author: ELLIS, Judge: SAVOIE, Judge,

text:
    Kenneth L. HODGES, et al v. MISSOURI PACIFIC RAILROAD COMPANY, et al.
    No. 82-CA-0043.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 1982.
    Writ Denied Feb. 23, 1983.
    Robert Loren Kleinpeter, Baton Rouge, for plaintiffs-appellants Kenneth L. Hodges and Betty Devillier Hodges.
    Boris F. Navratil and Frank S. Craig, III, Rodney M. Ryan, Baton Rouge, for defendants-appellees and third party plaintiff Missouri Pacific R. Co., Texas Pacific R. Co., W.C. Holland and third party defendant.
    Robert H. Carpenter, Owen M. Goude-locke, Baton Rouge, for defendant-appellees State of La. through the Dept, of Transp. and Development.
    Before PONDER, SAVOIE and ELLIS, JJ.
   ELLIS, Judge:

This is a suit by Kenneth L. 'Hodges and Betty Devillier Hodges for the wrongful death of their son, Timothy Hodges. Defendants are Missouri Pacific Railroad Company, W.C. Holland, and the State of Louisiana, through the Department of Transportation and Development. After the plaintiffs rested their case, the defendants moved for a directed verdict. The motions were granted, and plaintiffs’ suit was dismissed. From the judgment of dismissal, plaintiffs have appealed.

Timothy Hodges was killed when the automobile he was driving crashed into a stationary tank car at the intersection of the Missouri Pacific track and Louisiana Highway 987-3. The record reveals that Highway 987-3 is a blacktop road, 20 feet in width, running east and west. The railroad is a single track line, running north and south. There is no appreciable change in the level of the highway at the intersection, which is protected by a crossbuck warning sign. The highway is straight for some distance approaching the crossing from the west, and there is no impediment to the view.

On the night of the accident a 65-car train was stopped while the engine was being turned around. The 18th car from the rear of the train was straddling Highway 987-3. Since the distance between the front and rear wheels was 42 feet, no part of the wheels or undercarriage of the car was on the roadway. The tank car was 13 feet nine inches high, had a clearance above the ground of 45 inches, and was painted white. Rocky DiBenedetto, the only eyewitness to the accident, testified that the tank car was gray and dirty, but that he had no difficulty in seeing it as he approached from the east.

Mr. DiBenedetto testified that he stopped his automobile at the crossing to wait for the train to move. He stated that he could see clearly under the tank car, and that he left his headlights burning, on dim. After a few minutes, he saw the Hodges vehicle approaching from the west, with its headlights burning, driving about 55 miles per hour. He testified that the car did not slow as it approached. It hit the tank car, passed beneath it, and wound up in a ditch on the east side of Louisiana Highway 1, which intersected Highway 987-3 about 80 feet east of the tracks. Young Hodges was pronounced dead at the scene.

The trial judge found that the fact that the intersection was unlighted, that the tank car was straddling the highway, and that one could see approaching traffic under the tank car were unusual circumstances which required the railroad to give special warning to approaching motorists. Since no such warning was given, he found that there was a prima facie showing of negligence on the part of the railroad, which was, of course, subject to rebuttal. However, he further found that Timothy Hodges, had he been paying attention and had he been keeping his vehicle under proper control, would have seen the railroad car blocking the road. He therefore found contributory negligence which barred recovery for young Hodges’ wrongful death.

Although we doubt the correctness of the finding of negligence on the part of the railroad, we pretermit consideration of that point, since we are of the opinion that the trial judge was correct in his finding of contributory negligence on the part of Timothy Hodges. The record shows that he had driven on the road before. The weather was clear and the road was straight and dry. The crossbuck sign was in place. The lights of the DiBenedet-to car were on dim, and should not have blinded Hodges. The law requires a motorist to stop for a railroad crossing when a train is near. R.S. 32:171; R.S. 45:563. A motorist approaching a railroad crossing is charged with seeing what he could have seen. Rodriguez v. Illinois Cent. Gulf R. Co., 395 So.2d 1369 (La.App. 1st Cir.1981).

We therefore find no error in the conclusion of the trial judge that Timothy Hodges failed to exercise the degree of care required by law, in that he failed to see what he should have seen. As the trial judge said: “... if he had been paying attention, would have seen this big white tank car ahead of him astraddle on the tracks.... Assuming he had his headlights on and assuming that he was paying attention and keeping his car under control, he should have seen the railroad car blocking the tracks.”

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

AFFIRMED.

SAVOIE, Judge,

dissenting.

I respectfully dissent.

It is well settled in Louisiana that each case involving a train-vehicle collision should be tried on its own facts and circumstances. Also, the party’s negligence is a matter of factual determination to be followed by application of proper law. Odom v. Hooper, 273 So.2d 510 (La.1973); Buchholz v. Dealers Transport Company, 399 So.2d 1303 (La.App. 4th Cir.1981). It is equally well settled that factual determinations by the trial court are not to be disturbed in the absence of clear (manifest) error. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); West v. Jones, 411 So.2d 532 (La.App. 1st Cir.1982); Rahm v. Exxon Corp., 399 So.2d 676 (La.App. 1st Cir.1981).

