspended in the air, with slack cable line atop it;
(b) Intentionally authorizing and ordering work procedures (i. e., having the crane boom raised instead of lowered to the ground, or parallel to it, failing to provide ladder scaffold or other safe means for employees to get to the elevated work site, allowing slack cable to remain' draped upon the already narrow and inadequate walkway) so hazardous as to constitute a dangerous trap for the employees under its supervision and with whose safety defendant was charged;
(c) Intentionally authorizing and ordering its employees onto a site of work for its employees which expose them to a great risk of harm;
(d) Intentionally failing to comport with standards of the industry, thereby creating hazardous working conditions.”

In his written reasons for judgment, the trial judge stated the basis for his ruling was this Court’s decision in Johnson v. Narcisse, 373 So.2d 207 (La.App.4th Cir. 1979). The Johnson case interpreted the words “intentional act”, used in LSA-R.S. 23:1032 (as amended by Act 147 of 1976), to mean the defendant must have desired or intended to bring about the result and should have believed the result was substantially certain to follow. Thus, where a petition fails to contain these allegations, a plaintiff has failed to state a cause of action for an intentional tort against his executive officers.

Plaintiff contends the phrase “intentional act” should be narrowly construed to mean that to be excepted from coverage by the Compensation Act, a defendant merely need have intended the act which led to plaintiff’s injury, whether or not defendant intended or desired the result and whether or not the result was foreseeable.

In Bazeley v. Tortorich, 397 So.2d 475 (La.1981), upholding the constitutionality of LSA-R.S. 23:1032, the Louisiana Supreme Court recently construed the phrase “intentional act” as used in the statute to mean that the defendant either desired to bring about the physical results of his act or believed that they were substantially certain to follow from what he did. The Baz-ley court squarely rejected the arguments that “intentional act” should be equated with “voluntary act” and that an injured employee may recover in tort on any voluntary act setting in motion events leading to the injury regardless of whether the harm appeared likely or was even apparent at all to the actor. Thus, in Bazley, the employee’s petition did not state a cause of action in tort since it merely alleged that the accident was caused by a co-employee’s intentional acts in operating a garbage truck and did not allege that the co-employee desired the consequences of his acts or believed that they were substantially certain to follow his acts.

Plaintiff’s argument in our case is substantially the same as that rejected in Baz-ley. Applying that test to plaintiff’s allegations, quoted above, it is clear the acts made the basis of this suit arose solely in the context of the employment relationship and were not intentional as defined in Bazley.

The petition here does not allege that defendants desired or intended the harm plaintiff suffered or believed the result was substantially certain to follow.

Although plaintiff’s allegations are couched in terms of intent, such phraseology is merely conclusory. The substance of his allegations clearly depicts acts that, if proven, would be negligent. His petition does not allege “intentional acts” within the meaning of LSA-R.S. 23:1032. Furthermore, the acts alleged, if committed by an independent third party outside any employment relationship with plaintiff, would not constitute any breach of duty.

Accordingly, we conclude plaintiff has failed to state a cause of action in tort and his exclusive remedy against defendant lies in workman’s compensation.

For the foregoing reasons, the judgment of the district court is affirmed.

AFFIRMED.

CHEHARDY and GARRISON, JJ., concur and assign reasons.

CHEHARDY, Judge,

concurring.

The Supreme Court in Bazley v. Tortorich, 397 So.2d 475 (La.1981) stated: _

“* * * Several courts of appeal have stated the two prongs of the definition in the conjunctive, thus requiring a plaintiff to prove, in order to recover, that the defendant desired the physical results of his act in every case. Waldrop v. Vistron Corp., 391 So.2d 1274 (La.1980); McGuire v. Honeycutt, 387 So.2d 674 (La.App.3d Cir. 1980); Johnson v. Chicago Mill & Lumber Co., 385 So.2d 878 (La.App.2d Cir. 1980); Courtney v. BASF Wyandotte Corp., 385 So.2d 391 (La.App.1st Cir.) writ denied 386 So.2d 359 (La.1980); Bourgoyne v. City of Baton Rouge, 380 So.2d 131 (La.App.1st Cir. 1979), cert. denied 382 So.2d 164 (La.1980); Frazier v. Woodward, 378 So.2d 209 (La.App.4th Cir. 1979); Johnson v. Narcisse, 373 So.2d 207 (La.App.4th Cir. 1979); Tobin v. Jacobson, 369 So.2d 1161 (La.App.1st Cir. 1979); Guidry v. Aetna Casualty & Surety Company, 359 So.2d 637 (La.App.1st Cir.) writ denied, 362 So.2d 578 (La.1978). * * *” The Court then goes on to state:
“* * * Intent is not, however, limited to consequences, which are desired. If the actor knows that the consequences are certain, or substantially certain, to result from his' act, and still goes ahead, he is treated by the law as if he had in fact desired to produce the result. Restatement (Second) of Torts, § 8A, Comment; Prosser, supra, § 8.”

It thus appears that earlier court of appeals’ interpretation of the meaning of “intent” in LSA-R.S. 23:1032 as amended by Act 147 of 1976 has either been overruled by the Supreme Court in Bazley, supra, or at any rate the meaning has been so broadened as to effectively do away with the earlier definition of the courts of appeal. In doing aWay with the earlier definition unless we include in the definition “should have known that the result would follow” there exists a distinction without a difference. Why? Under the Supreme Court definition in Bazley one must desire the result or know that the consequences are substantially certain to result. It is imperative that a responsibility be placed on the actor, not simply that he knows the result but that he should have known the result of his action. The “should have known” standard is preferable in that it is an objective standard. The desired or known result standard is subjective -and thus the distinction without a difference. Accordingly, I interpret the broadened definition of “intentional” as set forth in Bazley to include the objective “should have known” standard. This thinking would be in line with the view expressed in W. Prosser, The Law of Torts, Ch. 2, § 8 (4th ed. 1971), at 31-32:

“Intent, however, is broader than a desire to bring about physical results. It must extend not only to those consequences which are desired, but also to those which the actor believes are substantially certain to follow from what he does. An anarchist who throws a bomb into the royal carriage may actually wish to kill no one but the king; but since he knows that the death of others in the carriage is a necessary and almost inevitable incident to that end, and nevertheless goes ahead with the deed, it must be said that he intends to kill them. The man who fires a bullet into a dense crowd may fervently pray that he will hit no one, but since he must believe and know that he cannot avoid doing so, he intends it. The practical application of this principle has meant that where a reasonable man in the defendant’s position would believe that a particular result was substantially certain to follow, he will be dealt with by the jury, or even by the court, as though he had intended it. The driver who whips up his horses with a loud yell while passing a neighbor’s team will not be credited when he denies that he intended to cause a runaway; and the defendant on a bicycle who rides down a man in full view on a sidewalk where there is ample room to pass may find the court unwilling to accept his statement that he did' not mean to do it.”

I concur in the result not becaüse the allegations in plaintiff’s petition do not comply with Johnson v. Narcisse, 373 So.2d 207 (La.App.4th Cir. 1979), but because the allegations do not satisfy the new definition of “intent” as laid down by Bazley v. Tortorich, supra.

GARRISON, J., concurs for the reasons assigned by CHEHARDY, J.

      . Act 147 of 1976 attempted to abolish executive officers suits by limiting an employee’s remedy against his employer, executive officers and fellow employees to workman’s compensation. In addition, however, the Act provided,
      “Nothing in this Chapter shall affect the liability of the employer or any officer, director, stockholder, partner, or employee of such employer or principal to a fine or penalty under any other statute, or the liability, civil or criminal, resulting from an intentional act.” (Emphasis added.)


author: GULOTTA, Judge.

text:
    Gustave JONES v. GENTILLY DODGE, INC.
    No. 11773.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 7, 1981.

      McCann & Volk, James A. McCann, New Orleans, for plaintiff-appellant.
    Liskow & Lewis, Frederick W. Bradley, New Orleans, for defendant-appellee.
    Before GULOTTA, BOUTALL and SCHOTT, JJ.
   GULOTTA, Judge.

Plaintiff appeals from the dismissal, on an exception of no right of action, of the claim for the value of the loss of a motor van transferred and assigned in subrogation to his insurer. We affirm.

The petition alleges that plaintiff on March 25,1977 purchased a motor van from Gentilly Dodge, Inc. and on June 7, 1977 returned the van to defendant for repairs and adjustments within the warranty. These repairs were sought by plaintiff in anticipation of a vacation trip. While in the possession of Gentilly Dodge, the van was stolen and never recovered. Plaintiff’s petition, filed on May 23, 1978, seeks, in addition to damages for the loss of the van, loss of contents, inconvenience, the rental expense incurred from obtaining an alternate vehicle, and loss of enjoyment of vacation.

