text:
    Woody H. NICHOLS, Individually and as the Curator of the Interdict, Lynda Leona Nichols v. Reubin K. HODGES et al.
    No. 13084.
    Court of Appeal of Louisiana, First Circuit.
    March 31, 1980.

      Robert S. Cooper, Jr., Baton Rouge, of counsel for plaintiff-appellant Woody H. Nichols, Indv.
    Robert J. Vandaworker, Baton Rouge, of counsel for defendant-appellant Reubin K. Hodges, Lloyd W. Prine, Prine Building Materials, Inc. and Southern Farm Bureau Casualty Ins. Co.
    David W. Robinson, Baton Rouge, of counsel for defendant-appellee Government Employees Ins. Co.
    Daniel R. Atkinson, Baton Rouge, of counsel for defendant-appellee Allstate Insurance Company.
    Lawrence A. Durant, Baton Rouge, of counsel for third party defendant-appellee The Ron Miller Corporation.
    James E. Kuhn, Denham Springs, of counsel for third party defendant Thomas M. Stewart.
    William M. Faller, Baton Rouge, of counsel for third party defendant-appellee Lafayette Insurance Company.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge:

Lynda Leona Nichols was badly injured when the automobile she was driving, which was owned by James L. Mansell, was struck by a truck owned by Prine Building Materials, Inc., and operated by Reubin K. Hodges. This suit was filed by Woody H. Nichols, individually and as curator of Miss Nichols, who has been interdicted, for general and special damages occasioned by her injuries. Mr. Nichols died after judgment was rendered below, and Mrs. Leona J. Ad-amson Nichols, his widow, and mother of Lynda, qualified as curatrix and has been substituted as party plaintiff.

Defendants are Lloyd W. Prine, doing business as Prine Building Materials; Prine Building Materials, Inc.; Reubin K. Hodges; Louisiana Farm Bureau Mutual Insurance Company, their insurer; Government Employees Insurance Company, uninsured motorist insurer of the Mansell car; and Allstate Insurance Company, uninsured motorist insurer of an automobile belonging to Mr. Nichols.

Both GEICO and Allstate third partied Mr. Prine, Prine Building Materials, Inc., Mr. Hodges and Louisiana Farm, asking indemnification. Mr. Prine, Prine Building Materials, Inc., Mr. Hodges and Louisiana Farm third partied the Ron Miller Corporation, Thomas M. Stewart and Pat Sumerall asking for indemnification or contribution. It is alleged that Miller is the proprietor of the “J” Club and Mr. Stewart and Mr. Sumerall the proprietors of the “Jantom Lounge.” They are alleged to be liable because they sold intoxicating beverages to Mr. Hodges on the night before the accident, causing him to become intoxicated, which is alleged to be a cause of the accident. Mr. Stewart third partied Lafayette Insurance Company, which he alleges to be his liability insurer.

Issue was joined on all demands except by Pat Sumerall, who made no appearance.

After trial on the merits, judgment was rendered against Prine Building Materials, Inc., Mr. Hodges, Louisiana Farm, GEICO and Allstate, in solido, and in favor of Woody H. Nichols, individually, for $60,-226.15, and as curator of Lynda Leona Nichols for $1,762,878.79. The judgment as to Louisiana Farm, GEICO and Allstate was restricted to their respective limits of liability.

Judgment was further rendered in favor of GEICO and Allstate on their third party demands against Prine Building Materials, Inc., and Mr. Hodges to the full extent of the judgment against them on the main demand. All other demands and third party demands were dismissed.

Prine Building Materials, Inc., Mr. Hodges and Louisiana Farm applied for a new trial, which was granted as to the issue of the cost of future care of Lynda Leona Nichols. A hearing was held thereon, at which evidence was offered by plaintiff and defendants. Thereafter, final judgment was signed which increased the award to the curatrix of the interdict to $2,241,-179.50, and which is otherwise the same as the original judgment.

From this judgment, Prine Building Materials, Inc., and Louisiana Farm have appealed. Plaintiff has appealed as against Lloyd W. Prine and Allstate Insurance Company only.

ON THE MOTION TO DISMISS

Plaintiff has filed a motion to dismiss the appeal taken by Prine Building Materials, Inc., and Louisiana Farm. It is alleged that, since no appeal was taken on behalf of Reubin K. Hodges, and since the liability of Prine is based on the doctrine of respondeat superior, the appellants may raise only the question of whether Mr. Hodges was in the course and scope of his employment. It is further argued that, since Mr. Hodges’ employment is admitted, there is no basis for the appeal.

The argument is without merit. These appellants are entitled to have reviewed all facets of the case which affect the nature and extent of their liability. This includes the liability of Mr. Hodges and the extent of the award. See Robertson v. Perry, 370 So.2d 596 (La.App. 4th Cir. 1979) and cases cited therein.

The motion is denied.

ON THE MERITS

The accident happened at about 12:45 p. m. on April 9, 1976, at the point where Wax Road forms a “T” intersection with Louisiana Highway 37. Directly across from Wax Road, on the east side of Highway 37, is the private driveway leading to the property of Woody H. Nichols. Highway 37 is an asphalt surfaced, two-lane highway, the traveled portion thereof being 24 feet in width. There is a double yellow line in the center of Highway 37 from Wax Road northerly for a distance of over 500 feet, signifying a no passing zone. There is a curve in the highway about 500 feet north of the intersection. Vehicles rounding the curve, traveling in a southerly direction, can see the Nichols driveway from a distance of about 550 feet.

Miss Nichols was driving Mr. Mansell’s car in a southerly direction, going to her father’s home. She made a left turn across the northbound lane to enter the driveway. As her front wheels were at or near the edge of the pavement, her vehicle was struck by the 1973 Ford one-ton flatbed truck operated by Mr. Hodges.

Mr. Hodges was also driving southerly on Highway 37. He testified that, as he came out of the curve, he saw the Nichols vehicle coming to a stop ahead of him, with the brake lights on. He stated that he was too close to stop without hitting her, and so pulled to the left to avoid the accident. At the same time, he testified that she made her left turn. He applied his brakes, but could not avoid the accident. The truck left 93 feet of skid marks leading up to the point of impact, and pushed the Nichols vehicle 54 feet further. Mr. Hodges estimated his speed at about 65 miles per hour. He did not observe any lights on the rear of the car other than the brake lights.

The impact was witnessed by Mr. Nichols, James L. Mansell, and Ricky Murphy, all of whom were in Mr. Nichols’ yard. Mr. Nichols and Mr. Mansell both observed that the left turn flasher on the Nichols vehicle was working as she was turning. They heard the screech of the truck’s brakes and saw the impact. Their testimony is that, at the time of the impact, Miss Nichols’ car was entirely obstructing the northbound lane of the highway, with the front wheels either just on or just off the pavement, and the rear end barely into the southbound lane.

There is a great deal of expert testimony in the record as to the time that it took Miss Nichols to turn from the southbound lane to the point of impact. These estimates vary from two and one-half seconds, assuming she was going 10 miles per hour when she began the turn, to six and one-half seconds, assuming she made the turn from a stop. There is no firm evidence in the case from which it can be learned exactly how and at what speed Miss Nichols made the turn. Assuming the shorter time of two and one-half seconds, the truck would have been about 240 feet from the point of impact at the time she started her turn, and still in the southbound lane of traffic.

The law applicable to such cases is clear. In Adams v. Travelers Indemnity Company, 277 So.2d 685 (La.App. 2nd Cir. 1973), the court said:

“A motorist who attempts a left turn or who attempts to turn from a direct line on the public highways of the state must ascertain in advance that the turn can be made without endangering normal overtaking or oncoming traffic. The giving of a signal is not the only burden placed on the motorist for he must, in addition, check the rear immediately before the turn is attempted to ascertain whether it can be executed safely. (Citations omitted.)
“The law is equally clear that a motorist has the unquestioned right to assume the following traffic will observe all the duties imposed on it by law and common sense, such as that the following traffic will proceed within the speed limit and will not pass at an intersection where passing is prohibited; and moreover, that the drivers of such vehicles are keeping a proper lookout.”

Considering the expert testimony in the record as to stopping times and distances, it is evident that under the circumstances most favorable to defendants Mr. Hodges could have easily avoided the accident by remaining in his proper lane of travel and slowing his vehicle. It is likewise clear that, had Miss Nichols looked in her rear view mirror before beginning her turn, as she is required to do by law, she would have seen the truck over 240 feet to her rear, in its proper lane, sufficiently distant so that no emergency situation would be created by a left turn. Even without the double yellow line painted on the road surface, Miss Nichols would not be required to anticipate that the truck would attempt to pass her on the left.

We think it obvious that, had Mr. Hodges been keeping a proper lookout, he would have seen the Nichols vehicle in ample time to have avoided this accident. His negligence in failing to do so is the sole cause thereof. His employer, Prine Building Materials, Inc., and the insurer, Louisiana Farm, are solidarily liable with him, the latter only to the extent of its policy limits.

The record does not support plaintiff’s contention that Mr. Prine should be found liable individually. It is claimed that Mr. Prine should have known that Mr. Hodges was intoxicated and was negligent in permitting him to operate the truck. The evidence shows that, on the night before the accident, Mr. Hodges consumed substantial quantities of beer and whiskey, which he bought at the J Club and the Jantom Lounge, and that he became very intoxicated. During the same period of time he also smoked some marijuana cigarettes, but the record does not show where these were obtained, or to what extent they may have contributed to his intoxication. Mr. Hodges got home at 2:30 or 3:00 o’clock a. m., an event of which he had no recollection, and was at work by 8:30 a. m. Mr. Prine noticed nothing unusual in his behavior at that time. Mr. Hodges delivered a load of building material and was returning to the lumber yard when the accident happened, at about 12:45 p. m. Despite a blood alcohol level of 0.12 grams percent, the record does not preponderate to the effect that Mr. Hodges’ driving ability was impaired at the time of the accident, some nine or ten hours after he had gone to bed. The officer who investigated the accident saw nothing to indicate intoxication on Mr. Hodges’ part, and had the blood test administered only because Mr. Hodges told him that he had been drinking the night before.

The trial judge was satisfied that there was no liability as to Mr. Prine, under the foregoing circumstances, and we find no manifest error in this determination.

We further find no error in the dismissal of the third party demands against the bar owners. Plaintiff failed to prove the owner of the Jantom Lounge; failed to prove what amount of intoxicant might have been consumed at either bar; and failed to prove that Mr. Hodges’ alleged intoxication was a proximate cause of the accident. We do not wish to imply that there would have been liability on the part of the bar owners for injuries caused to others by an intoxicated patron. No court has yet held this to be the law in Louisiana. See Thrasher v. Leggett, 373 So.2d 494 (La.1979). Moreover, in this case there is not sufficient factual basis for such a finding under any circumstances.