The unrebutted evidence presented by the plaintiffs supports the trial court’s finding of negligence on the part of Missouri Pacific Railroad Company (Mo-Pac). I quote from the trial court’s oral reasons for judgment:

“In this case, the court has heard the testimony of the witnesses and it appears that there were special circumstances attendant in this case. We have an unlighted intersection. There are no lights at all. You had a railroad ear which was blocking the intersection wherein you could see, under the car, approaching traffic. It seems to me, under those circumstances, even though there was a crossing or cross buck sign located at the intersection, in view of the fact it was not a well-lighted intersection and other circumstances attendant thereto, that the railroad should have at least had a flagman or someone out there, and in this instance, I think the plaintiff had indeed made a prima facie case of negligence against the railroad which, of course, can be rebutted on the presentation of the railroad’s case.”
$ $ $ sfc * s}:

I find no manifest error in the trial court’s determination as to MoPac’s negligence.

The trial court next addressed the question of contributory negligence, stating:

* * * * *
“The big problem with the plaintiffs’ case is one of contributory negligence. ... I think the deceased was, of course, required to operate his vehicle as a reasonably prudent person. I don’t know whether his operation of his vehicle on the night in question of this tragic accident was due to the fact he had had too many drinks or not. It may have very well been due to fatigue. It may have been due to other distractions, but there isn’t any question in my mind after hearing the plaintiffs’ case that the deceased was not paying attention to the road ahead and to the warning signals. The other driver who was on the opposite side of the railroad did come to a stop and was waiting for the train, and it seems to me that in this case, Mr. Hodges, if he had been paying attention, would have seen this big white tank-car ahead of him astraddle on the tracks. Now, I readily understand it was not the ideal situation, because as I said before, it had headlights that were showing underneath the car and there was no lighting in the area. Assuming he had his headlights on and assuming that he was paying attention and keeping his car under control, he should have seen the railroad car blocking the tracks.” (Emphasis ours).
* * * * * *

I do not find evidence in the record to substantiate a holding of contributory negligence. First, no evidence is presented to support a contention that the decedent had “too many drinks” or that he was fatigued. On the contrary, the testimony of Miss Renee Glaser who rode with him from Baton Rouge to New Roads was that his driving was “normal”. There was no testimony that decedent’s driving was impaired. Testimony under both direct and cross-examination supports the opposite conclusion. Rocky DiBenedetto’s testimony also supports this conclusion. Secondly, the trial court’s conclusion that because DiBenedetto was able to see the railroad car, the decedent should have been able to see it, is contrary to the evidence. By DiBenedetto’s own testimony, he:

1. Drove this road daily and knew the crossing was dangerous.
2. Actually knew of the train’s existence across La. Hwy. 987-3 because he had paralleled the railroad track prior to turning onto La. Hwy. 987-3.
3. Saw the jumbo tank-car in his lights due to the inclined approach from his side of La. Hwy. 987-3.
4. Had no car across the track from him with its lights on.
5. Had turned onto La. Hwy. 987-3 only 81 feet before the track

Contrast this with the plaintiffs’ evidence of the decedent’s position:

1. Decedent was not familiar with the danger of this crossing.
2. Did not actually know (or is presumed not to have actually known) of the existence of the train.
3. Could not see the jumbo tank-car because the lights from DiBenedetto’s vehicle were shining toward decedent from below the “high rise” tank-car.
4. The unobstructed headlights of DiBenedetto’s vehicle gave the impression of an unobstructed highway ahead.
5.Was traveling down a straight road with no apparent obstruction.

At this stage of the proceedings, the facts do not support by a preponderance of the evidence, a finding of contributory negligence.


source: Caselaw Access Project

author: LEAR, Judge.

license: Public Domain

text:
    William and Mary TRIGG v. CAMPER VILLAGE, INC. d/b/a Mobile Home Village of Denham Springs and DeRose Industries, Inc.
    No. 82 CA 0058.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 1982.
    Writ Denied Feb. 11, 1983.

      Keith B. Nordyke, Baton Rouge, James E. Kuhn, Denham Springs, for plaintiffs-ap-pellees.
    Sumpter Davis, III, Baton Rouge, for defendants-appellants.
    Before COVINGTON, LEAR and LANIER, JJ.
   LEAR, Judge.

William and Mary Trigg purchased a mobile home from Camper Village, Inc. during December of 1979. Alleging various redhi-bitory defects, plaintiffs filed suit on August 1, 1980, against Camper Village, Inc. d/b/a Mobile Home Village of Denham Springs and DeRose Industries, Inc., the manufacturer. Camper Village filed a third party demand against DeRose Industries for indemnification and attorney’s fees. After a trial on the merits, the court rendered judgment in behalf of the plaintiffs and against DeRose Industries, awarding plaintiffs $8,271.02 and rescinding the sale of the mobile home, and awarding plaintiffs $2,500.00 in attorney’s fees. In addition, the court rendered judgment in favor of Camper Village and against De-Rose Industries in the amount of $2,000.00 in attorney’s fees. DeRose Industries appealed and plaintiffs answered the appeal requesting additional attorney’s fees.

DeRose Industries argues on appeal that the trial court erred, first, in finding that defects existed at the time of the sale and, second, in finding that it, DeRose Industries, was responsible for those defects. Although plaintiffs alleged various minor defects in the mobile home (the back door leaks, the doors do not fasten properly, there are holes in the ceiling of the master bedroom, and the paneling over the stove is improperly installed), these defects are both apparent and minor and therefore cannot form the basis of a suit in redhibition. LSA-C.C. arts. 2520 and 2521; Millin v. Dawson, 387 So.2d 1213 (La.App. 1st Cir.1980), Rankin v. Blanchard, 349 So.2d 968 (La.App. 1st Cir.1977).