Allstate Insurance Company, plaintiff’s theft insurer, in consideration of the payment to plaintiff of a sum of $10,500, obtained from plaintiff a certificate of satisfaction and subrogation agreement. Paragraph 8 of the agreement provides:

“3. The Insured hereby, assigns, transfers, and sets over to the Insurer any and all claims for or causes of action of whatever kind and nature which the Insured now has, or may hereafter have, to recover against any person or persons as the result of said occurrence and loss above described, to the extent of the payment above made; the Insured agrees that the Insurer may enforce the same in such manner as shall be necessary or appropriate for the use and benefit of the Insurer, either in its own name or in the name of the Insured; ...”

The above appears in the printed form part of the agreement. However, a typewritten addition was made to the subrogation agreement and provides:

“5. Insured reserves rights to enforce claim against any person or persons for negligence or theft (including breach of duty) for any damages and/or loss in excess of this settlement.”

The agreement also contains a handwritten recitation that provides:

“This agreement pertains to above described vehicle only, and settlement of $10,500.00 for actual value of said vehicle.”

The vehicle described in the agreement is the van belonging to the insured that was apparently stolen from defendant’s yard.

The trial judge maintained defendant’s exception of no right of action “insofar as the value of the van is concerned (value $10,500)”.

As pointed out in brief, Allstate has never asserted a claim against Gentilly Dodge for the loss and that claim is now prescribed.

The multi-faceted contentions of plaintiff in this appeal are, 1) that in paragraph 5 of the subrogation agreement, plaintiff reserved his right to enforce his claim for any damages in excess of the settlement including the loss of the van, when Allstate has failed to assert a claim for that loss; 2) that if any contradiction or conflict exists in the subrogation agreement between the language in the printed form and the typewritten addition, the typed addition supersedes the printed provisions; 3) that defendant has no right to assert or receive protection or advantage from the subrogation agreement to which it was not a party; and 4) that paragraph 5 grants a partial subrogation to Allstate requiring enforcement by a suit of both plaintiff and Allstate (subrogor and subrogee) and, because Allstate chose not to seek recovery, plaintiff is entitled to seek full recovery under paragraph 5 of the agreement. In this connection, plaintiff claims that suit filed only by the subrogor where there has been a partial subrogation, is subject to the exception of non-joinder, but that this exception has been waived by Gentilly Dodge. Finally, plaintiff contends, 5) that the “collateral source rule” does not permit the wrongdoer (Gentilly Dodge) to take advantage of an agreement between Allstate and plaintiff to deny a claim by the injured party, plaintiff.

Considering plaintiff’s contentions in the order presented, we reject the claim that paragraph 5 of the subrogation agreement reserves the right to assert against Gentilly Dodge a claim for the value of the loss of the van. It is true that where conflict exists between the printed part of the agreement and any typewritten addendum, the typewritten recitation supersedes the printed provisions. See Dean v. Pisciotta, 220 La. 725, 57 So.2d 591 (1952); Kuhn v. Stan A. Plauche Real Estate Company, 249 La. 85, 185 So.2d 210 (1966); Executive House Bldg., Inc. v. Optimum Systems, Inc., 311 So.2d 604 (La.App. 4th Cir. 1975), writ denied, 313 So.2d 847 (La.1975). However, we do not find the existence of a conflict between paragraph 3 and paragraph 5 of the agreement. In paragraph 3, the plaintiff plainly assigned and transferred to Allstate any claims or causes of action that he had for the loss of the vehicle described in the agreement. Plaintiff has transferred this property right to Allstate and is no longer the owner of a claim against defendant for the loss of the vehicle. He has been paid for that property right by Allstate and Allstate alone is entitled to assert a claim against Gentilly Dodge for that loss. Paragraph 5 merely reserves to plaintiff the right to enforce any claim resulting from the theft in excess or in addition to the claim for the loss that had been assigned to the Insurer. Those claims as asserted in the petition for loss of contents, inconvenience, rental expense and loss of enjoyment are viable. It is clear that these claims, as well as any others, except the loss of the vehicle, are reserved in paragraph 5 of the agreement.

The right to assert a subrogated claim rests with the subrogee. See LSA-C.C.P. 697. See also, LSA-C.C.P. 698 relating to assignments. Rond v. Sims, 355 So.2d 591 (La.App. 4th Cir. 1978), writ denied, 357 So.2d 1164 (La.1978); Mount Beacon Insurance Company v. Mills, 205 So.2d 144 (La.App. 2nd Cir. 1967); and, Younger v. American Radiator & Standard San. Corp., 193 So.2d 798 (La.App. 3rd Cir. 1967), application denied, 250 La. 368, 195 So.2d 644 (La.1967).

We might add that in addition to the August 18, 1977 subrogation agreement, plaintiff on August 23, 1977 for the same consideration as recited in the subrogation agreement, transferred ownership of the lost van to his insurer, Allstate Insurance Company.

Simply put, the right to assert the claim for the loss of the van rests with the subro-gee, Allstate, and no right exists with plaintiff, irrespective of whether or not Allstate desires to or fails to assert its rights. Plaintiff has transferred his rights and simply has no right to assert for the loss of the van. Accordingly, we find no merit to the first two arguments raised by plaintiff.

We reject also plaintiff’s contention that because Gentilly Dodge was not a party to the subrogation agreement it is not entitled to interpret the agreement in such a way as to obtain an advantage and benefit from it. Although we have no quarrel with the conclusions reached in Perry v. Shockley, 3 La.App. 25 (1925) and Richardson v. Darby, 352 So.2d 725 (La.App. 4th Cir. 1977), cited by plaintiff, reliance by him on LSA-C.C. art. 3077 and those cases is misplaced. These cases and the codal article merely stand for the proposition that where there are several defendants in a law suit and a compromise has been entered into by one of them, the remaining defendants cannot assert the compromise as a bar to plaintiff’s suit against them.

In Richardson v. Darby, supra, the court concluded that one co-defendant could not assert a defense of compromise entered into with plaintiff by a remaining defendant since plaintiff’s cause of action against the co-defendant (who was not a party to the compromise) was based on that defendant’s individual negligence. In Perry v. Shockley, supra, the court concluded that an agreement or compromise between two parties to which a third party was not a party will not bind that third party.

The facts in our case do not fall within the ambit or realm of LSA-C.C. art. 3077 or the Richardson and Perry cases. In the instant case, there is no agreement or compromise of a litigious right between two parties as contemplated in LSA-C.C. art. 3077 or present in the Richardson and Perry cases. This is not a case where a plaintiff is prevented from suing one of several defendants because of an agreement or compromise entered into by the remaining defendant. The instant case involves the transfer of a property right in subrogation and it is of no interest to defendant whether the subrogor or subrogee asserts that right. What is of interest to defendant is that the proper party, who owns that property right of recovery, is the party asserting that right. As pointed out by Gentilly Dodge in argument, if we were to follow the logical extension of plaintiff’s argument, a defendant trespasser in a tort suit could not claim that a plaintiff seeking damage for trespass had sold the property prior to the trespass and no longer owned the property allegedly damaged. Such an extension reaches an untenable result.

Accordingly, we conclude that the subro-gation agreement is binding upon plaintiff’s claim for the loss of the van and defendant is entitled to assert the existence of the subrogation agreement as a bar to plaintiff’s claim for that loss.

Finally, we reject the suggestion by plaintiff that the “collateral source rule”, which prevents the introduction of evidence of collateral sources of recovery by plaintiff is applicable in our case. Plaintiff relies on the language of the court in Central Louisiana Tel. Co. v. Green-Snider Const. Co., 228 So.2d 73 (La.App. 2d Cir. 1969) where the court stated, on rehearing:

“Our statutes do not permit a wrongdoer to take advantage of a collateral source of compensation that may be available to the injured party.”

This cited language is simply not applicable to our case. Gentilly Dodge is not taking advantage of the receipt by plaintiff of a collateral source of compensation. One claim for the loss of the vehicle exists against defendant. That claim has been transferred by plaintiff to his insurer in subrogation. Plaintiff has no right now to assert a claim for that loss. Defendant is not seeking to be exonerated from liability to plaintiff based on receipt by plaintiff of a collateral source of compensation that extinguishes defendant’s liability. For the purposes of the exception of no right of action, defendant’s contention is not that the payment by Allstate to plaintiff extinguishes the obligation but that Allstate now is the proper party to assert that obligation. Again, it makes no difference whether or not Allstate pursues the assertion of its claim. It is Allstate’s determination whether or not to pursue that claim. Allstate’s action or inaction as subrogee cannot lessen or increase plaintiff’s entitlement to recover for the loss of the van.