Plaintiff’s appeal as to Allstate involves the limits of liability under the uninsured motorists portion of the policy written for Mr. Nichols. The liability portion of the policy had limits of $100,000.00 per person and $300,000.00 per accident. When the policy was written, it provided the same limits for the uninsured motorists portion. Prior to this policy, the Nichols had maintained only $5,000.00/$10,000.00 UM coverage. When Mrs. Nichols inquired about the increased premium, she was told about the increase in the UM coverage. Mrs. Nichols elected to decrease the UM limits, and signed the proper reduction application. Subsequently, an amended policy was sent to the Nichols, showing the UM coverage reduced to $5,000.00/$10,000.00 and the reduced premium, which was paid.

Mrs. Nichols testified that they had asked that the limits be reduced to $50,-000.00/$100,000.00 rather than $5,000.00/$10,000.00; that the reduction application which she signed was blank, and that she never received an endorsement to the policy. It is clear that an amended policy was mailed to the Nichols.

The trial judge found that the applicable limits of the policy were $5,000.00/$10,-000.00, and limited the judgment against Allstate to $5,000.00. We find no error in his determination. Plaintiff’s argument that the original limits of the policy must apply because the provisions of R.S. 22:628 were not complied with, is without merit. The Nichols were not sent an endorsement or separate contract by Allstate. An amended policy, which entirely superseded the original policy, was forwarded to them, and must have been received, since it was produced in response to a subpoena duces tecum. We think the record reflects that the Nichols were fully informed as to the coverage of their policy, and that it was in accord with their wishes.

QUANTUM

The record is clear that Lynda Leona Nichols is incapacitated for life, both mentally and physically, as a result of the accident. She will need constant nursing care, therapy, supervision and medical treatment for the rest of her life. She was 17 years old when the accident happened.

The trial court awarded $750,000.00 as general damages and $1,408,857.38 as special damages covering the cost of future medical care and treatment. The trial judge’s original written reasons relative to quantum are as follows:

“As a result of this accident, Lynda suffered severe and permanent injuries. Dr. William L. Fisher, a neurosurgeon, removed a blood clot from the temporal lobe of Lynda’s brain and also removed the damaged surrounding tissue. He described the injury as permanent. Her chances of becoming self-sustaining are nil. She cannot walk or crawl. She cannot turn over — she cannot stand without assistance. She has very limited control of her bowels or her bladder. She has organic brain impairment. She can speak, but with a defect and a limited vocabulary. She has only partial use of her right arm and no use of her other extremities. There is severe contractual deformity of the heels, elbows and feet. She will require physical therapy at least twice weekly for the remainder of her life. She will require care 24 hours per day. Her life expectancy has not been decreased. She is child-like, and there is no chance, no possibility of improvement. Lynda was born June 2, 1958, making her 17 years of age at the time of the accident.
“Dr. John Chisolm, Professor Emeritus, Louisiana State University, Department of Economics, testified regarding Lynda’s economic loss. In his calculations, he considered one visit per week from a physical therapist. He made numerous calculations using an increase in productivity and discounting. He used the annual loss of Lynda’s mother’s salary, the use of a licensed practical nurse two shifts per day and for two weeks every year, three shifts per day, and the cost of a live-in companion over the balance of Lynda’s life expectancy. The future cost of care amounted to more than $1,300,000.00 after considering inflation and after being discounted. Dr. Chisolm testified that he used a very conservative approach in his calculations.
“The record contains evidence of the nature and kind of therapy Lynda is having and must continue to receive. The evidence also reflects other injuries she received in the collision. The evidence has proven that Lynda has endured great physical pain and suffering and that the pain and suffering will continue for many years. It would simply be a cliche to state that no amount of money can compensate her for her injuries. The law, nonetheless, mandates that an award be made. In view of all of the evidence in the case, the Court fixes as general damages the sum of $750,000.00.
“Dr. Chisolm’s exact figure on the cost of care was $1,350,505.06. Since Dr. Fisher expressed the opinion that Lynda did not require the services of a licensed practical nurse at all times, the Court feels that a one-fourth reduction in Dr. Chisolm’s total is required. The total cost of care, reduced to $1,012,878.79, added to $750,-000.00 equals $1,762,878.79.”

Following the rendition of judgment, Mr. Hodges, Prine Building Materials and Louisiana Farm applied for a new trial, which was granted, but limited to the issue of the cost of future care. After that hearing, the following reasons for judgment were rendered:

“The Court now finds that the testimony of Dr. Chisolm at the second trial is convincing. His analysis is as follows:
“1. A live-in companion for 1 eight-hour shift per day, 7 days a week;
“2. A Home Health Aide for 1 eight-hour shift per day, 5 days a week; and
“3. A physical therapist for 3 visits per week from 11/14/77 to 11/14/78 and 1 visit per week thereafter.
“Using 3% per annum to account for inflation and productivity and 5% to discount to present value, the total arrived at was $848,350.19.
“The Home Health Aide is paid $4.75 per hour for personal care, bathing, feeding, etc. Therapists are paid $29.00 per hour, an hour being the usual time for one treatment. The live-in companion is paid $38.00 per day for 8 hours, and provides no personal care. Licensed Practical Nurses are paid $10.50 per hour.
“The cost of one L.P.N. working one shift per day, 7 days a week (with 3% annual increases and discounted by 5%) is $1,023,534.88.
“Thus the total cost of future care is $1,871,885.07. From this total, the Court feels that a reduction is in order. The discounted cost of the live-in companion is $463,027.69. Mrs. Nichols has left her employment to help care for her daughter. The Court will award to Lynda the discounted value of her mother’s loss of wages, $82,322.12, in lieu of the award for the live-in companion. Therefore, we deduct $463,027.69 from $1,871,885.07 and then add $82,322.12 to the award making a total of $1,408,857.38.”

Procedurally, Prine Building Materials and Louisiana Farm allege that the trial judge erred in permitting the plaintiff to offer evidence at the hearing on the motion, and in increasing the award, when the motion had been made by the defendants-appellants and not by the plaintiff. No authority is offered in support of this proposition.

Article 1978 of the Code of Civil Procedure provides:

“It shall not be necessary to resummon the witnesses or to hear then anew at a new trial if their testimony has once been reduced to writing, but all such testimony and evidence received on the former trial shall be considered as already in evidence. Any party may call new witnesses or offer additional evidence, and with the permission of the court recall any witness for further examination or cross examination as the case may be. However, the parties shall not be precluded from producing new proofs, on the ground they have not been offered on the first trial. When a new trial is granted for reargument only, no evidence shall be adduced.”

We find no limitation on the authority of the trial judge to hear witnesses or change the judgment, regardless of which party applied for the new trial.

Defendants-appellants also claim that the awards for both general and special damages are excessive and based on “unproved speculation and unsound hypothetical formulas.” Our examination of the record reveals ample support for the findings of the trial judge as to the necessity for the medical care and therapy for which he awarded damages. Each side in the case put on an expert economist who testified as to the appropriate method of calculating the present value of the medical care and therapy which Lynda would require in the future. He accepted the opinion of plaintiff’s expert, and we find no manifest error. Neither do we find any abuse of discretion in the award of $750,000.00 as general damages, in the light of the nature and extent of Lynda’s injuries.

At the trial, it was shown that Mrs. Nichols, Lynda’s mother, had quit her job in order to care for Lynda. The present value of her lost wages was awarded to Lynda as an item of damages. Defendants-appellants claim that this is an improper award. As can be seen from the trial judge’s reasons, supra, this amount was awarded in lieu of the much higher salary of a licensed practical nurse, whose place in Lynda’s care would be filled by Mrs. Nichols. Mrs. Nichols’ lost wages were used as a measure of the value of her services to Lynda, and we find no error in utilizing this means of fixing that part of the award.

Defendants-appellants further claim that the court erred in failing to consider the impecunious circumstances of Mr. Hodges, Mr. Prine and Prine Building Materials, Inc., in fixing damages. Mr. Prine was not cast in judgment, and there is no evidence as to the financial circumstances of Prine Building Materials, Inc. There is, therefore, no basis for a reduction as to the latter defendant. Mr. Hodges did testify as to his own lack of resources, but we could hardly reduce the judgment as to him and leave it unchanged as to Prine Building Materials, as they are solidarily liable.

Defendants-appellants also claim that the expert witness fees granted by the court are excessive. The fees awarded are in line with the testimony in the record, and we find no error.

The final judgment signed herein did not properly assess the interest due by Louisiana Farm, and that error will be corrected herein.

The judgment appealed from is amended so as to provide that interest paid by Louisiana Farm Bureau Mutual Insurance Company shall be at the legal rate on their policy limits from date of judicial demand until the date of the final judgment, April 11, 1979, and on the full amount of the judgment from April 11,1979, until the full amount of the policy limits is paid or tendered; and as amended it is affirmed. All costs of this appeal shall be paid by Prine Building Materials, Inc., and Louisiana Farm Bureau Mutual Insurance Company.

AMENDED AND AFFIRMED.


source: Caselaw Access Project

author: ELLIS, Judge:

license: Public Domain

text:
    VERMEER SALES & SERVICE, INC., OF TEXAS v. ELECTRICAL SALES & SERVICE, INC.
    No. 13124.
    Court of Appeal of Louisiana, First Circuit.
    March 31, 1980.
    R. J. Calongne, Jr., Ervin & Waguespack, Baton Rouge, counsel for plaintiff.

      Allen McElroy, Jr., Berwick, counsel for defendant.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge:

This is a suit by Vermeer Sales and Service, Inc., of Texas against Electrical Systems and Service, Inc., for the purchase price of a trencher and backhoe which plaintiff allegedly sold to defendant. After trial on the merits, judgment was rendered dismissing plaintiff’s suit, and plaintiff has appealed.

Electrical Systems and Service, Inc., is a Louisiana corporation. Paul Hudson is its president and James B. Raub is its vice president and secretary. In September, 1976, Don Plessala, an employee of Electrical, called Vermeer to inquire about renting a trencher, and was advised that Vermeer did not have such machines to rent but did have them for sale. Shortly thereafter, Conrad J. D’Arensbourg, a salesman for Vermeer, brought a unit to Morgan City to demonstrate it.