The remaining defect of which plaintiffs complain is severe warping of the floors of the mobile home. At trial, plaintiffs introduced photographs of the floor area of the mobile home which clearly showed the extent of the defect. Mr. Trigg testified that Camper Village delivered the double wide mobile home to his lot approximately one week before Christmas of 1979 and at that time Camper Village blocked and leveled the mobile home. Approximately two to four months later, he contacted Camper Village and had' them level and block the mobile home a second time. According to Mr. Trigg, it was sometime after the mobile home was blocked and leveled for the second time that the floors began to warp. However, Mr. Trigg testified that neither before nor after this second leveling did he notice any problems with the two sides of the double wide mobile home joining properly.

Mr. Haggler, quality control manager for DeRose Industries, testified that the mobile home was not set up according to the manual supplied by DeRose Industries. However, he also testified that the manual did not contain hard and fast requirements but simply recommendations, and that although it was not common practice to block a mobile home at all four corners and in the middle, as was done here, he could not say that it was “scientifically engineeringly unsound”.

Norman Kristofferson, service man for DeRose Industries, testified that the floor joists were bent and that in order to correct the warping of the mobile home, the flooring and the floor joists would have to be removed and replaced and that new floor covering would have to be installed.

Based on the evidence presented at trial, the trial judge found that “plaintiff established that serious defects existed in the trailer when they purchased it. The existing defects were not apparent and could not have been detected by a reasonable inspection.” Although the civil code states that defects manifesting themselves within three days are presumed to have existed at the time of the sale, the appearance of certain types of defects within a relatively short time after purchase may lead to the reasonable inference that the defects existed at the time of the sale. Bison v. LaHood, 390 So.2d 920 (La.App. 2nd Cir.1980), Riche v. Krestview Mobile Homes, Inc., 375 So.2d 133 (La.App. 3rd Cir.1979). Our examination of the record indicates that there was no manifest error in the factual finding of the trial court that the warping of the floors of the mobile home was due to some defect or vice in the materials of the mobile home which was present at the time of the sale. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Appellant next argues that the trial judge was in error in denying them credit for use of the mobile home by the plaintiffs. It is true that credit for use of a redhibitory sale item may be granted by the court upon rescisión of the sale. Weaver v. Fleetwood Homes of Mississippi, Inc., 327 So.2d 172 (La.App. 3rd Cir.1976). However, appellant presented no evidence at trial as to the fair monthly rental value for a mobile home. Because there was no evidence in the record on which to base an award to appellant for plaintiffs’ use of the mobile home, the trial court was correct in denying appellant’s request for such credit.

The judgment rendered in favor of plaintiffs included an award of $221.50 representing premiums on insurance which the plaintiffs were required to have on the mobile home. Appellant argues that the trial judge erred in granting this award because the plaintiffs did not plead for the recovery of insurance premiums in their petition. Therefore, appellant argues, the testimony which was taken at trial over the objection of both Camper Village and DeRose Industries, regarding the insurance premiums, is an unwarranted expansion of the pleadings and should not be considered.

“The law and jurisprudence are clearly to the effect that harsh rules of procedure are not favored and that pleadings should be liberally construed so as to serve the ends of justice rather than technical niceties.” Buckley v. Nat Harrison & Associates, 245 So.2d 522 (La.App. 3rd Cir.1971). The record indicates that a pretrial conference was held and at that time Camper Village and DeRose Industries were made aware of the fact that plaintiffs would introduce into evidence a copy of an insurance policy issued by Foremost Insurance Company on the mobile home owned by plaintiffs. In light of this, appellant’s assignment of error has no merit.

Lastly, appellant argues that the court erred in awarding Camper Village $2,000.00 in attorney’s fees. According to LSA-C.C. 2545, a manufacturer is presumed to know the defects of the thing he manufactures and is therefore in bad faith and liable for attorney’s fees. Porche v. Robinson Brothers, Inc., 349 So.2d 975 (La.App. 1st Cir.), writ denied, 351 So.2d 171 (La.1977). Therefore, the award by the lower court of $2,000.00 in attorney’s fees to Camper Village is affirmed.

Further, plaintiff-appellees are awarded an additional $500.00 for attorney’s fees for services rendered on appeal. Paul v. Ford Motor Company, 392 So.2d 704 (La.App. 3rd Cir.1980); Riche v. Krestview Mobile Homes, Inc., supra.

The judgment of the trial court is affirmed in all respects. Costs are to be paid by appellant.

AFFIRMED.

      . Mr. Tony Amarosa testified as to the monthly rental value of a mobile home in a deposition taken by Camper Village, Inc. on September 15, 1981. The trial was heard on June 9, 1981, written reasons for judgment were signed on August 27, 1981, and the judgment was signed on September 18, 1981. Therefore, Mr. Amaro-sa’s testimony regarding the monthly rental value of the mobile home will not be considered.


text:
    Robert L. JACKSON v. Robert SPURLOCK.
    No. 82 CA 0069.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 1982.
    Vanue B. Lacour, Baton Rouge, for plaintiff-appellant Robert L. Jackson.
    Guy A. Módica, Baton Rouge, for defendant-appellee Robert Spurlock.
    Before COVINGTON, LEAR and LANIER, JJ.
   LEAR, Judge.