Accordingly, for the foregoing reasons, we hold that the exception of no right of action was properly maintained insofar as the plaintiff’s claim for the loss of the van. The judgment is affirmed.

'AFFIRMED.

      . LSA-C.C.P. art. 697 reads as follows:
      “Art. 697. Subrogor and subrogee
      An incorporeal right to which a person has been subrogated, either conventionally or by effect of law, shall be enforced judicially by: (1) The subrogor and the subrogee, when the subrogation is partial; or
      (2) The subrogee, when the entire right is subrogated.”

      . LSA-C.C.P. art. 698 reads as follows:
      “Art. 698. Assignor and assignee An incorporeal right which has been assigned, whether unconditionally or conditionally for purposes of collection or security, shall be enforced judicially by:
      (1) The assignor and the assignee, when the assignment is partial; or
      (2) The assignee, when the entire right is assigned.”

      . LSA-C.C. art. 3077 reads as follows:
      “Art. 3077 A transaction made by one of the interested parties is not binding for the others, and can not be opposed by them.”


author: GARRISON, Judge. STOULIG, Judge,

text:
    Daniel D. CUROLE v. EBASCO SERVICES, INC. et al.
    No. 11563.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 7, 1981.
    Adelaide Baudier, Metairie, for plaintiff-appellant Daniel D. Curóle.

      Edmund W. Golden, New Orleans, for defendants-appellees U. S. Fidelity & Guaranty Co. and Grimaldi Plumbing and Heating, Inc.
    Hammett, Leake & Hammett, John A. Stewart, Jr. and F. M. Stoller, New Orleans, for defendants-appellees Louisiana Power & Light Co. and Ebasco Services, Inc.
    Carville & Edrington, William P. Golden, Jr., LaPlace, for defendants-appellees J. A. Jones Const. Co.
    Before GARRISON, CHEHARDY and STOULIG, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court denying plaintiff recovery for injuries sustained by him on August 19, 1976, when he injured his back while delivering an air conditioner compressor at the site of the Waterford III nuclear power plant in Taft, La. Plaintiff filed suit in negligence against the following parties:

1. Louisiana Power' & Light — the landowner
2. Ebasco Services, Inc. — L.P.&L.’s agent for construction of the plant
3. J. A. Jones Construction Co. — a contractor with L.P.&L. and Ebasco
4. Grimaldi Plumbing and Heating Inc. —a subcontractor of Jones

At the time of the accident, plaintiff was employed by Flettrich Environmental Services, Inc. Flettrich was a contractor with Ebasco and L.P.&L. for materials and equipment and a subcontractor through Grimaldi for labor costs.

After a full trial on the merits, the district court rendered judgment in favor of L.P.&L. and Ebasco, dismissing plaintiff’s suit against them. The trial court additionally declared several third-party demands moot in light of the court’s judgment on the principal demand.

From that judgment which we affirm, plaintiff has appealed.

Plaintiff’s truck was parked 60 to 70 feet away from the compressor due to be replaced. The ground was a shell surface and several not yet erected telephone poles were on the ground. Plaintiff was carrying a compressor and stepping over a telephone pole when he felt a “pop” in his back.

The trial court judge found that plaintiff failed to use a handcart provided to him by his employer, that plaintiff disobeyed his employer’s directions to use the handcart on his truck, that, plaintiff knew he needed assistance as evidenced by the prior loading of the compressor on plaintiff’s truck and that plaintiff could have avoided walking over the telephone poles by using an alternate path.

We agree with the findings of the trial judge that plaintiff’s accident was caused solely by his own negligence, and cannot conclude that the trial court was manifestly erroneous. Arceneaux v. Domingue, 365 So.2d 1330 (La., 1978).

For the reasons discussed, the judgment of the district court is affirmed.

AFFIRMED.

STOULIG, J., concurs with written reasons.

STOULIG, Judge,

concurring.

Plaintiff, an employee of Flettrich Environmental Services, Inc., was injured while performing work in fulfillment of his employer’s subcontract with Ebasco, an agent of Louisiana Power & Light (LP&L). Because of this contractual relationship, plaintiff became the statutory employee of the defendant under R.S. 23:1061 and as such his exclusive remedy to be compensated for his job-related injury is restricted to an action for workmen’s compensation benefits. (R.S. 23:1032)

In addition, plaintiff has no right to maintain his suit for damages arising out of the alleged negligence of LP&L as the owner of the property. Louisiana does not recognize the dual capacity doctrine of liability. In Hebert v. Gulf States Utilities Co., 369 So.2d 1104, 1107 (La.App. 1st Cir. 1979) the court held:

“Is the landowner to be held liable in tort for breach of legal obligations when he is also immune from tort actions because he is also the statutory employer of the employee? We find that he cannot. We have reviewed extensively the dual capacity doctrine and find it inapplicable. Even if the doctrine were viable in Louisiana, the allegations of fault against the landowner are really failure to furnish employee a safe place to work.”

Having concluded that the pleadings and evidence in this matter clearly demonstrate that plaintiff has no right of action sounding in tort against the defendant, this court, acting under the authority of C.C.P. art. 927, should declare this conclusion as an additional basis for affirmation of the judgment of the trial court.

AFFIRMED.

      . In Gray v. Louisiana Power and Light Company, 247 So.2d 137 (La.App. 4th Cir. 1971) this court held that the construction and maintenance of plants for the transmission of electricity was authorized by the charter of Louisiana Power & Light Company and that employer-employee relationships arising out of contracts in pursuance of the objects of its charter would fall within the purview and scope of the workmen’s compensation statutes.

      . Rosenthal v. Caballero, 309 So.2d 797 (La.App. 4th Cir. 1975).


author: CHEHARDY, Judge.

text:
    Cornelius ENCLARDE and Sidney Williams v. Louis ROACH and Charles Christen, III.
    No. 11644.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 7, 1981.
    Darleen M. Jacobs, New Orleans, for plaintiffs-appellants.

      Beard, Blue, Schmitt, Mathes, Koch & Williams, Melvin W. Mathes, New Orleans, for Charles Christen, III, defendant-appel-lee.
    Before GARRISON, CHEHARDY and BARRY, JJ.
   CHEHARDY, Judge.

Plaintiffs, Corneluis Enclarde and Sidney Williams, appeal a trial court judgment in favor of defendant Charles H. Christen, III, dismissing the plaintiffs’ case at their costs.

Judgment was also rendered regarding a consolidated case in favor of plaintiff Charles H. Christen, III, and against defendants, Louis Roach and American Fidelity Fire Insurance Company, jointly and in solido, in the sum of $100, together with legal interest from the date of judicial demand, until paid, and for all costs of the proceedings; and in favor of plaintiff, Hanover Insurance Company, and against defendants, Louis Roach and American Fidelity Fire Insurance Company, jointly and in solido, in the full and true sum of $1,057.50, together with legal interest from the date of judicial demand until paid, and for all. costs.

This case involves a collision between two vehicles which occurred on St. Bernard-Highway on the evening of December 26, 1976. The plaintiffs were passengers in a Ford operated by Roach, which was struck on the left rear side by a Chevrolet owned and driven by Christen and also occupied by his girl friend Darlene Couture, who, at the time of trial, was then married to Christen. Christen’s vehicle was damaged on the right front fender and bumper.

Although no reasons for judgment were given by the district court judge, it is apparent that he found the plaintiffs were negligent in causing the accident, and the defendant Christen was free from negligence or that any negligence he might have been guilty of was not a proximate cause of the accident. Such a conclusion is one of fact on the part of a trial court judge, as are his evaluations of credibility when there is conflicting testimony, and an appellate court cannot disturb such conclusions in the absence of manifest error. Canter v. Koehring Company, 283 So.2d 716 (La.1973).

In the present case the defendant Christen testified he was 11 or 12 car lengths away from the Roach vehicle when he first noticed it ahead, traveling in the same direction as his car on the shoulder of the highway. Christen further testified that when he was approximately three or four car lengths away from the other automobile, it pulled out into the highway and, although he hit his brakes, he had “no alternative but to hit him.”