Over the next several days, the machine was demonstrated, and there were discussions relative to the purchase thereof. According to Mr. Hudson and Mr. Raub, they planned to purchase the machine for themselves personally and not for the corporation. They testified that they told Mr. D’Arensbourg that they would have to finance the purchase price, but that they anticipated no difficulty in doing so. After there was agreement as to the price, Mr. D’Arensbourg requested some evidence that the deal was complete and was given a check on Electrical for the full amount of the purchase price. This phase of the transaction took place on September 16, 1976, but the check given was dated September 22, 1976.

Mr. D’Arensbourg testified that he did not notice that the check was postdated, but that he had agreed to hold it for a couple of days while a transfer of funds was made to the proper account by Electrical. Mr. Hudson and Mr. Raub both testified that they gave the check only as evidence of the fact that an agreement had been reached, and that Mr. D’Arensbourg was aware that their financing was not complete and that the check was not to be deposited.

Mr. Hudson and Mr. Raub also stated that, although the unit was to be in their names, or in the name of a new corporation, they intended that the initial sale be to Electrical in order to postpone their sales tax liability.

After the check was given, Mr. Hudson and Mr. Raub found that they could not get the necessary financing, and called Mr. D’Arensbourg to so advise him, and tell him the deal was off. This took place on September 24, 1976, according to Mr. D’Arens-bourg’s testimony. Mr. D’Arensbourg immediately attempted to cash or have certified the check but payment was stopped.

All invoices in the record indicate that the sale was made to Electrical and the check given was on the Electrical account. It was contemplated by all parties that the sale from Vermeer would, in fact, be made to Electrical. On the other hand, the testimony of the bank officer with whom the loan negotiations were carried on is to the effect that the loan was to be made to Mr. Hudson and Mr. Raub individually.

In ruling for defendants, the trial judge said:

“The important fact remains that from the time of the execution of the check and prior to the date of the cheek, an attempt was made or was actually completed to notify the plaintiff that the transaction was off. This negatived whatever implied consent may have been given by the execution of the post-dated check, as the consent was withdrawn pri- or to the stated date on the check.
“Because of this, it follows that the necessary conclusion is that no binding contract was entered into between the plaintiff and the defendant. Therefore, there should be judgment accordingly.”

Of course, the testimony in the record shows that Mr. Hudson did not advise Mr. D’Arensbourg that the deal was off until two days after the date on the check.

Mr. D’Arensbourg testified that he thought he was doing business with Electrical throughout the entire transaction. Mr. Hudson and Mr. Raub stated that it was understood at all times that they were the real purchasers of the unit.

Since the reasons for judgment are based on a finding of fact which is clearly wrong, we are unable to accord the usual dignity to the findings of the trial judge. Our own examination of the record leads us to the belief that there was every reason for plaintiffs salesman to believe that the sale was complete when he was handed the check. He had been consulted first by an employee of Electrical, and all negotiations were conducted by officials of Electrical. The invoice was made out to Electrical and he was paid with a check drawn on Electrical. He was aware that financing was not complete, but we do not believe that the record reflects that he was told that the completion of financing was a suspensive condition of the sale. In fact, he was told that financing would not be a problem. It is true that he was given a postdated check, but no attempt was made to call off the sale until two days after the date of the check.

There can be no doubt that, on the face of this transaction, it was a completed sale. There was agreement as to the price and thing, delivery of the thing was made and the price paid. Articles 2439, 2456, Civil Code. Defendant bears the burden of proving its defense that completion of financing was a condition of the sale, and we find that it has failed to do so. In fact, the record shows that there were sufficient funds in the corporate account to pay the check when it was presented, and only a verbal stop order prevented its payment.

The judgment appealed from is therefore reversed and there will be judgment herein in favor of Vermeer Sales and Service, Inc., of Texas and against Electrical Systems and Service, Inc., for $23,950.00 together with legal interest from March 16, 1977, until paid, and all costs of these proceedings.

REVERSED AND RENDERED.


text:
    Richard E. SMITH and Mary A. Smith v. CROWN ZELLERBACH CORPORATION and Liberty Mutual Insurance Company.
    No. 13188.
    Court of Appeal of Louisiana, First Circuit.
    March 31, 1980.

      John N. Gallaspy, of Gallaspy & Paduda, Bogalusa, for plaintiffs.
    Bruce J. Borrello, of Borrello & Huber, Metairie, for defendant.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge:

This is a suit by Richard E. Smith and Mary A. Smith, his wife, for damages for personal injuries suffered by Mrs. Smith, and special damages suffered by Mr. Smith in an automobile accident. Defendants are Crown Zellerbach Corporation and Liberty Mutual Insurance Company, its liability insurer. After trial on the merits, judgment was rendered in favor of plaintiffs and against defendants, and defendants have appealed.

Mrs. Smith’s vehicle, which she was operating, was stopped in traffic when she was struck from the rear by a pickup truck owned by Crown and operated by Percy Adams. Mr. Adams testified that when he attempted to stop, the brakes on the truck did not function and he struck the Smith vehicle. He testified that he had stopped several times just before the accident, and that the brakes had functioned properly.

In ruling on the case, the trial judge said: “Plaintiff, Mary Smith, was injured when the car she was driving was struck from the rear by a truck while stopped for traffic. The truck was owned by Crown Zellerbach Corporation, and was driven by its employee, Percy Adams. The truck had a sudden brake failure, unanticipated by the driver, who was unable to avoid the collision. The driver was not negligent. Neither was the plaintiff. Under the jurisprudence of this state for many years this would be a case of no liability. Cf. Cartwright v. Firemen’s Ins. Co. of Newark, 254 La. 330, 223 So.2d 822 (1969). However, it is apparent from the language of the Supreme Court of this state in Arceneaux v. Domingue, 365 So.2d 1330 ([La.]1978) that true sudden brake failure cases from this point on will be decided under the doctrine of Loescher v. Parr, 324 So.2d 441 ([La.]1975). Consequently, the owner or guardian of an instrumentality which causes harm can escape liability only if the victim was at fault. There is therefore liability in this case on the part of Crown Zellerbach Corporation, the owner of the vehicle which had a sudden brake failure.”

In this court, defendants claim that the trial judge erred in applying the Arceneaux rationale, and that of Loescher v. Parr, supra, to the instant case, alleging the Ar-ceneaux case to be distinguishable on its facts.

We see no inconsistency in the Loescher and Arceneaux opinions. The owner of a motor vehicle does not create an unreasonable risk of harm to others because he permits a qualified third party to operate it. If the negligence of that third party causes an accident, the owner is not liable. If, however, the accident results from a defect in the vehicle, whether apparent or not, it is the owner who is responsible to the injured party. The unreasonable risk of harm to others caused by the defect is the basis for his liability. In this case, in which the brakes of the vehicle failed without warning, the trial judge correctly found the owner of the vehicle to be liable.

Defendants also allege that the general damages of $5,000.00 awarded to Mrs. Smith are excessive. The accident happened on November 12, 1975. Mrs. Smith suffered injuries to the soft tissues of her neck and upper back. At the time of trial on March 8,1979, she testified that she was still having some pain as a result of the injury. The expert medical evidence, however, could not relate her symptoms to the accident after August, 1976. Mrs. Smith was not hospitalized, missed only one day of work, and her injuries were characterized by the treating orthopedist as mild. We think the award of $5,000.00 is rather high, but within the great discretion accorded to trial judges in fixing damage awards.

The judgment appealed from is therefore affirmed, at defendants’ cost.

AFFIRMED.


text:
    Clamie Guillory GOLMAN v. DIXIE INSURANCE COMPANY et al.
    No. 13193.
    Court of Appeal of Louisiana, First Circuit.
    March 31, 1980.
    Charles B. Colvin, Baton Rouge, for plaintiff-appellant Clamie Guillory Golman.
    Robert L. Kleinpeter, Baton Rouge, for defendants-appellees Dixie Ins. Co., Joseph E. Pouyer, and Robert E. Rabb.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge:

This is a suit by Clamie Guillory Golman for damages for the wrongful death of her son, Harold D. Guillory. Defendants are Dixie Insurance Company, Joseph E. Pouyer, doing business as Eastern Missouri Excavation Company, and Robert E. Rabb. The petition alleges that Harold D. Guillory was killed when his automobile was struck by a vehicle operated by Rabb, in the course and scope of his employment with Pouyer. The accident is alleged to have happened on April 10, 1975. Defendants are alleged to be strictly liable for the death of Guillory, because they were custodians of a thing, a vehicle, which was responsible for his death. This suit was filed on May 30, 1979.

To the petition, defendants filed peremptory exceptions of res judicata and prescription. The record reveals that a suit was filed in the 20th Judicial District Court by this plaintiff against these defendants for damages for the wrongful death of Harold D. Guillory in the accident of April 10,1975. The suit was decided against plaintiff in the district court by a jury, the judgment was affirmed in this court, and writs were refused by the Supreme Court on February 23, 1979. See Golman v. Dixie Auto Ins. Co., 368 So.2d 134 (La.1979). In the suit in the 20th Judicial District Court, plaintiffs based their claim for damages on the negligence of Mr. Rabb in a number of respects.

The peremptory exceptions filed by defendants herein were sustained by the trial court, and plaintiff’s suit was dismissed. From the judgment of dismissal, plaintiff has appealed.

In this court, she claims that the judgment in the first suit is not res judicata as to this suit because the alleged liability of defendants is based on a claim of strict liability under Article 2317 and not negligence under Article 2315 as in the first suit.

Article 2286 of the Civil Code provides:
“The authority of the thing adjudged takes place only with respect to what was the object of the judgment. The thing demanded must be the same; the demand must be founded on the same cause of action; the demand must be between the same parties, and formed by them against each other in the same quality.”

In Mitchell v. Bertolla, 340 So.2d 287 (La.1976), the court found the phrase “cause of action” in the above article to be a mistranslation of the French cause, which should have been translated as “cause.” The court said:

“The cause is said to be the juridical or material fact which is the basis of the right claimed, or the defense pleaded. 2 Planiol, Traite Elementaire De Droit Civil, 34 (11 ed. 1939). Stated otherwise:
‘. . . Cause is the principle upon which a specific demand is grounded while cause of action embraces the cause and the demand, and is related to the party making the demand. . . ’ ”

It is possible, as in the Mitchell case, supra, for the same set of circumstances to give rise to a number of “causes,” and a decision in a case based on one cause does not bar another suit arising out of the same facts, based on a different cause.