This appeal arises from a suit in which Robert Jackson sued Robert Spurlock for the balance due on an oral contract between them. Specifically, plaintiff sued for $1,100.00 for carpenter work performed on defendant’s house, for $1,000.00 for supervision of the construction of defendant’s house, and for $100.00 for the cost of filing a lien in this lawsuit. After a trial on the merits, the judge rendered his verdict for the defendant. Plaintiff concedes that he failed to prove an agreement as to the $1,000.00 for supervision of the construction and therefore appeals only that portion of the judgment denying him the $1,100.00 balance on the contract for carpenter work.

According to the record, Spurlock, who was in the process of having a house built, hired Jackson to do the trim and cabinet work on the house for $3,865.00. The work was to include the following: hang paneling in the den and kitchen, hang a stairway, install molding and baseboards, cut doors to clear carpet, install locks on doors, install shelves in all lockers and in the two and a half baths and the washroom, and build and install kitchen cabinets.

Defendant alleges that a portion of the work was never completed (baseboards, molding, and shelves in utility room omitted; boxing over bathroom cabinets omitted, and shelves and molding in bathroom omitted; bookcase in daughter’s bedroom omitted; mantel for fireplace omitted; shelves over bar omitted), and that a portion of the work was improperly done (bedroom door improperly cut; front door would not close and could not be latched). Defendant has paid plaintiff $2,765.00 and refuses to pay the remainder until the work is completed.

The codal provision governing this matter is LSA-C.C. 2769:

“If an undertaker fails to do the work he has contracted to do, or if he does not execute it in the manner and at the time he has agreed to do it, he shall be liable in damages for the losses that may ensue from his non-compliance with his contract.”

Under this article, a building contractor who presents evidence that he has substantially performed under the contract in question may recover the full contract price. However, where the owner presents evidence of the cost of completion of the work or correction of defective work, the contract price may be reduced by that amount. Merrydale Glass Works, Incorporated v. Merriam, 349 So.2d 1315 (La.App. 1st Cir.1977), writ denied 350 So.2d 1211, (La.1977); Neel v. O’Quinn, 313 So.2d 286, (La.App. 3rd Cir.1975), writ denied 319 So.2d 440, (La.1975).

In instances in which a building contractor fails to prove that he has substantially performed, he may, in the alternative, prove the value of the services he has rendered and thereby recover based on quantum meruit. Neel v. O’Quinn, supra; Dickson v. Moran, 344 So.2d 102 (La.App. 2nd Cir.1977).

Therefore, the primary issue for determination in this case is whether plaintiff has proved substantial performance under the contract. The factors to be considered in determining whether there has been substantial performance were delineated in Airco Refrigeration Service, Inc. v. Fink, 242 La. 73, 134 So.2d 880 (1961), and include the extent of the defect or nonperformance, the degree to which non-performance has defeated the purpose of the contract, the ease of correction, and the use or benefit to the owner of the work already performed.

Plaintiff testified that all of the trim and cabinet work to be done on defendant’s house had been completed. However, at trial, defendant introduced a blueprint of the house which called for a combination desk/bookshelf unit to be located in one of the bedrooms; the plans also called for shelving in the storage room, the bathrooms, and over the wet bar. Defendant then introduced photographs which showed that the above listed work had not been done.

It is clear from the record that plaintiff has not proven substantial performance, therefore, plaintiff’s recovery based on the contract is barred. In addition, because plaintiff has failed to put on any evidence as to whether the value of the services he has rendered amounts to more than the $2,765.00 which he has already been paid, there can be no recovery based on quantum meruit.

We find the judgment of the trial court denying plaintiff any relief is correct and is therefore affirmed. Costs are to be paid by plaintiff-appellant.

AFFIRMED.


author: SAVOIE, Judge.

text:
    Maxime THOMAS, et al. v. Rev. Gordon G. CRAIG.
    No. 82 CA 0118.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 1982.
    Milton Osborne, Jr., Baton Rouge, for plaintiffs-appellants Máxime Thomas, et al.
    Charles R. Moore, Baton Rouge, for defendant-appellee Rev. Gordon G. Craig.
    Before PONDER, SAVOIE and ELLIS, JJ.
   SAVOIE, Judge.

Máxime Thomas, David Alexander, Charles Brooks, and Melton Dotson, III, individually and in their capacities as members of the Board of Deacons of the Fellowship Missionary Baptist Church of Denham Street, filed suit against Reverend Gordon G. Craig, individually and in his capacity as Pastor of said Church. Plaintiffs claimed that: (1) the provisions of the Articles of Incorporation are in contravention of Louisiana’s nonprofit corporation laws, the Louisiana Constitution, the United States Constitution, and the laws of the United States; and (2) the Pastor’s action declaring all offices of the Church vacated is in contravention of Louisiana’s nonprofit corporation laws. In these respects, plaintiffs prayed: (1) that the Articles of Incorporation be declared null and void; (2) that the Pastor be enjoined from selling, encumbering and disposing of Church property, dissolving the Church, and intervening in any manner with the Board of Deacons’ effort to govern the secular affairs of the Church; (3) for an accounting of the Church monies and funds; and (4) for reasonable attorney’s fees. In accordance therewith, the trial court issued the requested temporary restraining order.