Christen also said it had been raining that night, that he was proceeding within the speed limit (at approximately 35 to 40 miles per hour), and that he blew his horn several times when he first noticed the Roach vehicle on the shoulder of the road.

George Estopinal, a passenger in a vehicle which was traveling in the opposite direction as the cars involved in the collision, said when he first saw both vehicles one was on the shoulder of the highway and that the latter vehicle entered the roadway in front of the other car, the collision then occurring “momentarily.” He added that Christen’s automobile was no farther than 15 feet away from Roach’s vehicle when the Ford came onto the highway. Both Christen and Estopinal also testified that some portion of Roach’s car was still on the shoulder of the highway at the time of impact.

Miss Couture also confirmed the testimony of Christen and Estopinal, stating the defendant was traveling at approximately 35 to 40 miles an hour when she and Christen first noticed the Roach vehicle a block ahead moving along the right hand shoulder of the highway. She added that when they were only two car lengths away from the other vehicle it began moving slowly into the street, and the collision occurred a few seconds later. She also said, as did Christen, that he had begun blowing his horn as soon as he spotted the other vehicle on the shoulder of the road.

Totally different versions of the accident, however, were given by Enclarde and Wil-Hams, passengers in the Roach car. En-clarde said the Roach vehicle was completely on the highway before the accident occurred, that the Ford was struck on the rear and that it was stopped and getting ready to make a left-hand turn at the time of impact. He also said he heard no horn blowing prior to the crash. In recounting the stops that had been made by his party before the accident, Enclarde also told of having consumed at least six beers and said Roach had also drunk six to eight beers.

Williams, on the other hand, testified the Ford in which he was traveling was “just about to stop to make the left turn” when the accident occurred and that the vehicle was completely on the highway in its lane of traffic for three or four minutes before it was struck in the back by the other car.

In reviewing the testimony of the above parties in its entirety, we cannot find the district court judge was in manifest error in giving more weight to the account of the accident given by Christen, Couture and Estopinal, rather than that given by Enclarde and Williams, nor can we conclude he erred in concluding that the negligence of the driver of the vehicle in which the plaintiffs were riding was the sole proximate cause of the accident rather than any negligence on the part of Christen.

Neither can we find merit in plaintiffs’ assignment that the trial court erred in not allowing an oral statement given by Christen to his own insurer into evidence for purposes of credibility. The cases cited by plaintiffs in support of this contention dealt with situations where the statement was given to the opposing party's insurance company (Galiano v. Ocean Accident & Guarantee Corporation, 55 So.2d 641 [La.App. Orl. 1951]), or where it was impossible to tell from a reading of the case exactly to which party’s adjustor the statement had been given (April v. Millers Mutual Fire Insurance Co. of Texas, 273 So.2d 50 [La.App. 4th Cir. 1973]; Killian v. C & H Transportation Company, Inc., 283 So.2d 799 [La.App. 2d Cir. 1973]) or which concerned a prior statement made by a witness who was not a party to the suit (Schexnayder v. Zurich Insurance, 257 So.2d 764 [La.App. 1st Cir. 1972]).

In the present case, however, the statement was one of a party given to his own insurer prior to trial, and we find the most applicable law regarding its admissibility in Bordelon v. Phoenix Insurance Company, 244 So.2d 919 (La.App. 1st Cir. 1971), wherein the court said at pages 921-922:

“Plaintiffs further contend that they were prejudiced at trial by the refusal of the trial judge to compel production by defendants of a written statement given by Miss Efferson to Phoenix a few days after the accident. The request was made for the first time in the waning stages of the trial when Miss Efferson' was called on cross-examination by plaintiffs and she admitted having given such a statement. They rely on La.C.C.P. Art. 1492, relative to depositions and motions for discovery and production of documents. The pertinent part of that Article reads as follows:
‘Upon motion of any party showing good cause therefor, and subject to the provisions of Article 1452, the court in which an action is pending or in which the judgment was originally rendered may:
(1) Order any party to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated documents, papers, books, accounts, letters, photographs, objects, or tangible things, not privileged, which constitute or contain evidence relating to any of the matters within the scope of the examination permitted by Article 1436 and which are in his possession, custody, or control; * * *’
“The defendants contend that the statement in question is privileged under La.C.C.P. Art. 1452, which restricts Article 1492 and the pertinent part of which reads as follows:
‘Art. 1452. Orders for the protection of parties and deponents
< sjc * *
‘The court shall not order the production or inspection of any writing obtained or prepared by the adverse party, his attorney, surety, indemnitor, expert, or agent in anticipation of litigation or in preparation for trial unless satisfied that denial of production or inspection will unfairly prejudice the party seeking the production or inspection in preparing his claim or defense or' will cause him undue hardship or injustice. * * *’ "
“However, we are of the opinion that the privilege of Article 1452 does not become an issue unless and until a proper and timely request for the document has been made. Indeed, under Article 1492, the moving party must show good cause for requiring the production of a document held by an adverse party and the granting of such a motion is within the discretion of the trial judge by the very language of the Article. Even if plaintiffs’ request for the statement during the cross-examination of Miss Efferson may be construed as a motion to compel production, and without deciding whether such a motion is necessarily a pre-trial discovery device or contradictory in nature, the only reason for plaintiffs’ request was simply the apparent hope that Miss Efferson’s prior statement would not be entirely consistent with her testimony at trial. Inasmuch as the trial judge described her as a sincere and credible witness and found that the physical evidence supported her testimony, it is clear that the judge did not share that suspicion and did not consider that good cause had been shown for compelling the defendants to produce the prior statement. We cannot say that a denial of the request under these circumstances constituted an abuse of the discretion vested in the trial judge by C.C.P. Art. 1492.”

Similarly in the present case, we cannot find the district court judge’s refusal to admit the prior statement of Christen to be an abuse of discretion on his part and, therefore, presents no grounds for reversal or remand.

For the reasons expressed herein, the trial court decision is affirmed.

AFFIRMED.


author: BARRY, Judge.

text:
    Bryan J. REED v. The BANK OF NEW ORLEANS & TRUST COMPANY.
    No. 11781.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 7, 1981.
    Reed & Reed, Floyd J. Reed, J. D., New Orleans, for plaintiff-appellant.

      Sessions, Fishman, Rosenson, Boisfon-taine & Nathan, J. David Forsyth, New Orleans, for defendant-appellee.
    Before GARRISON, CHEHARDY and BARRY, JJ.
   BARRY, Judge.

Plaintiff sued the defendant bank seeking return of alleged usurious interest paid on a promissory note which he personally endorsed on behalf of a corporation he served as president. Defendant filed several exceptions including no cause of action and lis pendens. The District Court dismissed plaintiff’s lawsuit on the exception of no cause of action from which plaintiff now appeals.

The claim of usury is defeated when the facts conflict with the provisions of LSA R.S. 12:703 which provides:

Notwithstanding any other provisions of the law of this state to the contrary, any debtor that is a domestic corporation ... may agree to pay interest in excess of the maximum rate of conventional interest authorized by the laws of this State ... and as to any such agreement such debt or corporation ... shall be prohibited from asserting a claim or defense of usury or of the taking of interest in excess of the maximum rate of conventional interest, and any person .. . whatsoever signing as co-maker, guarantor or endorser for such debtor corporation ... shall also be prohibited from asserting any such claim or defense.

Reed Printing & Custom Graphics, Ltd. was the original borrower which agreed to pay defendant interest in excess of the legal maximum rate. R.S. 12:703 is clear and unambiguous in providing that whether plaintiff signed as co-maker, guarantor or endorser for the debtor corporation he “shall also be prohibited from asserting any such claim or defense”. Accordingly, the trial court’s dismissal of plaintiff’s lawsuit on the peremptory exception of no cause of action was proper.

Defendant’s plea of Lis Pendens also has merit since there is pending in this court an appeal involving the same promissory note. In that litigation usury was raised as a defense by the corporate borrower and its personal endorser (plaintiff here). The District Court rejected the usury defense and rendered judgment in favor of the bank, presenting on that appeal the same issue discussed herein.

However, we find it sufficient to concur that plaintiff failed to state a cause of action and the judgment of the District Court is affirmed. All costs of this appeal to be paid by plaintiff/appellant.

AFFIRMED.


text:
    Richard KOSTRZEWA v. Woodrow W. WILSON, Richard Wilson, and Allstate Insurance Company.
    No. 11800.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 7, 1981.
    Writ Denied May 29,1981.