However, plaintiff is mistaken in her claim that a suit under Article 2317 is founded on a cause different from a suit under Article 2315. In Loescher v. Parr, 324 So.2d 441 (La.1976), the court said:

“Articles 2315 through 2324 of the Louisiana Civil Code comprise the code’s entire chapter of legal principle regulating offenses and quasi-offenses.
“The underlying principle is provided by Article 2315: ‘Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it. * * * ’ The remaining articles constitute amplifications as to what constitutes ‘fault’ and under what circumstances a defendant may be held liable for his act or that of a person or thing for which he is responsible.
“Article 2316 provides for delictual (tort) responsibility for negligent acts or omissions: ‘Every person is responsible for the damage he occasions not merely by his act, but his negligence, his imprudence, or his want of skill.’ However, negligence is not necessarily a basis for the obligation to respond in damages for harm caused by persons or things for which we are responsible as provided by the subsequent Articles 2317 through 2322.”

Plaintiff’s cause, therefore, is founded on the material fact of the automobile collision. She does not change her cause by alleging liability under Article 2317 rather than Article 2315. All of the articles relating to offenses and quasi-offenses are part of the same causal scheme.

The exception of res judicata was properly maintained. Since we have so concluded we need not consider the merits of the peremptory exception of prescription.

The judgment appealed from is affirmed at plaintiff’s cost.

AFFIRMED.


author: CHIASSON, Judge.

text:
    STATE of Louisiana In the Interest of Randy Wayne WINSTEAD.
    No. 13098.
    Court of Appeal of Louisiana, First Circuit.
    March 31, 1980.
    Richard Miller, Probation Officer, Leono-ra C. Estes, for plaintiff-appellee State of Louisiana.
    Gail H. Ray, Baton Rouge, for defendant-appellant.
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

This is one of four appeals arising from the same incidents at Greenwell Springs Hospital and involving the same legal issues.

Defendant appealed an adjudication of delinquency.

The issues are:

(1) Applicability of La.C.Cr.P. Art. 894.1 to juveniles; and

(2) Validity of sentence.

We affirm.

Defendant and three other youths broke into a nurse’s station at Greenwell Springs Hospital and stole some car keys. They threatened the hospital staff with some pipes they had armed themselves with. They escaped in a nurse’s car, were chased by a sheriff’s deputy and eventually were apprehended.

The defendant was charged with aggravated assault, unauthorized use of a movable, and resisting arrest. He pleaded guilty to all three counts and received a six month sentence on each count, to run consecutively.

Defendant argues that the court has not complied with sentencing guidelines in the Code of Criminal Procedure, especially La.C.Cr.P. Art. 894.1 and that the sentences were excessive and not supported by adequate reasons.

La.C.Cr.P. Art. 894.1 has no counterpart in the Code of Juvenile Procedure, even though the latter is of much more recent effective date. We can find no authority for this transposition and none has been cited to us. Defendant evidently assumes without explicit expression that the procedure set forth in the article is of constitutional status. We have found neither constitutional nor jurisprudential authority for this contention.

Articles 83 and 86 of the Code of Juvenile Procedure control the disposition of a juvenile after having been adjudicated a delinquent. These grant much discretion to the court because of the special nature of the juvenile proceeding. The court must balance the needs of the child with the best interest of society. There is no requirement that the court give reasons for its judgment.

In sentencing, the court said:

“From your pre-dispositional reports, although some of the recommendations were that some of you not be placed in LTI, I didn’t go along with that. Because your pre-dispositional reports indicated to me for years, people have been trying with you. They have been doing what they can to help you. So that the message will get back to Greenwell Springs and your buddies there, that I don’t intend to let the people who try to help kids out at Greenwell Springs Hospital, be abused. I don’t intend for the people who live in this Parish, to be abused either by those children who decide that they don’t want the help out there and for one reason or another, they are going to escape.”

Defendant argues that the court below was making an example of defendant rather than following the guidelines imposed by law. We have read the entire record in this case, including the testimony and the pre-disposition report. Considering all of the facts shown, we find the sentenced imposed to be fully supported. The fact that the court chose to deliver a lecture before making the disposition does not invalidate the sentence.

The judgment is affirmed. All costs are assessed against the State of Louisiana.

AFFIRMED.

      . La.C.Cr.P. Article 894.1:
      “A. When a defendant has been convicted of a felony or misdemeanor, the court should impose a sentence of imprisonment if:
      (1)There is an undue risk that during the period of a suspended sentence or probation the defendant will commit another crime;
      (2) The defendant is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution; or
      (3) A lesser sentence will deprecate the seriousness of the defendant’s crime.

        ís. The following grounds, while not controlling the discretion of the court, shall be accorded weight in its determination of suspension of sentence or probation:
      (1) The defendant’s criminal conduct neither caused nor threatened serious harm;
      (2) The defendant did not contemplate that his criminal conduct would cause or threaten serious harm;
      (3) The defendant acted under strong provocation;
      (4) There was substantial grounds tending to excuse or justify the defendant’s criminal conduct, though failing to establish a defense;
      (5) The victim of the defendant’s criminal conduct induced or facilitated its commission;
      (6) The defendant has compensated or will compensate the victim of his criminal conduct for the damage or injury that he sustained;
      (7) The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the instant crime;
      (8) The defendant’s criminal conduct was the result of circumstances unlikely to recur;
      (9) The character and attitudes of the defendant indicate that he is unlikely to commit another crime;
      (10) The defendant is particularly likely to respond affirmatively to probationary treatment; and
      (11) The imprisonment of the defendant would entail excessive hardship to himself or his dependents.
      C. The court shall state for the record the considerations taken into account and the factual basis therefor in imposing sentence.”

      . Article 24 of the Code of Juvenile Procedure provides:
      “The provisions of this Code, except as otherwise specially provided in the law being applied, shall govern and regulate the proceedings of courts exercising juvenile jurisdiction.
      Where procedures are not provided in this Code, or otherwise by law, the court shall proceed in accordance with:
      (1) The Code of Criminal Procedure in a criminal trial of an adult; or
      (2) The Code of Civil Procedure in all other matters.”

      . Articles 83 and 86 of the Code of Juvenile Procedure:
      “A. In cases in which a child has been adjudicated a delinquent the court may:
      (1) Place the child in the custody of his parents or other suitable person under such terms and conditions as deemed in the best interests of the child and the public;
      (2) Place the child on probation in the custody of his parents or other suitable person under such terms and conditions as deemed in the best interests of the child and the public;
      (3) Order a child to attend any school as a condition of probation, if the school admits the child;
      (4) Commit the child to the custody of a private or public institution or agency;
      (5) Commit a child thirteen (13) years of age or older to the custody of the Department of Corrections;
      (6) Commit a child under thirteen (13) years of age adjudged a delinquent for the commission of an act which if committed by an adult would constitute a felony to the custody of the Department of Corrections;
      (7) Commit a child found to be mentally defective to a public or private mental institution or an institution for the mentally defective; or
      (8) Make such combination of the above dispositions or such other disposition as the court deems to be in the best interest of the child, including ordering the child to make reasonable restitution.
      B. The court may defer or suspend execution of the judgment of disposition and place the child on probation under such terms and conditions as deemed in the best interest of the child and public.
      C. A child may be committed to a juvenile detention center or other suitable facility or, if no such facility is available, to the Department of Corrections for a direct contempt of court or for constructive contempt due to repeated failure to comply with a judgment of disposition. Provided, however, that no child committed under this provision shall be physically housed in the same dormitory, room or area used to house children adjudicated delinquent for behavior other than direct or constructive contempt. Commitment for each contempt shall not exceed fifteen (15) days, including time spent in detention for the contempt prior to adjudication for contempt.”
      Article 86:
      “A. The court should impose the least restrictive disposition which the court finds is

        consistent with the circumstances of the case, the needs of the child, and the best interest of society. The court shall not remove a child from the custody of his parents unless his welfare or the safety and protection of the public cannot, in the opinion of the court, be adequately safeguarded without such removal.
      B. If the court commits a child to a private institution or agency, it shall select one that is licensed by the Department of Health and Human Resources. Where no institution, social agency or association licensed by the Department of Health and Human Resources for care or placement of children is available to the court, the court may commit the child to some other institution, social agency, or association, which in the judgment of the court is suitable for the care of such child.
      C. In committing a child to the custody of an individual or a private agency or institution, the court shall, whenever practicable, select a person, agency, or institution of the same religious faith as the child or his parents.
      D. A child shall not be committed to a public or private mental institution or institution for the mentally defective unless the court finds, based on psychological or psychiatric evaluation, that the child has a mental disorder, other than mental retardation, which has a substantial adverse effect on his ability to function and requires care and treatment in an institution.
      E. A child shall not be committed to a public or private institution for the mentally retarded unless the court finds, based on psychological or psychiatric evaluation, that the child is mentally retarded and such condition has a substantial adverse effect on his ability to function and requires care and treatment in an institution.”


text:
    STATE of Louisiana In the Interest of Les MANCIL.
    No. 13099.
    Court of Appeal of Louisiana, First Circuit.
    March 31, 1980.
    Writ Refused May 19, 1980.
    Richard Miller, Probation Officer, Leono-ra C. Estes, for plaintiff-appellee State of Louisiana.
    Gail H. Ray, Baton Rouge, for defendant-appellant Les Mancil.

      Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

Except for variations as to the delinquent’s background previous to being sent to Greenwell Springs Hospital, the facts and legal issues involved herein are the same as those in No. 13,098, 385 So.2d 311 “State of Louisiana in the Interest of Randy Wayne Winstead,” being decided today.

For the reasons expressed in that case, the judgment is affirmed at the cost of the State of Louisiana.

AFFIRMED.


text:
    STATE of Louisiana In the Interest of Charles W. GILLILAND.
    No. 13100.
    Court of Appeal of Louisiana, First Circuit.
    March 31, 1980.
    Richard Miller, Probation Officer, Leono-ra C. Estes, for plaintiff-appellee State of Louisiana.
    Gail H. Ray, Baton Rouge, for defendant-appellant Charles Gilliland.
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

Except for variations in the history of appellant prior to being sent to Greenwell Springs Hospital, the facts and legal issues of this case are similar to those in No. 13,098, 385 So.2d 311, “State of Louisiana in the Interest of Randy Wayne Winstead,” being decided today.

For the reasons expressed in that case the judgment is affirmed at the cost of the State of Louisiana.

AFFIRMED.


text:
    STATE of Louisiana In the Interest of Darryl TATE.
    No. 13101.
    Court of Appeal of Louisiana, First Circuit.
    March 31, 1980.
    Richard Miller, Probation Officer, Leono-ra C. Estes, for plaintiff-appellee State of Louisiana.
    Gail H. Ray, Baton Rouge, for defendant-appellant Darryl Tate.
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

Except for variations in the history of appellant prior to being sent to Greenwell Springs Hospital, and for the fact that appellant herein pleaded guilty to two offenses rather than three and was given two terms of six months to be served consecutively, the relevant facts and legal issues involved in this case are the same as those involved in No. 13,098, 385 So.2d 311 “State of Louisiana in the Interest of Randy Wayne Winstead,” being decided today.