Defendant filed a declinatory exception of lack of subject matter jurisdiction. Subsequently, he filed an exception of lack of capacity and no right of action. A hearing was had on the exception of subject matter jurisdiction. This exception was sustained and the suit dismissed at plaintiffs’ costs. From this ruling, plaintiffs took a devolu-tive appeal.

In response to plaintiffs’ appeal, defendant filed a motion to dismiss for failure to join an indispensable party. Pursuant thereto, this court issued to the parties a rule to show cause why the appeal should or should not be dismissed. This court determined that the motion was, in fact, a peremptory exception of nonjoinder of an indispensable party filed for the first time on appeal. As such, and under the provisions of the Code of Civil Procedure, the court held that the exception should be addressed on the merits of the case on appeal and denied the motion to dismiss. Maxime Thomas, et al v. Rev. Gordon G. Craig, 417 So.2d 500 (La.App. 1st Cir.1982).

As a result of the foregoing, two issues are raised on appeal: (1) the power of the court to hear and determine plaintiffs’ claim, and (2) the peremptory exception of nonjoinder of an indispensable party.

The First Amendment of the United States Constitution and Article I, Section 4 of the Louisiana Constitution prohibit courts from interfering in ecclesiastical matters of religious groups. The Serbian Eastern Orthodox Diocese for the United States of America and Canada, et al. v. Milivojevich, 426 U.S. 696, 96 S.Ct. 2372, 49 L.Ed.2d 151 (1976); Katz v. Singerman, 241 La. 103, 127 So.2d 515 (1961); Wilkerson v. Battiste, 393 So.2d 195 (La.App. 1st Cir.1980). These matters include religious discipline, faith, rules, custom or law and, constitutionally, have been left for the religious bodies to decide. Id. Conversely, courts may decide controversies relating to church disputes over property administra tion and policy wherein the dispute can be resolved without the court becoming involved in controversies concerning religious practice and doctrine. The Serbian Eastern Orthodox Diocese for the United States of America and Canada, supra; Bourgeois v. Landrum, 396 So.2d 1275 (La.1981). No allegation set forth in plaintiffs’ petition requires the court to resolve any underlying controversy over religious doctrine. Therefore, proper judicial function in such case presents no hazard to the free development of religious doctrine or of implicating secular interests in the matters of pure ecclesiastical concern. Bourgeois, supra. Accordingly, the judgment dismissing plaintiffs’ action for lack of subject matter jurisdiction should be vacated and set aside.

C.C.P. Art. 641 defines indispensable parties as those whose interests in the subject matter are so interrelated, and would be so directly affected by the judgment, that a complete and equitable adjudication of the controversy cannot be made unless they are joined in the action. Further, it states that no adjudication of an action can be made unless all indispensable parties are joined therein.

Plaintiffs seek to have the court determine the constitutionality of the Articles of Incorporation of the Fellowship Missionary Baptist Church of Denham Street. Such an adjudication will determine the very existence or non-existence of the Church as a Louisiana nonprofit corporation. Thus, any judgment rendered on this issue would so directly affect the interests of the Church that the Church must be joined therein in order for the court to be able to render a complete and equitable judgment.

C.C.P. Art. 934 provides that when the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. In accordance therewith, this case should be remanded to allow the plaintiffs to amend their petition to join the indispensable party within the time allowed by the trial court.

For the above and foregoing reasons, the judgment of the trial court sustaining the exception of lack of subject matter jurisdiction is reversed and the matter is remanded for action in accordance with the views expressed herein. Assessment of costs is deferred pending a final decision herein.

REVERSED AND REMANDED.


author: PONDER, Judge.

text:
    E.L. BREWER v. STAUFFER CHEMICAL COMPANY, et al.
    No. 82 CA 0192.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 1982.
    Writs Denied Feb. 23, 1983.

      Edward J. Walters, Jr., Baton Rouge, for plaintiff-appellant E.L. Brewer.
    William R. D’Armond, Baton Rouge, for defendant-appellee Stauffer Chemical Co.
    Daniel R. Atkinson, Baton Rouge, for third party defendant-appellant Brooks Erection Co.
    Before PONDER, SAVOIE and ELLIS, JJ.
   PONDER, Judge.

Plaintiff appealed the dismissal of his tort action by directed verdict. The third-party defendant appealed the jury’s award of attorney’s fees to third-party plaintiff.

The issues are:

a. Does the statutory employee exclusion of the Workmen’s Compensation Act prevent recovery by the plaintiff;

b. Is defendant, Stauffer Chemical Company, entitled to indemnification of attorney’s fees from third-party defendant, Brooks Erection Company; and

c. Did the trial court err in denying jury instructions on (1) the care required of those who handle hazardous substances and (2) res ipsa loquitur.

We affirm.

The plaintiff, a pipefitter-welder employed by Brooks Erection Company, was injured while working at Stauffer Chemical Company pursuant to a maintenance contract between Stauffer and Brooks. Plaintiff suffered chemical burns when a valve on which he was working burst open, spraying him with acid.

Plaintiff filed suit against Stauffer for its alleged negligence. Stauffer filed a third-party demand against Brooks seeking indemnification under the terms of their contract for any damages or expenses for which it might be held liable.

At the conclusion of the jury trial, the trial court entered a directed verdict against the plaintiff holding that because he was the statutory employee of Stauffer under La.R.S. 23:1061, Stauffer was im-muñe from tort liability under La.R.S. 23:1032. The court submitted the issue of indemnification to the jury, who found that Stauffer was entitled to $2,401.25 in attorney’s fees. Plaintiff and Brooks appealed.