      Landwehr & Foley, William P. Curry, Jr., New Orleans, for plaintiff-appellee.
    Donovan & Lawler, Christopher E. Lawler, Metairie, for defendants-appellants.
    Before GARRISON, CHEHARDY and BARRY, JJ.
   BARRY, Judge.

Defendants appeal a jury verdict which awarded $25,500.00, including medical expenses of $327, to plaintiff for injuries he sustained in an automobile accident. Liability was admitted and the sole issue is the amount of the jury award.

Following the accident plaintiff went to the Methodist Hospital emergency room for treatment as an out-patient. Nine days later he was examined by Dr. Hiromu Shoji, an orthopedist, who testified that he found tenderness over the lower neck region with decreased flexibility toward the left side and a slight to moderate degree of muscle spasticity on the right side. Dr. Shoji advised conservative treatment consisting of a cervical collar, home heat treatment, plus prescribed pain pills and muscle relaxants.

Plaintiff was seen by Dr. Shoji four times during the following four months, after which he gained full range of cervical spine motion but continued to complain of neck pain. Plaintiff saw Dr. Shoji on two additional visits when improvement was noted in the cervical area, however, extension of the neck still caused pain. Conservative treatment was continued although plaintiff testified that the cervical collar was used intermittently because it was cumbersome while plaintiff was teaching class.

Seven months after the accident, plaintiff moved to Tennessee. During the ensuing nine months, plaintiff testified he continued to experience neck pain and was treated by a Dr. Henry Williams, but the record is void of any diagnosis or treatment.

The issue here of possible jury abuse of discretion by making an excessive award should be scrutinized under the guidelines of Reck v. Stevens, 373 So.2d 498 (La.1979). Our inquiry is whether the award was proper for these particular injuries and their effect upon this particular plaintiff. The medical record begins nine days after the accident.

September 14,1977 — Tenderness over the C-3 to C-6 right side area of the neck, decrease of motion, increased pain upon maximum tilting of the neck, muscle spasticity of a slight to moderate degree. Muscle relaxants and pain pills prescribed with heat application and use of the cervical collar.
September 28,1977 — Improvement of the stiffness but discomfort in the cervical area and a continuation of the same treatment.
October 19,1977 — Tenderness at the C5— C6 level upon maximum extension and rotation.
November 16, 1977 — Rotation on extension improved but neck pain persists. Same treatment to continue with a prognosis of fair.
December 21, 1977 — Reoccurrence of right side neck pain and a slight awkwardness of balance.
January 18, 1978 — Sporadic pain at base of skull occasionally.
March 1, 1978 — Reoccurrence of pain in the mid-neck with mild tenderness on the right side.

Plaintiff saw the Tennessee physician three times during the ensuing nine months, but nó testimony was presented explaining these visits.

Plaintiff testified that he missed work two or three days a week for the first three weeks and periodically thereafter. During the first month of pain he used the prescribed cervical collar occasionally because he was lecturing dental students and the collar was a handicap: during the two months thereafter the collar was worn almost daily and periodically thereafter. It was plaintiff’s testimony that he continued to experience neck and lower back pain to the date of trial which was two and one-half years after the accident. Dr. Shoji testified that it was not unusual for the neck pain to persist this length of time.

Plaintiff’s wife corroborated her husband’s testimony as to the persistence of neck pain and his problems following the accident.

Any award, particularly from a jury, is difficult to evaluate for this type of injury. Plaintiff’s demeanor, the believability of his experiences, the medical evidence— all play an integral part in each juror’s resolution of the amount to be awarded for pain.

It’s easy to conclude here that the jury believed and was impressed by plaintiff’s testimony, particularly the amount of his pain and its duration and effect during the thirty months prior to trial, plus the possibility the pain would continue indefinitely thereafter. Also, defendants admit-, ted liability and the jury did not hear any facts surrounding the accident. Further, defendants presented no witnesses or medical evidence to rebut or contradict plaintiff.

The award for this victim based upon this medical record could be considered in the upper range, but we feel the quantum is within permissible limits.

The lower court denied a motion for re-mittitur or a new trial, and we fail to find manifest error or abuse of discretion. Accordingly, the judgment of the District Court is affirmed with appellant to pay all costs of this appeal.

AFFIRMED.


author: HUGHES, Judge. GULOTTA, Judge,

text:
    Alice Miller, wife of/and Zigmund BIELAWSKI v. Alvin LANDRY, Jr.
    No. 11690.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 7, 1981.
    Writ Denied May 18,1981.

      Charles E. McHale, Jr., New Orleans, for plaintiffs-appellants.
    Constant G. Marquer, Jr., New Orleans, for defendant-appellee.
    Before GULOTTA, BOUTALL and HUGHES, JJ.
   HUGHES, Judge.

This is an action for specific performance of an agreement to buy and sell immovable property. The trial court refused to grant specific performance and plaintiff appealed. We affirm. The litigation brings us into confrontation with the issue of whether a waiver of warranty of title sufficiently protects a seller from recourse, specifically the right of return of the purchase price from the purchaser where the purchaser is aware of a defective title. The purchaser was willing to take the property “as is and without legal warranty”, however, the seller insisted that the act of sale proposed by the purchaser include an exculpatory clause providing that the property be sold “without legal warranties, without recourse and not even for the return of the purchase price.”

On May 8, 1978, Mr. and Mrs.'Zig-mund Bielawski entered into a written agreement to purchase a lot from Alvin J. Landry, Jr. for a price of $15,000. The agreement indicated that the act of sale was to be passed on or before June 30,1978. As is frequently provided in these agreements, the contract provided for a sixty-day extension for passage of the act of sale if curative title work was required. Additionally, the contract stated that:

The seller shall deliver to purchaser a merchantable title, and his inability to deliver such title within the time stipulated herein, shall render this contract null and void, reserving unto purchaser the right to demand the return of the deposit from the holder thereof and to recover actual costs incurred in processing of sale and reserving unto agent the right to recover commission. (Emphasis added) In the event the seller fails to comply with this agreement for any other reason, within the time specified, the purchaser shall have the right either to demand the return of his deposit in full plus an equal amount to be paid as penalty by the seller, or the purchaser may demand specific performance, at his option.

Before the scheduled date for passing the actual sale, a title examination by the plaintiff’s attorney revealed that Landry had obtained title to the property in a 1974 tax sale. After the validity of such a title was questioned, the defendant filed suit against the tax debtor, a Mrs. Estelina C. Keller, and her heirs, and obtained a judgment confirming and quieting the tax title. Subsequent investigation by the plaintiff’s attorney showed however, that the judgment confirming Landry’s tax title was defective because Mrs. Keller’s husband was not named as a defendant, a legal description of the property was omitted from the judgment of confirmation and, the confirmation suit itself was filed before the expiration of the five year preemption period for quieting tax titles under Art. X, Section 11 of the 1921 Constitution and Art. VII, Section 25 of the 1974 Constitution of Louisiana.

Despite the fact that both parties considered Landry’s tax title to be unmer-chantable, arrangements were made for the passing of an act of sale on July 26, 1978. The conveyance instrument proposed by the the buyers included only the waiver of warranty language suggested by them. A dispute arose when the Bielawskis refused to include the broader exculpatory recitals insisted upon by Landry. The act of sale was not passed and this suit for specific performance followed.

After trial of the matter, which largely consisted of stipulations of facts and the essentially undisputed testimony of the Bie-lawskis’ attorney, the trial court entered judgment in favor of Landry. In written reasons, the trial judge indicated that it was his opinion that the vendor, Landry, had a valid reason for not signing the act of sale unless the Bielawski’s took the property without recourse and also waived their right to ask for the return of the purchase price in the event they should at some time in the future be legally vested with such a right. The trial judge was of the view that the vendee’s proposed “no warranty” clause, while offering Landry some protection, did not protect him completely in view of LSA-C.C. art. 2505, which provides that:

Even in case of stipulation of no warranty, the seller, in case of eviction, is liable to a restitution of the price, unless the buyer was aware, at the time of the sale, of the danger of the eviction and purchased at his peril and risk.

According to the trial judge, Landry had as much justification for wanting his additional “no recourse” language included in the act of sale as the Bielawskis had for demanding that the proposed additional language be excluded. We are of the view that the trial judge was correct in dismissing the vendee’s suit for specific performance.