For the reasons expressed in that case, the judgment is affirmed at the cost of the State of Louisiana.

AFFIRMED.


text:
    Corrie ARMSTRONG d/b/a Villa Realty v. Donald L. LeJEUNE.
    No. 13178.
    Court of Appeal of Louisiana, First Circuit.
    March 31, 1980.
    William R. Carruth, Baton Rouge, for plaintiff-appellee Corrie Armstrong d/b/a Villa Realty.
    Arthur J. Boudreaux, III, Baton Rouge, for defendant-appellant Donald L. LeJeune.
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

This is a suit for real estate commission brought by Corrie Armstrong, doing business as Villa Realty, against Donald Le-Jeune. Mr. LeJeune appealed the trial court’s judgment awarding Villa Realty $2,152.38 in commission plus interest and costs.

On June 21, 1976 Raiford E. Winstead, as seller, and Donald L. LeJeune, as purchaser, entered into a buy-sell agreement, which provided that the sale was contingent upon the sale of LeJeune’s then home and that LeJeune’s purchase of the Winstead home would take place within 5 days after Le-Jeune closed the sale of his home. Handwritten in the agreement was a provision that the agreement would expire on July 14,1976, subsequently mutually extended in writing to July 26, 1976. Through no fault of Mr. LeJeune, the sale of his home was not completed until August 10, 1976. Mr. LeJeune thereafter refused to purchase the Winstead home, asserting that the obligation to purchase expired on July 26, 1976, when the suspensive condition had not been met.

The trial judge based his decision on Luna v. Atchafalaya Realty, Inc., 325 So.2d 835 (La.App., 1st Cir. 1976) and on his findings that time was not of the essence and that the contract remained in existence on August 10, 1976, since neither party had previously put the other in default.

In the Luna case, the purchase agreement provided that the act of sale was to be passed “on or prior to April 7, 1973.” This date was not met due to delay in processing of the loan. The vendee thereafter refused to comply with the purchase agreement. The judgment of the trial court granted forfeiture of the deposit to the vendor and granted the real estate company its commission and attorney fees. This court, affirming the trial judge, found that there was no provision in the contract providing that time was of the essence and no evidence outside the contract from which it could be concluded that time was of the essence. The court went on to find that time not being of the essence and title never having been tendered nor demanded on or prior to April 7, 1973, neither party was in default and vendor had a right to put vendee in default under the contract in spite of his failure to do so prior to April 7.

The suspensive condition in Luna, the ability within twenty-one days to obtain a loan at a set percentage, to be repaid in monthly installments for twenty-five years had been met. The contract thereby was made viable and enforceable. The failure to effect the closing on the set day, a term of the contract, not a condition, was therefore subject to the codal provisions governing default. In the present contract, the suspensive condition, sale of LeJeune’s home prior to the expiration date, left the contract expired and unenforceable with no terms to which to apply the codal articles on default.

Instead, we find applicable the case of Parker Mead, Inc. v. Cutrer, 239 So.2d 729 (La.App. 1st Cir. 1970), holding that without satisfaction of the suspensive condition of the securing of financing “at the expiration of the time period stated in the contract, the contract itself expired and along with it, the obligations of both parties involved.” La.C.C. Art. 2038; Boudreaux v. Elite Homes, Inc., 259 So.2d 669 (La.App. 4th Cir. 1972); Welsh v. Myatt, 164 So.2d 393 (La.App. 2d Cir. 1964); Soudelier v. Whitney, 141 So.2d 91 (La.App. 1st Cir. 1962).

For these reasons the judgment of the trial court is reversed and there is now judgment dismissing the suit. All costs are assessed against the appellee.

REVERSED AND RENDERED.


text:
    Alvin HOLLAND v. AETNA LIFE & CASUALTY INSURANCE CO. et al.
    No. 13220.
    Court of Appeal of Louisiana, First Circuit.
    March 31, 1980.

      Hobart 0. Pardue, Jr., Springfield, for plaintiff.
    Iddo Pittman, Jr., Hammond, for defendants.
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

Appellants, Aetna Life & Casualty Insurance Co. and Billups Western Petroleum Co., seek to set aside a judgment rendered on a confirmation of default.

In October of 1978, plaintiff-appellee, Alvin Holland, individually and on behalf of his minor daughter, Cheryl, filed a petition for damages against Billups, Billups’ alleged insurer, Aetna, and Ronnie Hayes. The petition alleged that Ronnie Hayes, an employee of Billups, negligently removed the radiator cap on Cheryl’s car causing scalding water to spray on Cheryl’s arms and back, resulting in burns and permanent scarring.

Aetna was served on October 18, 1978; Billups was served on October 19, 1978, and Hayes was not served. Apparently, due to negotiations, Aetna did not file an answer to the suit and counsel for Holland delayed further judicial action. Thereafter, by letter dated February 26, 1979, Holland’s counsel advised Aetna that he insisted on an answer being filed within fifteen (15) days of receipt of the letter if some response to his settlement offer was not received.

Aetna failed to answer and a preliminary default was taken on March 21, 1979. On April 27,1979, appellee’s case was presented on confirmation of default and the matter was taken under advisement. Judgment was subsequently signed in favor of Holland personally in the sum of $680.00 and as natural tutor of Cheryl in the sum of $60,-000.00. Expert fees and interest, plus costs, were also awarded.

“In order to confirm a judgment of default, the plaintiff must prove the essential elements of the claim by competent evidence with legal certainty, as fully as though each allegation was specifically denied by the defendant.” Bonfouca Inv. Corp. v. Eubanks, 347 So.2d 1277 (La.App. 1st Cir. 1977).

We find the proof herein to be deficient. Competent evidence of plaintiff’s claim under an insurance policy is the insurance contract itself. However, the policy was not introduced into evidence. Citing us to the case of Succession of Rock v. Allstate Life Ins. Co., 340 So.2d 1325 (La.1976), counsel for appellee contends that it was not necessary to introduce the insurance contract since the record contains letters by plaintiff’s counsel directed to Aetna.

Succession of Rock, supra, is clearly distinguishable from the present case. In that case the Supreme Court stated that “(T)he requirement that the contract be made part of the record to support this default judgment is supplied by the admission of facts resulting from Allstate’s failure to deny the matters of which an admission was requested.” In the present case there was no request for any admissions in accordance with C.C.P. Art. 1496.

We find that the letters do not constitute competent evidence of proof of the insurance contract. They were written by appel-lee’s counsel and these cannot in any way be interpreted as admissions of Aetna.

Appellee’s proof is also deficient in other respects. No evidence was introduced to establish that the person removing the radiator cap was actually an employee of Bill-ups, or that Billups was otherwise liable. The major portion of the proof of damages consisted of the deposition of a doctor taken without notice and improperly introduced and received into evidence, even though clearly hearsay and without agreement.

For the foregoing reasons, the judgment of the trial court is reversed and the case is remanded to the trial court for further proceedings. Appellee is to bear costs of this appeal.

REVERSED AND REMANDED.


author: PONDER, Judge.

text:
    Robert M. BALDWIN v. Dr. Laxmi HEGDE et al.
    No. 13173.
    Court of Appeal of Louisiana, First Circuit.
    March 31, 1980.
    Rehearing Denied June 9, 1980.

      Robert L. Menuet, Napoleonville, for plaintiff-appellant.
    W. Luther Wilson, Taylor, Porter, Brooks & Phillips, Baton Rouge, for defendants-ap-pellees.
    Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

Plaintiff appealed from the judgment denying recovery in this medical malpractice case.

The sole issue is the correctness of that judgment.

We affirm.

Plaintiff suffered from a kidney stone. His regular physician called in defendant, a specialist in urology, who performed a cys-toscopic procedure to remove the stone.

After surgery, defendant saw plaintiff once to check on his recovery, and then left him under the care of his general practitioner.

Plaintiff began suffering severe pain and swelling in the abdomen. After his doctor tried unsuccessfully to reach defendant, she called in another urologist. When it was determined there was a tear in the ureter, emergency surgery was performed. Still another operation was needed two months later, but plaintiff had completely recovered at time of trial.

Plaintiff’s suit for malpractice claimed that the cystoscopy was negligently performed; that defendant negligently perforated the ureter; that defendant was negligent in the procedures he followed post surgery; and that defendant did not fully inform plaintiff of all the complications involved in a cystoscopic procedure.

There was no evidence that the surgery was negligently performed or that the ureter was negligently perforated. The only urologist other than defendant who testified was Dr. Leonard who performed the second and subsequent surgeries on plaintiff. Neither doctor could say definitely that it was defendant who perforated the ureter. Both said it was possible the stone itself was the cause of the tear. Both agreed that perforation of the ureter is not uncommon in a cystoscopic procedure, happening about 10% of the time and normally not serious.

Even plaintiff’s expert, Dr. Leonard, testified that because it was not possible for an operating specialist from another city to keep a close postoperative watch on the patient, it was common practice for the general practitioner who had called in the specialist to be left in charge. We find no negligence.

There was no evidence that defendant’s failure to warn plaintiff of a possible tear in the ureter was negligent. Both doctors stated they told their patients that there were risks involved in such an operation but that the risks of other procedures were greater. Defendant stated he told plaintiff that there were risks but that plaintiff never inquired further concerning them.

We can find no manifest error in the decision of the trial court. Therefore, the judgment is affirmed at appellant’s costs.

AFFIRMED.


text:
    Coley DAVIDSON v. NEW ROADS MOTOR COMPANY, INC. and Ford Motor Company.
    No. 13176.
    Court of Appeal of Louisiana, First Circuit.
    March 31, 1980.
    Rehearing Denied June 9, 1980.

      Andre C. Broussard, Hebert & Moss, Baton Rouge, for plaintiff-appellant.
    A. S. Easterly, III, Taylor, Porter, Brooks & Phillips, Baton Rouge, for defendant-ap-pellee-Ford Motor Co.
    Paul Marks, Jr., Dale, Owen, Richardson, Taylor & Mathews, Baton Rouge, for defendant-appellee-New Roads Motor Co.
    Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

Plaintiff appealed the judgment granting a reduction in price but denying rescission of the sale in this redhibition action.

The issues are the correctness of the granting of quanti minoris but denying rescission; and the attorney’s fees.

We amend the judgment to allow a rescission of the sale and to increase the attorney’s fees and then affirm.