As a general rule, maintenance and repair work, as opposed to new construction, is considered to be within the scope of a manufacturing plant’s trade, business or occupation. Boudreaux v. Boudreaux, 369 So.2d 1117 (La.App. 1st Cir.1979); Barnes v. Sun Oil Company, 362 So.2d 761 (La.1978).

Stauffer manufactures industrial chemicals. The corrosive nature of the chemicals dictates constant maintenance and repair and frequent replacement. The project on which plaintiff was injured involved the replacement of a chemical reactor, the installation of a small reactor and the replacement of a large amount of pipe. When injured, plaintiff was installing a chain wheel to control a valve leading to the reactors.

David Thompson, a Stauffer project engineer, testified that Stauffer has a relatively large permanent maintenance crew of about sixty hourly employees. It contracted with Brooks to supplement its work force as necessary, but not for any specialized skills. The only difference between the type of work performed by the two work forces was that Stauffer employees tended to work on the urgent day-to-day problems that required a fairly constant work force, whereas Brooks employees worked on potential intermittent problems of a larger scale. The project on which plaintiff was hurt was not customarily performed by Stauffer.

Both Stauffer and Brooks spend a large amount of time replacing corroded and worn-out pipes, valves and pumps. Chain wheels on which plaintiff was working are common at Stauffer and subject to external corrosion.

Plaintiff stated he was doing more than replacing wornout material; he was adding new equipment. While he would not classify his work as maintenance, plaintiff acknowledged that the processing unit had already been there. Another Brooks employee testified that he had only seen Stauffer do repair work and nothing like the project on which they were working when plaintiff was injured.

The directed verdict in Louisiana is permitted under LSA-C.C.P. Article 1810(A). It has its source in the Federal Rules of Civil Procedure and the proper standard in deciding such a motion is set forth in Boeing Company v. Shipman, 411 F.2d 365 (5th Cir.1969) (en banc):

“On motions for directed verdict and for judgment notwithstanding the verdict the Court should consider all of the evidence—not just that evidence which supports the non-mover’s case—but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motions is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury. * * * ”

After a review of the evidence in the light most favorable to the plaintiff, we are of the opinion that the trial court correctly granted defendant’s motion for a directed verdict. The work being performed by the plaintiff and other Brooks employees consisted of maintenance and repair services. The work was a regular and integral part of Stauffer’s business and essential for the efficient operation of the plant. Stauffer employees, in fact, set in place and connected the new reactor on a temporary basis until Brooks was able to move it over to a new foundation and reconnect it with new piping permanently. The addition of the smaller reactor was simply an improvement of existing facilities. The contention that it was new construction is not supported by the facts. The work in which plaintiff was engaged was part of the trade, business or occupation of Stauffer.

Brooks asserts that the trial court should have awarded a directed verdict in its favor on the third-party demand. The third-party demand is based on the indemnification agreement between Stauffer and Brooks which is found in Section 7.1 of their contract:

“Contractor agrees to indemnify, defend and save Company (including officers, directors and employees of Company) harmless from and against any and all loss, damage, expense (including reasonable attorney’s fees) claims, suits, and liabilities, based upon damages to, or destruction of, any property or injury (including death) to any person (including employees of Contractor) arising out of or attributable to the performance or nonperformance by Contractor hereunder (including, but not limited to, Contractor’s employees, sub-contractors or agents) even if caused in part by negligence of Company, except for such injuries or damages which are caused solely by the negligence of Company.”

The undisputed evidence shows that the valves, pipes and reactors installed by Brooks were all new and there was no evidence of any chemical flow through this portion of the unit prior to plaintiff’s accident. Thompson testified that after two years he still did not know how the pressurized acid became trapped in the valve.

We are of the opinion that the facts and inferences do not point so strongly and overwhelmingly to the conclusion that the accident was caused solely by the negligence of Stauffer that reasonable men could not reach a contrary result. The trial court did not err in submitting the issue of attorney’s fees to the jury.

Brooks requested an instruction on the extraordinary degree of care required of persons involved with hazardous substances. The court denied the request determining that a negligence standard had been contractually established by the parties and was therefore controlling.

Brooks also complains that the court refused to give a jury instruction regarding the doctrine of res ipsa loquitur.

The doctrine is properly applicable when the accident is of a kind that does not ordinarily occur in the absence of negligence; the injury was caused by an agency or instrumentality within the control of the defendant; and evidence as to the cause of the accident is more readily available to the defendant. Ray v. Ameri-Care Hospital, 400 So.2d 1127 (La.App. 1st Cir.1981), writ denied, 404 So.2d 277 (La.1981).

The trial judge stated that plaintiff was in a position to know as much as, if not more than, Stauffer about the accident, and therefore the doctrine did not apply. He also stated that there were no questions, argument or evidence directed to this issue at trial and that to give the jury such an instruction would only confuse them.

We find no manifest error in either of these decisions by the trial court.

For the above and foregoing reasons, the judgment of the trial court is affirmed. Costs shall be shared equally by the plaintiff and the third-party defendant.

AFFIRMED.