The written agreement between these litigants specifically provides that their contract would become “null and void” if the seller was unable to deliver a merchantable title within the time stipulated. It provides further that the purchaser in such a situation has the right only to demand return of the deposit and to recover only the actual cost incurred. It also provides that specific performance may be demanded by the purchaser if the seller “fails to comply with the agreement for any other reason.” (Emphasis ours.) It is our view that under this contract, inability to deliver a merchantable title within the specified period had the effect of placing the parties in the same position as if no contract to purchase had ever been entered into. We view the seller’s inability to deliver a merchantable title as constituting a failure of a suspensive condition to the agreement and we believe that no rights flowed to either party upon that failure except those provided for in the contract itself.

In Lear v. Great Nat. Development Co., 215 La. 749, 41 So.2d 668 (1949), concerning a contract in which vendors were to furnish a valid record title, it was held that the vendee could not be compelled to accept a title to land upon which a claim rested and which was suggestive of future litigation. Conversely, in this case, in view of the contractual requirement that the vendor deliver a merchantable title, we hold that the vendee cannot compel the vendor to deliver a defective title, even without warranty and also without resolution of the problem presented by the provisions of LSA-C.C. art. 2505.

The Bielawskis argue that the provision in the contract that the seller is required to deliver to the purchaser a merchantable title is a provision for the exclusive benefit of the purchaser and that they were free to waive the merchantability requirement and insist on transfer of title. According to the Bielawskis, the election to consider the agreement null and void or demand specific performance rests exclusively with them. In support of this argument the Bielawskis draw an analogy to conditional financing clauses sometimes found in real estate contracts which provide that a contract to purchase realty on credit shall be null and void it the purchaser is unable to obtain financing. Citing Felder v. Terry, 351 So.2d 244 (La.App. 4th Cir. 1977) the Bielawskis point out that a provision conditioning the sale on the purchasers’ ability to make a mortgage loan is a suspensive condition for the sole benefit of the purchaser who may waive it and elect to pay cash for the property.

It is our opinion that the Felder case concerning conditional financing is inappo-site to this case. In conditional financing cases, the vendee may compel a cash sale of the property because the rights and obligations of the parties are clear and remain unchanged. The vendor in such a situation incurs no prejudice since he receives the full purchase price in cash and other provisions of the agreement are not affected thereby. On the other hand, in this case, the rights and obligations of the parties are not clear, even if the Bielawskis accept title “as is and without warranty.” LSA-C.C. art. 2505 provides that even in a case of stipulation of no warranty, the seller in case of eviction is liable for a restitution of the purchase price, unless the buyer was aware at the time of the sale of the danger of the eviction and purchased the property at his peril and risk. Only actual, and not constructive knowledge will suffice to defeat a warranty action when a sale is made with an exception to the warranty clause. Collins v. Slocum 317 So.2d 672 (La.App. 3rd Cir. 1975). See also, “Warranty Against Eviction in the Civil Law: Limitations on the Extent of the Vendee’s Recovery.” 23 T.L.R. 154 (1948).

Even though it is clear in this case that the Bielawskis had actual knowledge of the unconfirmed nature of Landry’s tax title and even though the signing of the proposed act of sale tendered by them would probably bar any action for a refund of the purchase price in the event of an eviction arising from the imperfect nature of the tax title, there may be other grounds for eviction apart from the tax title defects. Conceivably, other problems might surface in the future that might cause the Bie-lawskis. or someone taking title from them to seek a refund of their purchase price from Landry. To compel Landry to convey the unmerchantable property without warranty only under these circumstances does not assure Landry that the purchaser will have no recourse at a later time. If some unanticipated problems force the Bielawskis into bankruptcy, a trustee in bankruptcy might be able to litigate the warranty issue. Unlike conditional financing cases, the rights and obligations of the parties in this case remain uncertain.

In seeking specific performance of the sale, the Bielawskis in effect are asking that we reform the contract to sell. Despite the clear wording of their agreement which provides that the agreement shall be rendered null and void upon the vendor’s inability to convey merchantable title, the Bielawskis are asking the court to write out of the agreement that provision and substitute in its place a clause whereby the vendees may compel a sale without warranty. We are of the opinion that reformation of instruments is available only to correct mistakes or errors when the written contract does not express the true agreement between the parties. Fontenot v. Lewis, 215 So.2d 161 (La.App. 3rd Cir. 1968); Pipes v. Pipes, 343 So.2d 329 (La.App. 2nd Cir. 1977), writ denied, 345 So.2d 904 (1977). We are of the opinion that Landry and the Bielawskis had no meeting of the minds, other than nullity, regarding the recourse available in the event merchantable title could not be delivered within the time specified. Under the circumstances, the agreement between these parties, by its own terms, is null and void. We are of the opinion that clear and unambiguous agreement between competent majors is the law between the parties and accordingly, the judgment of the trial court is affirmed.

AFFIRMED.

GULOTTA, J., dissents and assigns reasons.

GULOTTA, Judge,

dissenting.

I respectfully dissent.

I interpret the contractual provision that the seller shall deliver to the purchaser a merchantable title to be for the benefit of the purchaser. As pointed out by the Bie-lawskis in argument, this stipulation is in the nature of a suspensive condition anala-gous to a conditional financing clause providing that a contract to purchase realty on credit shall be null and void if the purchaser is unable to obtain financing. See Felder v. Terry, 351 So.2d 244 (La.App. 4th Cir. 1977), which held that a purchaser may waive the financing clause for his benefit and pay cash. Likewise, in our case, the requirement that Landry warrant his title is a suspensive condition for the Bielawskis’ benefit and they are entitled to waive the provision and accept title with knowledge of Landry’s unconfirmed tax title.

Because I conclude the merchantability clause is for the Bielawskis’ benefit and may be waived by them, I am not persuaded by Landry’s argument that the contract became null and void and could not be enforced by either vendor or vendee upon discovery that his title was not merchantable. Although it is true that the contract provides that the seller’s inability to deliver a merchantable title within the specified period shall render the contract null and void, there is no language in the contract limiting the purchaser to that remedy alone and the contract does not explicitly rule out an election to waive the merchantability requirement and knowingly accept a defective title.

I also reject Landry’s argument that the inclusion of the broader language is necessary in view of LSA-C.C. art. 2505. Although LSA-C.C. art. 2505 provides that even in a case of stipulation of no warranty, the seller in case of eviction is liable for restitution of the purchase price, there is a proviso: “unless the buyer was aware, at the time of the sale, of the danger of the eviction, and purchased at his peril and risk.” The Louisiana Supremé Court, interpreting this codal article, held in Richmond v. Zapata Development Corp., 350 So.2d 875 (La.1977) that knowledge of a danger of eviction will not prevent the purchaser from recovering the purchase price upon disturbance of his possession, in the absence of a stipulation of non-warranty in the act of sale.

In our case it is clear that the Bielawskis had actual knowledge of the uncertainty of Landry’s tax title. According to the Richmond case, a stipulation of non-warranty under these circumstances would have sufficiently protected the seller from a suit by plaintiffs for return of the purchase price in the event plaintiffs’ peaceful possession may have been disturbed.

As pointed out by the Bielawskis, Landry’s proposed exculpatory clause confers upon a seller greater insulation against future recourse than would exist if there were no defect in the title. If we assume that no defect were discovered, title would have been warranted. With the discovery of the defect the seller is demanding greater protection than he would be entitled to if the act of sale were passed with warranty. Furthermore, purchaser could very well have not disclosed the defect and obtained title with warranty. The result of the majority’s holding is that a purchaser who notifies a vendor of a title defect is in a worse position than if he remains silent and takes a defective title. Moreover, a seller by demanding the sale be without recourse or refund will be placed in a more favorable position when he transfers a deficient title than when he transfers a merchantable title. I therefore find no merit to Landry’s position. A defect exists in the title. Purchasers are aware of the defect and they have waived the warranty. The seller is entitled to no further protection.

Accordingly, I would reverse the trial court’s judgment and order specific performance. I therefore respectfully dissent.


author: EDWARD J. STOULIG, Judge Pro Tern.

text:
    Juanita and Rainer LANDAU v. W. E. GROVES.
    No. 11960.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 7, 1981.
    David E. Hogan, New Orleans, for defendant-appellee.
    Paula Perronetardo, New Orleans, for plaintiff s-appellants.
    Before REDMANN, STOULIG and McBRIDE, JJ.
   EDWARD J. STOULIG, Judge Pro Tern.

Plaintiffs, Juanita and Rainer Landau, appeal a summary judgment dismissing their suit for specific performance of an option to buy property at 437 Esplanade Avenue, New Orleans, Louisiana, granted by landlord W. E. Groves in a contract of lease dated October 3, 1977. We affirm.