Plaintiff purchased a Lincoln Continental Mark V for a cost in excess of $16,000.00. From the beginning there were problems with the car: the paint was “bubbled” in places, the rocker panel was damaged, rain water collected on the interior floor, the garnish molding was loose, the outside rear-view mirror was loose, there was no light under the hood, an armrest was torn, and the hood was not properly aligned. Shortly after the sale, squeaks, rattles and vibrations developed. A spring in the driver’s seat broke and the seat motor did not operate properly. Plaintiff noticed that the upholstery was not tacked down and there were loose wires hanging under the dash.

Even more serious problems began to manifest themselves. The car began to overheat just three months after purchase and it was difficult to keep water in it. There was one instance when oil mixed with antifreeze came out of the dipstick hole. The pulley on the power steering sheared off. The E.G.R. plate was leaking. The engine would not start for two months. The ignition module and the intake manifold were changed. The power steering and brakes needed adjustment. The transmission was noisy. Plaintiff testified that the drive shaft felt loose. The emergency brake would not release and a window had to be pulled up manually.

Plaintiff brought his car back to the dealer approximately seven times in the first eleven months. The number is uncertain because on several occasions no ticket was written by the service department and,on other occasions the tickets were “lost” by the dealer. Plaintiff also brought his car to two dealers in Baton Rouge for repairs. He had to have it towed three times, twice in the first year he owned it and a third time in three more months.

Plaintiff called the Ford Motor Company in Michigan twice and in New Orleans twice seeking help. He testified he received no relief.

Plaintiff continues to have difficulties with the car. Water still collects inside the car when it rains, the paint has not been repaired, and neither the seat motor nor the front window operate properly.

Civil Code Article 2520 states:

“Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice.”

Multiple defects can collectively form the basis of a redhibitory action even though many of the defects are minor or have been repaired. Cangelosi v. McInnis Peterson Chevrolet, Inc., 373 So.2d 1346 (1st Cir. 1979) and Perrin v. Read Imports, Inc., 359 So.2d 738 (4th Cir. 1978).

Latent defects appearing well after the sale can be a basis for redhibition if they are not the normal result of ordinary use. Moreno’s Inc. v. Lake Charles Catholic H.S., Inc., 315 So.2d 660 (La.1975) and Perrin, supra.

Plaintiff purchased a luxury car for which he paid a considerable sum of money. It was a car he dreamed of owning for years and he understandably had high expectations of its performance. The manufacturer and the dealer contributed to these expectations.

Defendants did not refute the testimony of plaintiff and his witnesses as to the existence of the problems. They offered no alternative explanation for the defects nor did they deny the many attempts of plaintiff to resolve the problems. There was no proof that plaintiff abused the vehicle.

Defendants argue that plaintiff did not tender the car for repairs, because, after eighteen months of frustrations, he refused to allow defendants to try to remedy the situation and instead decided to file suit. Defendants’ position is untenable. The plaintiff had been complaining of the water in the car since the first month of purchase. The dealer had full knowledge of all plaintiff’s complaints. Plaintiff tendered the car for repairs over seven times to defendant dealer and two Baton Rouge dealers.

Plaintiff has shown a pattern of defects in the vehicle which rendered its use inconvenient and imperfect. He stated that he would not have purchased it had he known of the defects. We feel that a reduction in price would not adequately compensate plaintiff. While some of the defects were minor and some had been repaired, there were significant major defects which were never remedied. The accumulation of all the vices complained of convinces this court that plaintiff is entitled to a total rescission of the sale.

The invoice admitted into evidence shows that the cash price of the vehicle was $12,600.00 to which were added the amounts of $9.80 for title and license, $378.00 for state tax, $878.00 for parish tax, $566.98 for credit life insurance and $2,741.62 for finance charge, making a total of $16,674.40.

Plaintiff testified to and submitted bills for $31.70, $132.72, and $225.40 for repairs paid to others than the dealer and for $13.78 and $16.81 for car rental. We believe he is entitled to recover for these.

Admittedly, plaintiff had driven the car about 16,000 miles at the time of trial. We think defendant should be allowed a credit of $2,400.00. In addition, there will be credits arising from the cancellation of the credit life insurance and the prepayment of the balance of the note. The defendants should be given these credits.

Therefore, we grant plaintiff $14,694.81 less the amounts resulting from the cancellation of the credit life insurance and the prepayment of the loan.

Plaintiff has requested attorney fees of $4,300.00 for the trial and the appeal. We award plaintiff $3,000.00 in attorney fees for the trial and $500.00 attorney fees for the appeal for a total of $3,500.00 attorney fees against Ford Motor Company.

New Roads Motor Company, Inc. by third party demand requested indemnity against Ford Motor Company for any and all sums owed by it to plaintiff as well as for $2,043.00 in attorney fees. We grant New Roads Motors complete legal indemnity against Ford Motor Company and we grant New Roads Motors $1,500.00 in attorney fees.

We therefore amend the judgment of the trial court. We grant judgment in favor of the plaintiff and against the defendants ordering the rescission of the sale; we further grant judgment in favor of the plaintiff and against the defendants in solido in the amount of $14,694.81 plus legal interest from the date of judicial demand; less the credit received from the cancellation of the credit life insurance and the prepayment of the loan; we grant judgment in favor of plaintiff and against Ford Motor Company in the amount of $3,500.00 as attorney fees. We also grant judgment in favor of third party plaintiff New Roads Motor Company, Inc., against third party defendant Ford Motor Company for complete legal indemnity for any sum it may owe to plaintiff as a result of this litigation and also for $1,500.00 in attorney fees.

All costs at both the trial level and on appeal are assessed to defendant Ford Motor Company.

AMENDED AND AS AMENDED AFFIRMED.


text:
    Dr. Victor H. TIENSUU v. The BOARD OF SUPERVISORS OF SOUTHERN UNIVERSITY AND A & M COLLEGE.
    No. 13183.
    Court of Appeal of Louisiana, First Circuit.
    March 31, 1980.

      Joseph R. Raggio, Baton Rouge, for plaintiff-appellee Dr. Victor H. Tiensuu.
    William J. Guste, Jr., Atty. Gen., Julius X. Johnson, Asst. Atty. Gen., Baton Rouge, for defendant-appellant The Board of Supervisors of Southern University & A & M College.
    Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

Defendant appealed from the judgment awarding plaintiff penalties and attorney’s fees under La.R.S. 23:632.

The sole issue is the propriety of that award. We reverse.

Plaintiff entered into an employment contract with defendant for the 1977-1978 academic year. A provision of the contract stated:

“All appointments are subject to applicable policies and regulations of the Southern University Board of Supervisors and all employees are expected to adhere to Board and/or administrative policies as they relate to them.”

The university had established certain check-out procedures for the end of each academic year. A final pay check was not issued until these had been completed. Plaintiff did not complete these procedures at the end of the term of his contract and his check was withheld.

Plaintiff never officially resigned or gave notice of intention to resign. At the beginning of the next academic year, plaintiff did not report for work.

After unsuccessfully attempting to affect compliance with said procedures, the university discharged plaintiff and sent him all past due wages by certified mail just prior to the trial of plaintiff’s suit for his salary plus penalties and attorney’s fees.

Plaintiff claims his employment terminated at the end of the contract period and his wages were withheld from him in violation of LSA-R.S. 23:631 and 632. These statutes provide that upon the discharge or resignation of any employee the employer must pay the wages due under the terms of employment within three days. If this is not done, the employer is liable for a penalty payment of wages for the delay up to ninety days at the employee’s rate of pay.

The statute is penal in nature and must be strictly construed. Harrison v. First National Funeral Homes, Inc., 244 So.2d 102 (La.App. 3rd Cir. 1971), writ not considered 246 So.2d 195, 258 La. 345.

The statute does not apply to state agencies. Hays v. Louisiana Wild Life and Fisheries Com’n., 165 So.2d 556 (La.App. 1st Cir. 1964), writ refused 246 La. 855, 167 So.2d 672. Defendant is a state agency.

For these reasons the judgment of the trial court is reversed at appellee’s costs.

REVERSED.


text:
    Hoyt Larry BOYD v. Michael “Mike” KEMP.
    No. 13189.
    Court of Appeal of Louisiana, First Circuit.
    March 31, 1980.
    L. B. Ponder, Amite, for plaintiff.
    Herbert R. Alexander, Bogalusa, for defendant.
    Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

Defendant appealed from the judgment granting damages for injuries.

The sole issue is the credibility of the witnesses.

We affirm.

Plaintiff’s wife had filed for a separation and had an injunction issued to prevent plaintiff from harassing her. Plaintiff went to his wife’s place of employment to speak with her, he said, in an effort to reconcile with her.

She arrived with defendant in defendant’s car, sometime after plaintiff. Plaintiff, angry, seized a tire tool, ran to defendant’s car and began smashing windows. Defendant drove a few feet and was stopped by a median.

Thereafter, while the exact sequence of events is unclear, apparently, plaintiff began to walk away. Defendant stepped out of the car and shot plaintiff in the leg. Plaintiff then began to run and defendant shot him again. Plaintiff crawled to a nearby fire station for help. Defendant asserts that plaintiff was still near and advancing when he was shot both times.

The trial court accepted plaintiff’s version of the disputed facts: that plaintiff was not at the parking lot to harass his wife; that he was retreating at the time he was shot; and that defendant was not in any danger of being attacked at the time he shot plaintiff. It awarded plaintiff $24,-958.97 in general and special damages and then awarded defendant $450.00 on the re-conventional demand for the damages to his car.

We find no error. Therefore the judgment of the trial court is affirmed at appellant’s costs.

AFFIRMED.


text:
    GENERAL TRUCK DRIVERS, WAREHOUSEMEN AND HELPERS LOCAL UNION NO. 5 v. ALTEX READY-MIXED CONCRETE CORPORATION.
    No. 13194.
    Court of Appeal of Louisiana, First Circuit.
    March 31, 1980.
    Lawrence R. Anderson, Jr., Baton Rouge, for plaintiff-appellant, General Truck Drivers.
    G. Michael Pharis, Baton Rouge, for defendants-appellees, Altex Ready Mixed Concrete Corporation, et al.
    Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

Plaintiff appealed from the dismissal with prejudice of its suit for breach of a collective bargaining agreement on an exception of res judicata.

The issues are that of the correctness of the dismissal and jurisdiction.

We reverse.