      . La.R.S. 23:1061 and La.R.S. 23:1032 provide:
      § 1061: Where any person (in this section referred to as principal) undertakes to execute any work, which is a part of his trade, business, or occupation or which he had contracted to perform, and contracts with any person (in this section referred to as contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any employee employed in the execution of the work or to his dependent, any compensation under this Chapter which he would have been liable to pay if the employee had been immediately employed by him; and where compensation is claimed from, or proceedings are taken against, the principal, then, in the application of this Chapter reference to the principal shall be substituted for reference to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the employee under the employer by whom he is immediately employed.
      Where the principal is liable to pay compensation under this Section, he shall be entitled to indemnity from any person who independently of this Section would have been liable to pay compensation to the employee or his dependent, and shall have a cause of action therefor.

      . § 1032: The rights and remedies herein granted to an employee or his dependent on account of an injury, or compensable sickness or disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights and remedies of such employee, his personal representatives, dependents, or relations, against his employer, or any principal or any officer, director, stockholder, partner or employee of such employer or principal, for said injury, or compensable sickness or disease. For purposes of this Section, the word “principal” shall be defined as any person who undertakes to execute any work which is a part of his trade, business or occupation in which he was engaged at the time of the injury, or which he had contracted to perform and contracts with any person for the execution thereof.
      Nothing in this Chapter shall affect the liability of the employer, or any officer, director, stockholder, partner or employee of such employer or principal to a fine or penalty under any other statute or the liability, civil or criminal, resulting from an intentional act.
      The immunity from civil liability provided by this Section shall not extend to: 1) any officer, director, stockholder, partner or employee of such employer or principal who is not engaged at the time of the injury in the normal course and scope of his employment; and 2) to the liability of any partner in a partnership which has been formed for the purpose of evading any of the provisions of this Section.

      . LSA-C.C.P. art. 1810(A)
      A party who moves for a directed verdict at the close of the evidence offered by an opponent may offer evidence in the event that the motion is not granted, without having reserved the right so to do and to the same extent as if the motion had not been made. A motion for a directed verdict which is not granted is not a waiver of trial by jury even though all parties to the action have moved for directed verdicts. A motion for a directed verdict shall state the specific grounds therefor. The order of the court granting a motion for a directed verdict is effective without any assent of the jury.


author: ELLIS, Judge:

text:
    POINTE COUPEE LUMBER COMPANY v. AETNA CASUALTY & SURETY COMPANY.
    No. 82-CA-0200.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 1982.
    John K. Hill, Jr., Lafayette, for plaintiff.
    Bernard E. Boudreaux, Jr., Bauer, Dar-nall, McNulty & Boudreaux, Franklin, for defendant.
    Russel J. Cremaldi, Morgan City, for Aet-na Cas. & Sur. Co.
    Before PONDER, SAVOIE and ELLIS, JJ.
   ELLIS, Judge:

This is an appeal by plaintiff Pointe Cou-pee Lumber Company, Inc. from a judgment rejecting its demands against Aetna Casualty & Surety Company for amounts allegedly due under a Blanket Crime Policy written by defendant for plaintiff. Under that policy, defendant agreed to pay plaintiff for “Loss of Money and Securities by the actual destruction, disappearance or wrongful abstraction thereof outside the Premises while being conveyed by a Messenger or any armored motor vehicle company, or while within the living quarters in the home of any Messenger.”

The facts of the case were stipulated to be as follows:

“This was the Saturday, June 5th deposit, and as I understand the circumstances around the loss of this deposit, on June 7th about 1:00 P.M., Joe Campbell, the Assistant Manager took the deposit bag with him to his home because the manager had the night deposit key. When Joe Campbell got to his home he took the bag into his house with him, changed clothes, got back in his company vehicle, returned to the store and picked up a co-worker to go to a convenience store down the street to get a cold drink. When he went into the convenience store he hid the deposit bag under the truck seat behind a hard hat and forgot about having the deposit bag in his truck until Tuesday, June 10th, when the bookkeeper asked him for the bag so she could make another deposit and at that time the deposit bag was not in the pickup. The pickup had been used on Monday for making material deliveries.”
* * * * * *
“The pick up truck and the hard hat are used by all — it is available for errands and contacts. Because some of the jobs require the use of a hard hat, one is kept in the truck at all times. The day before, that is the Monday, all the employees used the truck at one time or the other.”

The trial judge found that, because Mr. Campbell had deviated from his function as messenger, and since it was likely that the money was taken on Monday, while the truck was being used by other employees, the deposit was no longer being “conveyed by a Messenger” within the terms of the policy. In this court, plaintiffs aver that the court erred in so concluding.

Sansone v. American Insurance Company, 245 La. 674, 160 So.2d 575 (1964) was a case in which the messenger was entrusted with $2,500.00 in cash to be deposited in a bank on the following morning. On his way home, he went to a social club, where he joined in a dice game. During the game, he removed his coat, which contained the money, and had it hung on a rack in an adjoining room. About 20 or 30 minutes later, the messenger found that the money had disappeared. Suit was brought for recovery under a policy containing a coverage provision identical to the one in this case. In denying recovery, the court relied on a definition of the term “conveyed by a messenger” which appeared in Monteleone v. American Employers’ Insurance Co., 239 La. 773, 120 So.2d 70 (1960), which stated that the phrase “denotes conveyance by a person on an errand who keeps the property in his personal custody at all times.”