This case was consolidated with a suit filed by Groves against plaintiffs on March 2, 1979, in which the landlord demanded past due rental and preservation of the lessor lien on movables in the leased premises. In that same proceeding, on March 30, 1979, Groves filed a rule for eviction and obtained a judgment on April 27,1979. No appeal was taken from that judgment of eviction.

On April 23,1979 plaintiffs filed this suit which was dismissed by summary judgment on July 13, 1979.

Summary judgment is appropriate if the pleadings, exhibits and attachments demonstrate there is no genuine issue of material fact and mover is entitled to a judgment as a matter of law. C.C.P. art. 966. Summary judgment may not be based on testimony at a hearing but must rest on pleadings, depositions, affidavits, interrogatories, exhibits or appropriate documentary evidence. Fisher v. Cash Grocery and Sales, 316 So.2d 872 (La.App.3rd Cir. 1975).

In this case a hearing was held and the introductory note of evidence states it was a hearing on a rule for eviction. Because the judgment of eviction had been rendered some two months before this hearing and the motion for summary judgment set for trial the same day as the testimony in question was taken, we assume it was introduced in connection with the motion for summary judgment. For the purpose of review we ignore the testimony as irrelevant and rest our affirmance on the documentary supports.

In the lease agreement the landlord reserved the following options in the event of a tenant breach:

“Should the Lessee at any time violate any of the conditions of this lease, or discontinue the premises for the purpose for which they are rented, or fail to pay the rent, water bill, or other expenses assumed under this lease, punctually at maturity, as stipulated; or upon the adjudication of Lessee in bankruptcy, the appointment of a receiver for Lessee, or the filing of a bankruptcy, receivership or respite petition by the Lessee; or upon Lessee’s suspension, failure or insolvency; and should such violation continue for a period of 90 days after written notice has been given Lessee, then, at the option of the lessor, the rent for the whole unexpired term of this lease shall at once become due and exigible; and Lessor shall have the further option to at once demand the entire rent for the whole term, or to immediately cancel this lease, or to proceed for past due installments only, reserving its right to later proceed for the remaining installments, all without putting Lessee in default, Lessee to remain responsible for all damages or losses suffered by Lessor, Lessee hereby assenting thereto and expressly waiving the legal notices to vacate the premises.”

The quoted provisions were called to the Landaus’ attention by letter of October 23, 1978 from Groves’ attorney because at that writing the tenants were $3,000.00 in arrears in rental payments.

Apparently this produced no result because on March 30, 1979 Groves served on the Landaus a five-day notice to vacate for nonpayment of $7,000.00 in rent due from August 1,1978 through March 31,1979. On March 30,1979, in the proceeding previously filed by Groves for unpaid rent, the landlord filed a rule for eviction. After the hearing on the rule for eviction heard April 20, 1979, at which it was developed plaintiffs only paid $500.00 of the admittedly owed $7,000.00 arrearage, judgment of eviction was rendered on April 27,1979 and the tenants failed to appeal suspensively or de-volutively. The delay for a devolutive appeal expired July 6, 1979 and at this time the judgment of eviction which cancelled the lease agreement became final.

Lessees sued to enforce their option rights under the lease by a suit for a specific performance, which was met by the lessor’s motion for summary judgment based on the prior judgment of eviction.

The lease and option to purchase are a part of the same contract and are inseparable. It therefore follows that the existence of the option rights are dependent upon the lease being in full force and in effect at the time they are sought to be exercised. Once the lease is terminated, as in this instance by eviction, all unexercised option rights are extinguished.

We conclude that if the Landaus desired to preserve their option rights under the lease they would have had to perfect a devolutive appeal to prevent its cancellation becoming finally adjudicated. This they failed to do. Reaching this result we obviate the need to consider the effect of nonpayment or tender of performance by plaintiffs on the option clause until after the landlord filed the rule for eviction.

We rest our affirmance of the summary judgment on the documentary evidence before us in the consolidated cases.

For the reasons assigned the judgment appealed from is affirmed.

AFFIRMED.

      . By order dated May 3, 1979 the case of Juanita and Rainer Landau v. W. E. Groves, Docket No. 79-5920 of the Civil District Court, Parish of Orleans, was consolidated with the case of W. E. Groves v. Rainer, and Juanita Landau, Docket No. 79-3079 of the Civil District Court, Parish of Orleans.

      . C.C.P. art. 4735 allows a suspensive appeal if the tenants file under oath an affirmative defense to the eviction and perfect the appeal within 24 hours of judgment.

      . In Ductoe v. Callico, 307 So.2d 642 (La.App.4th Cir. 1974) this court recognized a tenant’s right to devolutively appeal a judgment of eviction, pointing out the delays for appeal set forth in C.C.P. art. 2087 applied.

      . Amand v. Zerangue, 389 So.2d 804 (La.App.3rd Cir. 1980); Smith Enterprises, Inc. v. Borne, 245 So.2d 9 (La.App.1st Cir. 1971).


author: EDWARD J. STOULIG, Judge Pro Tem.

text:
    Herbert O. JOHNSON v. SCHWEGMANN BROS.
    No. 11972.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 7, 1981.

      McDonough & McDonough, Birch P. McDonough, New Orleans, for plaintiff-ap-pellee.
    C. Monk Simons, III, New Orleans, for defendant-appellant.
    Before REDMANN, STOULIG and McBride, jj.
   EDWARD J. STOULIG, Judge Pro Tem.

Defendant, Schwegmann Bros. Giant Super Markets, Inc., has appealed a judgment awarding plaintiff Herbert Johnson $1,000.00 in damages for wrongfully detaining plaintiff in connection with a suspicion of theft incident — shoplifting. Plaintiff answered the appeal, seeking an increase in quantum.

On January 9, 1979 plaintiff bought a 69-cent bag of ice from the Schwegmann store on.Broad Street in New Orleans but failed to follow the customary checkout procedure. While waiting in line to pay for the merchandise, plaintiff noticed the cashier was waiting for the approval of a check given by a customer who was ahead of him in the line. Apparently the supervisor with authority to approve the check was in another part of the store. When he saw the line was not moving, he told the cashier he was in a hurry and asked her to accept one dollar, which was more than the value of the ice, so that he could leave. She agreed.

When plaintiff reached the parking lot two security officers employed by Schweg-mann stopped him to ask if he had paid for the ice. He could not produce a receipt but volunteered to return to have the cashier verify his payment. The three returned to the cashier who did vouch for the truthfulness of plaintiff’s statement. All agree on these facts; what happened later is disputed.

As plaintiff and his witnesses tell it he was forcibly detained in Schwegmann’s security office after the cashier had confirmed his payment for the merchandise. As the defendant’s employees explained it plaintiff became abusive, caused a disturbance, threatened to sue and insisted that he be taken to the manager in order to complain about the incident. He voluntarily accompanied the security guards to the office for this purpose.

The trial judge resolved the credibility issue in plaintiff’s favor and we can find no basis for concluding this factual finding to be manifestly erroneous or clearly wrong. Therefore, under the rules of appellate review expressed in Canter v. Koehring Company, 283 So.2d 716 (La.1973) and Arceneaux v. Domingue, 365 So.2d 1330 (La.1978), we are required to accept the factual finding of the trial court to the effect that plaintiff was detained by defendant’s employees after all doubt was removed that he had in fact paid for the ice he was suspected of stealing. Until the cashier vouched for his payment the Schwegmann employees were acting within the permissible scope of C.Cr.P. art. 215 which provides in part:

“A peace officer, merchant, or a specifically authorized employee of a merchant, may use reasonable force to detain a person for questioning on the merchant’s premises, for a length of time not to exceed sixty minutes, when he has reasonable cause to believe that the person has committed a theft of goods held for sale by the merchant, regardless of the actual value of the goods. The detention shall not constitute an arrest.
“A peace officer may, without a warrant, arrest a person when he has reasonable grounds to believe the person has committed a theft of goods held for sale by a merchant, regardless of the actual value of the goods. A complaint made to a peace officer by a merchant or a merchant’s employee shall constitute reasonable cause for the officer making the arrest.”

This section permits the storeowner to protect his property if the person detained acts in such a manner to create suspicion of theft in the mind of a reasonable man. C.Cr.P. art. 215 Comment (e) points out the storeowner acting reasonably is immune from civil liability. In Brown v. Hartford Ins. Co., 370 So.2d 179 (La.App. 3rd Cir. 1979) the court held the storeowner’s liability rests on the reasonableness of the actions of the store employees under the circumstances and not on the guilt or innocence of the victim.