Plaintiff and Altex Ready Mixed Concrete Corporation entered into a collective bargaining agreement effective from February 17,1975 until February 19,1978. The agreement contained a provision that if Al-tex or its owners directly or indirectly, through subsidiaries or otherwise, acquired a controlling interest in additional operations or businesses of a similar nature, the employees covered by the jurisdiction of the union would be employed under the same terms and conditions as the agreement provided for Altex, provided they were not already represented by another labor organization. Plaintiff filed suit against Altex, B & B Gravel Co., Inc., Wallace Heck, Sr., Wallace Heck, Jr., Janet Heck and Shirley Heck for breach of this agreement. Plaintiff claimed that B & B Gravel and Amco Construction Company were such acquisitions. This suit was dismissed with prejudice by plaintiff.

Plaintiff and Altex entered into a new contract effective March 16,1978 until February 22, 1981. This agreement had the same provisions relevant in this suit as the previous agreement.

Plaintiff filed suit against Altex, Amco Construction Company, Wallace Heck, Sr., Wallace Heck, Jr., Raymond Heck, Shirley Heck and Janet Heck. Plaintiff again claimed Amco Construction was an acquisition that fell under the provision. The trial court sustained an exception of res judicata because of the dismissal of the first suit.

Appellant raises the question of the jurisdiction of the court on the ground that the National Labor Relations Board has exclusive jurisdiction over representational cases. We believe the lower court had jurisdiction to determine whether the contract between plaintiff and defendant was breached. The issue of an unfair labor practice was not before the court. The court did not consider appropriateness of the bargaining unit, a matter within the exclusive jurisdiction of the National Labor Relations Board. Therefore we find the trial court correctly overruled the exception to subject matter jurisdiction. William E. Arnold Co. v. Carpenters District Council, 417 U.S. 12, 94 S.Ct. 2069, 40 L.Ed.2d 620 (1974).

Res judicata requires the identity of the thing demanded, the cause of action, and parties in the same capacity. Civil Code Article 2286. Miller v. East Ascension Telephone Company, Inc., 331 So.2d 182 (La.App. 1st Cir. 1976). There is no doctrine of collateral estoppel in Louisiana. Welch v. Crown Zellerbach Corp., 359 So.2d 154 (La.1978).

The doctrine is strictly construed. Coates Equipment & Service, Inc. v. Glover, 181 So.2d 455 (1st Cir. 1965). Any doubt as to compliance with the requirements is to be resolved in favor of the plaintiff.

In the first suit, Amco Construction was named in the petition but was never served. Therefore, the judgment can have no effect as to Amco Construction.

The contract, though its relevant provisions were the same as those in the contract involved in the first suit, was an entirely new one for a different time period and containing provisions that were different. An action for breach of the second contract is entirely different from an action for breach of the first. It is true that the remedies sought in the two suits are identical, but the remedies arise from different contracts. Sliman v. McBee, 311 So.2d 248 (La.1975), especially page 255 and footnote 14. The plea of res judicata therefore should have been overruled.

Therefore, the judgment of the trial court is affirmed in part and reversed in part. The case is remanded for other proceedings not inconsistent with the findings of this decision. The appellees are assessed with all costs of the appeal.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.


text:
    Webb J. POLITE et al. v. Reuben M. NEWMAN et al.
    No. 13512.
    Court of Appeal of Louisiana, First Circuit.
    March 31, 1980.

      Kenneth J. Berke, New Orleans, for appellants.
    Charles S. McCowan, Jr., Baton Rouge, for appellees.
    Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

We issued a rule to show cause why an unlodged appeal should not be dismissed after appellee had moved for the dismissal.

The trial court denied a request by defendant for the appointment of a surveyor in a possessory action. The defendant moved for a new trial; the trial court denied the motion. Defendant then moved for a devolutive appeal 'from the judgment denying a new trial of the motion. There is no appeal from a judgment denying a new trial absent a showing of irreparable injury. Jackson v. Watson, 360 So.2d 582 (La.App. 4th Cir. 1978). Appellant has made no such showing.

APPEAL DISMISSED.


author: EDWARDS, Judge.

text:
    BAMBER CONTRACTORS, INC. v. MORRISON ENGINEERING & CONTRACTING COMPANY, INC.
    No. 13222.
    Court of Appeal of Louisiana, First Circuit.
    March 31, 1980.
    Rehearing Denied June 20, 1980.

      Charles W. Lamar, III, Breazeale, Sachse & Wilson, Baton Rouge, for plaintiff-appellant.
    Bert K. Robinson, and Eric A. Kracht, Wray, Robinson & Mary, Baton Rouge, for defendant-appellee.
    Before EDWARDS, LEAR and WATKINS, JJ.
   EDWARDS, Judge.

Bamber Contractors, Inc., plaintiff-appellant, seeks reversal of a trial court judgment rejecting Bamber’s demands against Morrison Engineering & Contracting Company, Inc., defendant-appellee herein. We affirm.

I. FACTS

Bamber Contractors, a company involved in highway and levee construction work, was, in August of 1971, the owner of several Euclid bottom dumps, a type of earth moving equipment.

On August 26, 1971, one Morris Kibo-deaux, needing two Euclids, leased them from Bamber at a rate of $1,500.00 per month per Euclid. Kibodeaux signed the separate leases:

“By Kibodeaux & Spell
For Morrison Eng. & Contr. Co.
For Allen Parish Dam Job
By — Morris Kibodeaux”

Subsequent to Kibodeaux’s taking possession of the Euclids, Bamber mailed invoices directly to the Morrison Engineering & Contracting Co., Inc. In each case, for the three-month period from August 26, 1971, through November 25,1971, payment in full was tendered either by Morrison Engineering or by Pointe Coupee Constructors, Inc., a distinct corporation entirely owned by parties who also were shareholders of Morrison Engineering. The final payment of rent was made on November 8, 1971.

On November 23, 1971, John L. Morrison, Jr., an officer in both Morrison Engineering and Pointe Coupee, sent the following letter to Bamber:

“Mr. James Bamber
Bamber Contractors, Inc.
P. 0. Box 128
Denham Springs, La.
Re: Equipment Rent
Dear Mr. Bamber:
The next month’s rent on your two belly dumps is due for one month in advance on November 25,1971. Please consider this a notice that Pointe Coupee Constructors, Inc. or Morrison Eng. & Contr. Co., Inc. is no longer renting these peices (sic) of equipment from you.
You may pick up your equipment any time after the date of renewal. Thank you very much for your co-operation.
Very truly yours,
Morrison Eng. & Contr. Co., Inc. by /s/ John L. Morrison Jr.
John L. Morrison Jr.”

An unidentified party or parties returned the Euclids to Bamber’s equipment yard over the Thanksgiving weekend of November 25-29. On returning to work, James E. Bamber, Sr., President of Bamber Contractors, inspected the Euclids and wrote a report detailing the extensive damage which had occurred during the period the Euclids were leased.

Correspondence between Bamber Contractors and Morrison Engineering failed to resolve Bamber’s claim that Morrison was responsible for damage to the Euclids. The present litigation ensued.

At trial, Bamber sought to prove that:

1. Morrison Engineering was lessee of the Euclids.
2. Morrison had made Kibodeaux its agent and, as principal, was liable for the damaged Euclids.
3. Morrison ratified Kibodeaux’s act of leasing the Euclids.
4. Morrison was estopped to deny that it was lessee of the Euclids.

Following trial, judgment was rendered in favor of Morrison Engineering on the basis that Bamber failed to carry its burden of proof. Bamber appeals on the same grounds found insufficient by the trial court.

II.MORRISON AS LESSEE

It is difficult to imagine how much the facts of this case would have to be distorted for us to find that Morrison Engineering itself leased the Euclids from Bam-ber. No officer, director, shareholder or employee of Morrison ever even approached Bamber regarding the equipment, much less signed a lease for it. Nor was such an allegation made. To the contrary, the leases were signed by Morris Kibodeaux on behalf of Kibodeaux & Spell, a separate and distinct company. Morrison Engineering clearly was not the lessee of Bamber.

III.KIBODEAUX AS AGENT

Bamber urges that Morrison clothed Ki-bodeaux with apparent authority to lease the Euclids and that, as principal, Morrison is liable for the damage.

Apparent authority is a jurisprudential creation and, in contrast to the express authority of LSA-C.C. Art. 2997 or the implied but actual authority of LSA-C.C. Art. 3000, amounts to no authority at all. Apparent authority is a concept of estoppel operating in favor of a third party seeking to bind a principal for the unauthorized act of an agent. Broadway v. All-Star Insurance Corporation, 285 So.2d 536 (1973).

Two requirements must be met for the doctrine of apparent authority to apply. First, the principal must make some form of manifestation to an innocent third party. Second, the third party must rely reasonably on the purported authority of the agent as a result of the manifestation. Lilliedahl & Mitchel, Inc., v. Avoyelles Trust & Savings Bank, 352 So.2d 781 (La.App. 3rd Cir. 1977).

If these requirements have been met, the principal will be bound by the agent’s acts, which, although beyond his actual authority, were within his apparent authority. Pailet v. Guillory, 315 So.2d 893 (La.App. 3rd Cir. 1975). The burden of proving apparent authority is on the party relying on the mandate. Vermilion Bank & Trust Company v. Miller, 284 So.2d 662 (La.App. 3rd Cir. 1973); Builders Center, Inc. v. Smith, 228 So.2d 245 (La.App. 1st Cir. 1969).

A third party seeking benefits from the apparent authority doctrine may not have blindly relied on the assertions of an agent. One dealing with an agent, by the mere fact of agency, is given the right and duty to determine, at his peril, whether the agency purportedly granted by the principal will permit the proposed act by the agent. Carey Hodges Associates, Inc. v. Continental Fidelity Corporation, 264 So.2d 734 (La.App. 1st Cir. 1972); Buckley v. Woodlawn Development Corporation, 233 La. 662, 98 So.2d 92 (1957); Herbert v. Langhoff, 185 La. 105, 168 So. 508 (1936).

In this case, the facts do not support a finding of apparent authority.

Mrs. James E. Bamber, Sr., testified that John L. Morrison, Sr., President of both Morrison Engineering and Pointe Coupee Constructors, had phoned her and stated that his company wanted to rent Euclids and would guarantee the rent. Mr. Morrison flatly contradicted her testimony. The trial court evidently believed Mr. Morrison and, despite appellant’s characterization of Mr. Morrison’s testimony as “vague and evasive” in contrast to Mrs. Bamber’s “open and candid” story, such an evaluation is fully supported by the record. Arceneaux v. Domingue, 365 So.2d 1330 (1978).

While Morrison Engineering or Pointe Coupee Constructors paid $9,000.00 directly to Bamber in rentals for the Euclids, such payment was made solely on behalf of Ki-bodeaux and not because Morrison Engineering owed anything.

On February 9, 1971, Morrison Engineering entered into a contract with the State to perform work on a dam and spillway near Kinder. After a small portion of the work had been performed, labor troubles surfaced and, to avoid further problems, Morrison assigned the contract to Pointe Coupee Constructors. That was on July 28, 1971. On August 6, 1971, Pointe Coupee assigned the contract to Morris Kibodeaux. As assignee, Kibodeaux agreed to “furnish all labor, materials and equipment^)” Because Kibodeaux’s reputation was thought somewhat undesirable, and to avoid possible liens, Pointe Coupee Constructors paid all Kibodeaux’s bills as they came due and subtracted the payments from the amount due Kibodeaux under the assignment to him. Thus, the $9,000.00 paid to Bamber was paid on behalf of Kibodeaux and not because Morrison Engineering owed anything.

The most favorable evidence to Bamber’s claim is the November 23, 1971, letter from John L. Morrison, Jr., supra. Despite language in the letter which seems to indicate that rental of the Euclids was by Morrison or Pointe Coupee, the testimony at trial explaining Pointe Coupee’s practice of paying Kibodeaux’s bills clearly demonstrates that the letter was only notice to Bamber that neither Morrison Engineering nor Pointe Coupee Constructors would stand behind Kibodeaux after November 25. Furthermore, since the letter was written three months after the original leasing, any probative value that it might have would go toward Bamber’s claim that Morrison Engineering ratified Kibodeaux’s acts. In no way could a letter written three months after the act clothe Kibodeaux with apparent authority at a previous time.

Finally, we note that Bamber made no effort to ascertain whether Kibodeaux had any authority to bind Morrison. In fact, James Bamber’s own testimony was that he knew of Kibodeaux as a subcontractor.

The trial court correctly denied plaintiff’s claim that Kibodeaux had apparent authority to act for Morrison Engineering.

IV. RATIFICATION

Morrison Engineering never ratified the acts of Kibodeaux.

Unless a principal expressly ratifies the acts of an agent who has exceeded his authority, the agent alone is bound. LSA-C.C. Arts. 3010, 3013, 3021.

Ratification, in the law of agency, is the adoption by one person of an act done on his behalf by another without authority. Ratification amounts to a substitute for prior authority. Ledoux v. Old Republic Life Insurance Company, 233 So.2d 731 (La.App. 3rd Cir. 1970), writ refused 256 La. 372, 236 So.2d 501 (1970). The burden of proving ratification is on the party asserting it, Tyson v. Robinson, 329 So.2d 781 (La.App. 2nd Cir. 1976), and to find ratification of an unauthorized act, the facts must indicate a clear and absolute intent to ratify the act, and no intent will be inferred when the alleged ratification can be explained otherwise. Nationwide Finance Co. of Gretna, Inc. v. Pitre, 243 So.2d 326 (La.App. 4th Cir. 1971). Ratification will occur when the principal, knowing of the contract, does not repudiate it but accepts its benefits. Gallioto v. Trapani, 238 La. 625, 116 So.2d 273 (1959); Ledoux, supra.

It is obvious that Kibodeaux, as subcontractor, and not Morrison Engineering received the use and benefit of the Euclids. Further, the invoices mailed by Bamber and subsequently paid by Pointe Coupee recited that Kibodeaux and Spell was “your sub contractor(.)” Clearly, Morrison had no reason to repudiate anything since the invoice was sent and paid pursuant to the billing and payment practice previously described.

The November 23,1971, letter, correspondence between James Bamber and John L. Morrison, Jr., covering the period from January 11-24,1972, and the testimony of John L. Morrison, Jr. (T 236-7), are plaintiff’s only reasonable bases for claiming ratification. Morrison’s letter of January 18, 1972, was evasive at best and his explanation at trial was openly hostile despite claims that he only wrote the letter in an attempt “to help Mr. Jimmy (Bamber).” Nevertheless, neither Morrison’s letter nor his testimony even begins to satisfy the requirement that ratification be clearly intended. Nationwide Finance Co. of Gretna, Inc. v. Pitre, supra. The letter of November 23 has already been shown to be nothing more than a notice to Bamber that neither Morrison Engineering nor Pointe Coupee Constructors would continue to stand behind Kibo-deaux.

V. EQUITABLE ESTOPPEL

Equitable estoppel arises when one by his actions, or by his silence when he ought to speak, induces another to believe certain facts and the other relies on these facts to his prejudice. The estoppel is designed to foster justice by preventing the first party from taking a position contrary to his prior conduct. City of Bossier City v. Usery, 356 So.2d 1099 (La.App. 2nd Cir. 1978).

Morrison Engineering did no act which led Bamber to lease the Euclids to Kibodeaux. Nor did Morrison by silence induce Bamber to believe Kibodeaux was its agent. As stated, James Bamber viewed Kibodeaux as a subcontractor. Finally, the November 23, 1971, letter from Morrison to Bamber made clear that there would be no future backing for Kibodeaux. The letter was written after the period in which the Euclids were damaged and cannot possibly be construed as leading Bamber into a detrimental reliance. There is no basis for equitable estoppel.

Bamber’s claim that Morrison waited until trial in 1979 to deny being lessee is not well taken. We find that the evidence, taken as a whole, clearly amounts to a denial, despite Morrison’s letter of November 23, 1971. Furthermore, because Bam-ber waited five years to file suit, there was no reason for Morrison to make any formal denial.

Morrison never entered the lease as principal. Kibodeaux had no apparent authority when he entered the lease. Morrison never demonstrated a clear intent to ratify Kibodeaux’s unauthorized acts. Morrison never led Bamber into a detrimental reliance.

Plaintiff-appellant, Bamber Contractors, has simply failed to carry its burden of proof. Therefore, the trial court judgment is affirmed. All costs of these proceedings, both trial and appellate, are to be paid by Bamber Contractors, Inc.

AFFIRMED.


author: LEAR, Judge.

text:
    Mr. and Mrs. Willard COLLINS, Sr., et al. v. Charlton P. ROZANDS et al.
    No. 13228.
    Court of Appeal of Louisiana, First Circuit.
    March 31, 1980.
    Rehearing Denied June 9, 1980.
    Garic K. Barranger, Covington, for plaintiffs and appellants.
    Huntington B. Downer, Jr., Houma, for defendants and appellees Charlton P. Ro-zands & James Sears.
    Lawrence L. McNamara, New Orleans, for defendant and appellee Dr. Ray Cinna-ter.
    Joseph J. Weigand, Jr., Houma, for defendant and appellee Terrebonne Parish Park and Recreation Bd. & Intern. Surplus Ins. Co.

      Before EDWARDS, LEAR and WATKINS, JJ.
   LEAR, Judge.

Plaintiffs filed suit in behalf of their minor children alleging that their children were injured as a direct result of the negligence of certain elected and appointed public officials of Terrebonne Parish.

Plaintiffs allege that the Terrebonne Parish Parks and Recreation Board sponsored a class in karate which was open to the public, and that one Wayne Hunt was employed to teach the said course. Plaintiff, Brunet, further alleges that Wayne Hunt on separate occasions used the position, in which he was entrusted, to sexually abuse Brunet’s minor son. Plaintiff Collins alleges that when these acts of abuse were brought to the attention of the sheriff and coroner, neither responded promptly. In that ensuing period, Collins’ minor child was sexually assaulted. Plaintiffs allege that the board was negligent in hiring Hunt and that the sheriff and coroner breached their duty to investigate promptly these alleged acts of abuse.

Each of the named defendant-appellees, Coroner Ray Cinnater, Sheriff Charlton Ro-zands, and Deputy Sheriff James Sears, is insured by an insurance carrier which has been made a party defendant herein.

Defendants filed a motion pursuant to R.S. 42:261(E) to require plaintiffs to post a bond for attorneys’ fees, which plaintiffs opposed. Plaintiffs’ opposition was based on several factors: (1) All defendants were being represented by attorneys provided by their respective insurance carriers; (2) the provisions of R.S. 42:261(E) are unconstitutional; and (3) alternatively, plaintiffs should be permitted to proceed in forma pauperis. The trial court sustained defendants’ motion and ordered that plaintiffs post bond in the amount of $5,000.00, aggregate: $2,500.00 in reference to Rozands and James, and $2,500.00 in reference to Cinna-ter.

After plaintiffs failed to post bond within the time fixed by the trial court, the court granted judgments of partial dismissal in favor of defendants, Cinnater, Rozands and James. Plaintiffs-appellants now perfect this appeal.

The sole issue to be resolved by this court today is that of the application of R.S. 42:261(E) under the circumstances of this case. Although the record does not reflect that an evidentiary hearing was held, all counsel have conceded in argument that no attorney has been retained by defendants-appellees herein; that, in fact, all attorneys representing the respective defendants are provided by the insurer pursuant to contracts of insurance. When asked by the court during argument, “Who is footing the bill for ‘attorneys fees’ ?”, defense counsel readily conceded that the insurance carrier is incurring the cost of the defense of those defendants here sued.

R.S. 42:261(E) states in pertinent part:

“Any party who files suit against any duly elected or appointed public official of this state of [sic] or any of its agencies or political subdivisions for any matter arising out of the performance of the duties of his office . . . and who is unsuccessful in his demands, shall be liable to said public official for all attorneys fees incurred by said public official in the defense of said lawsuit or lawsuits, which attorneys fees should be fixed by the court.” (Emphasis added.)

The motion to furnish bond was filed by attorneys representing the sheriff and coroner, who, by their own concession, are retained and provided by the insurance carrier. There are no other attorneys of record representing the defendants.

R.S. 42:261(E) is, therefore, inapplicable under the circumstances of this case. The issue of its constitutionality, which looms ever larger in view of Article I, Section 22 of the Louisiana Constitution of 1974, is here pretermitted.

The judgment of the district court is reversed and the case is remanded; defendants-appellees are to pay all costs of these proceedings.

REVERSED AND REMANDED.

      . R.S. 42:261(E):
      “Any party who files suit against any duly elected or appointed public official of this state of [sic] or any of its agencies or political subdivisions for any matter arising out of the performance of the duties of his office other than matters pertaining to the collection and payment of taxes and those cases where the plaintiff is seeking to compel the defendant to comply with and apply the laws of this state relative to the registration of voters, and who is unsuccessful in his demands, shall be liable to said public official for all attorneys fees incurred by said public official in the defense of said lawsuit or lawsuits, which attorneys fees shall be fixed by the court.
      “The defendant public official shall have the right, by rule, to require the plaintiff to furnish bond as in the case of bond for costs, to cover such attorneys fees before proceeding with the trial of said cause.”