In the case before us the defendant’s employees could no longer claim the immunity afforded by C.Cr.P. art. 215 once it was established there was in fact no theft of Schwegmann’s merchandise. Detention beyond the point of plaintiff’s exculpation was wrongful.

Plaintiff answered the appeal seeking an increase in damages to $3,500.00. We find no abuse of the “much discretion” in assessing damages vested in the trial court by C.C. art. 1934(3) and therefore the award of $1,000.00 is affirmed.

For the reasons assigned the judgment appealed from is affirmed, and appellant is to bear all costs of the appeal.

AFFIRMED.


text:
    Michael A. CENAC v. ZURICH INSURANCE COMPANY.
    No. 11988.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 7, 1981.
    Trudy H. Oppenheim, New Orleans, for plaintiff-appellant.
    Montgomery, Barnett, Brown & Read, S. Frazer Rankin, New Orleans, for defendant-appellee.

      Before KLIEBERT, STOULIG and BAILES, JJ.
   EDWARD J. STOULIG, Judge Pro Tem.

Plaintiff, Michael A. Cenac, injured in a pedestrian-dump truck accident, appealed a judgment dismissing his claim against the Zurich Insurance Company, liability insurer of defendant, Archie Campbell, Sr.

On July 10, 1978, plaintiff was employed as a civil engineer at a commercial construction site in New Orleans East where, among other things, he acted as a spotter. It is the duty of a spotter to direct loaded dump trucks from the street to the dump site on the property. On the day of the accident he had been working approximately two hours and received 15 loads of sand when Campbell arrived in his truck. Because the land was not firm Campbell was directed through a section overgrown with weeds, the most solid part of the “coffee grounds”, and was required to keep his truck moving at all times so he would not get stuck.

Campbell first maneuvered his truck perpendicular to the property line and, from that point Cenac, running alongside the left or driver’s side of the vehicle, directed him backward with hand signals which were visible to the driver through the left rear-view mirror. When he reached a point where he was to turn his truck to unload the materials Cenac pointed to indicate the turn, (verbal communications being impractical because of the noise.)

After .receiving the signal, Campbell watched his right rearview mirror continuously because the right rear of the truck would be the first part to reach the unloading site. As the truck began its jackknife motion in response to plaintiff’s signal, the left rear of the cab moved outward to the left of its original path of travel and struck plaintiff.

The only disputed fact in those recited is whether plaintiff actually signaled Campbell to turn his truck. In view of the fact that plaintiff stated in his deposition that he did give the signal and denied this at the trial, and that Campbell said plaintiff motioned him to turn, it is logical to accept the driver’s statement to this effect.

In written reasons for judgment the trial court found the plaintiff failed to prove negligence on the part of Archie Campbell because Cenac was directing the truck, which turned at the proper place, and the pedestrian was obligated to keep out of the way.

Appellant, arguing Campbell breached a high duty of care he, as a motorist, owed to plaintiff, a pedestrian, cites as relevant Guilbeau v. Liberty Mut. Ins. Co., 338 So.2d 600 (La.1976). In that case a pedestrian construction worker, unaware of the presence of a backing dump truck, was hit by a driver who saw him at least 159 feet before the accident occurred. The Gu-ilbeau holding does not apply here because the plaintiff was fully aware of the truck’s presence and it became impossible for the driver to watch the plaintiff once his turn began, as plaintiff well knew. Pierre v. Landry, 341 So.2d 891 (La.1977) discusses the unaware pedestrian situation and is also inapposite.

Appellant, not conceding the negligence of Cenac, argues the driver was guilty of actionable negligence in that he had a “clear chance” to avoid the accident. As discussed in Widcamp v. State Farm Mut. Auto. Ins. Co., 381 So.2d 937 (La.App. 3rd Cir. 1980) the “clear chance” doctrine requires the motorist who can avoid the accident to do so once the danger becomes apparent, without considering whether his opportunity to act was the final chance either participant had to avoid the accident. The facts in Widcamp lend themselves to the application of the last “clear chance” doctrine because there a motorist had the opportunity to observe a young pedestrian at a time when, with due care, he could have avoided injuring him. This case is distinguishable factually.

At no time did the driver have an opportunity to avoid this accident. Campbell followed plaintiff’s direction and turned at the correct place. Once the turn began he could no longer see Cenac and the driver had the right to assume that the one directing the truck to turn would anticipate the cab would move as it did.

For the reasons assigned the judgment appealed from is affirmed.

AFFIRMED.


author: JULIAN E. BAILES, Judge Pro Tem.

text:
    Loris GUIDRY and Mrs. Elvire Guidry v. Mrs. Renee CHERAMIE d/b/a Rene’s Superdome.
    No. 12013.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 7, 1981.
    Diaz & Cheramie, Carlton J. Cheramie, Golden Meadow, for plaintiffs-appellants.
    Greenberg & Dallam, Nathan Greenberg, Gretna, for defendant-appellee.
    Before KLIEBERT, STOULIG and BAILES, JJ.
   JULIAN E. BAILES, Judge Pro Tem.

Plaintiffs-appellants appeal the judgment of the trial court dismissing their action to recover damages for physical injuries and medical expenses from the defendant-appel-lee dance hall owner sustained when plaintiff-appellant wife slipped and fell on the dance hall floor.

During discovery depositions and at trial neither the husband nor wife appellant could identify the alleged foreign substance which allegedly caused Mrs. Guidry to slip. During her testimony in chief she states the floor was slippery and that “I don’t know what I slipped on, but I felt like little gravels or something_whatever it was.” At trial the plaintiff-husband testified, as on deposition, that he didn’t know what caused his wife to fall.

In addition to the testimony of the appellants, Mr. and Mrs. Guidry, a Mr. Yancy Cheramie testified that he was in the dance hall at the time Mrs. Guidry fell and that he saw no substance on the floor when he helped pick up Mrs. Guidry.

The defendant-appellee testified under cross-examination as follows:

“Q. Okay, do you know if you spray or if you ever put any powder on the floor to make it a little slippery to make people dance better?
“MR. CHERAMIE (INTERPRETING):
Answer: She says she puts a little bit but not plenty. And she said people complain because she does not put enough.
“Q. But there was some on the floor?
“MR. CHERAMIE: She said that they had some on the floor but not enough to make anybody fall.
“No further questions.”

Appellant argues that “All that is needed to prove out a case of slip and fall is that there must be a foreign substance on the floor, and that this substance caused plaintiff’s injury. Champagne v. Harahan Lions Club, Inc., 243 So.2d 292 (La.App.1971). Clearly, this was established in this cause and the case should have continued to a close of all evidence.”

At the conclusion of the plaintiff’s case in chief, the defendant moved for a directed verdict which the trial judge granted, with this oral comment:

“Alright, the Court directs the verdict in favor of the Defendant for the following reasons: Although the Plaintiff has sustained a serious injury, the testimony, the Court believes, is that she did dance on three occasions. The three dances were uneventful — without problems. It was only after the completion of the third dance, she was enroute back to her table, that she did fall.
“The Court believes that neither Mr. or Mrs. Guidry saw any foreign substance or were aware of any foreign substance on the floor at anytime either before or after the fall.
“This is supported by the testimony of Mrs. Guidry in her deposition prior to trial.
“The Court does not feel that it has been established by the Plaintiff, the Burden of Proof required at this time and the directed verdict is rendered in favor of the Defendant.”

In Champagne v. Harahan Lions Club, Inc., supra, the court stated:

“[3] Even if the slippery condition of the floor is said to be the sole cause of the accident, the defendant cannot be held liable unless negligence is proved. There is no evidence that the defendant had notice of any slippery condition.”

After all, Mrs. Guidry had that same night made three previously uneventful dances on this same floor.

The jurisprudential rule is no different in slip and fall cases as in any other civil action. The plaintiff has the burden of establishing his claim by a preponderance of the evidence. Sims v. Gibson’s of Denham Springs, Inc., 205 So.2d 824 (La.App. 1st Cir. 1968); Peters v. Great Atlantic & Pacific Tea Co., Inc., 72 So.2d 562 (La.App. 2nd Cir. 1954).

In keeping with the holding in Champagne v. Harahan Lions Club, Inc., supra, even taking into account the testimony of Mrs. Cheramie that she put some wax on the floor, there was no showing that it was excessive. The invitee assumes the ordinary risk attendant on the use of the premises for the purpose of dancing.

For the foregoing reasons, the judgment appealed is affirmed at appellants’ cost.

AFFIRMED.