In this case, the trial judge found that Campbell had deviated from his function as a messenger for two full days, and that the deposit was therefore not being “conveyed by a messenger” when it disappeared or was stolen. Plaintiff argues that the trial judge erred in reaching this conclusion, citing two cases in support of its argument. In the first of these, Allen & Allen, Inc. v. State Farm Fire & Casualty Co., 295 So.2d 894 (La.App. 2nd Cir.1974), writ denied 299 So.2d 794 (La.1974), the property was stolen from a safe in a van provided for the transportation of the messenger, and the policy contained a specific provision for the use of such a vehicle in the transportation of the property. . The court awarded recovery based on that special clause in the policy. No such provision appears in the policy in this case.

In the second case, Cameron State Bank v. American Emp. Ins. Co., 401 So.2d 1090 (La.App. 3rd Cir.1981), writ denied 409 So.2d 674 (La.1981), the messenger routinely took the pouch from a branch office to the main branch, stopping overnight at his home. He left the pouch in the van overnight, and it was stolen. The policy contained a provision identical to that in this case. The court held that the property was being “conveyed by a messenger”. That case is, of course, clearly distinguishable from this one on its facts.

In this case, the messenger totally forgot about the property for more than two days. During that time, the truck was used by several other persons on missions unrelated to the deposit of the funds in a bank. We agree with the trial judge that Mr. Campbell had turned aside from his mission, and the funds were not being “conveyed by a messenger” when they were stolen.

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

AFFIRMED.


text:
    Roby Grace Allen, wife of and Charles O. MULKEY v. C.E. CATE, et al.
    No. 82 CA 0202.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 1982.
    Writ Denied Feb. 23,1983.
    Thomas S. Derveloy, Jr., Covington, for plaintiff-appellee.
    Duncan S. Kemp, III, Hammond, for defendant-appellant.
    Before PONDER, SAVOIE and ELLIS, JJ.
   PONDER, Judge.

Defendants appealed from a judgment declaring that plaintiffs are the owners of ten acres of land by acquisitive prescription.

The issues are: 1) commencement of possession as owner; 2) acknowledgment of ownership by others; 3) proof of thirty-year acquisitive prescription; and 4) the interruption of possession.

All the property discussed hereafter is located in the northwest quarter of the northwest quarter of Section 1, T 6 S, R 7 E, in Tangipahoa Parish. This tract will hereafter be called the Mulkey tract. The disputed tract is a ten-acre tract, located in the northwest quarter of the Mulkey tract. Plaintiffs’ ancestors in title, Charles and Roby Grace Mulkey, moved to a house in the southeast quarter of the Mulkey tract in 1940. They fenced the entire forty acres and in 1944 built a house on the southeast quarter of the Mulkey tract.

Mr. and Mrs. Mulkey purchased this southeast quarter from the Charles E. Cate Estate in 1946. In 1955, they purchased the northeast quarter and the southwest quarter from the same estate, thus acquiring record title to a total of thirty acres. There is no evidence that they ever obtained title to the disputed northwest quarter.

Mrs. Mulkey and her children, plaintiffs, testified that they maintained the fence around the forty-acre tract. They began dairy farming in 1945, and subsequently cleared portions of the disputed tract so it could be used as pasture. They cut hardwood, using part for fence posts, cross-fenced portions of the property, had pulpwood cut and picked mayhaws on the ten-acre portion. In 1973, plaintiff, Dale Mul-key, moved a trailer on the disputed property, built a fence around it, had the utilities connected and lived there for approximately three years.

Defendant, Stanley Dameron, testified that Dameron Investment Corporation purchased the disputed tract in 1974. Defendants’ only acts of possession were the payment of property taxes, a visit to the property in 1977, after a question of ownership arose and when pictures of the tract were taken, and a second visit just prior to the trial.

The trial court held that plaintiffs had proven thirty-year acquisitive prescription by a preponderance of the evidence and their possession had not been interrupted.

Defendants’ argument that plaintiffs were precarious possessors of the tract because of the purchase of adjacent properties from defendants’ ancestors in title is without merit. The mere fact of physical possession by a non-owner is sufficient notice to the record owner and to the public that the non-owner intends to possess the property for himself, unless possession began in some capacity other than as owner. La.Civil Code Art. 3488; Jones v. Skannal, 368 So.2d 774 (La.App. 2nd Cir.1979), writ denied, 371 So.2d 620 (La.1979). The testimony of plaintiffs and their ancestors in title indicated that they possessed the disputed tract as owners. We cannot say the trial judge erred.

Defendants next argue that if the plaintiffs commenced possession as owners, the purchase of adjoining tracts in 1946 and 1955 amounted to acknowledgments sufficient to interrupt the running of prescription. La.Civil Code Art. 3520.

To interrupt prescription, an acknowledgment must be clear, specific, positive and unequivocal; it must be made with the intention to interrupt prescription. Wise v. Watkins, 222 La. 493, 62 So.2d 653 (1952); Harris v. Galloway, 348 So.2d 1263 (La.App. 2nd Cir.1977). The purchase of two adjoining tracts by plaintiffs’ ancestors in title was not the express, certain and definite act which would show the clear purpose and intent required. We find no error.

Plaintiffs went into possession of the disputed tract in 1940, when they fenced the entire forty-acre tract. Their acts of corporeal possession included building and maintaining fences, grazing cattle, cutting timber and setting up a mobile home. No evidence to show interruption of their possession was introduced.

Defendants assert that the failure of Charles Mulkey to testify should be construed adversely to plaintiffs. The mental condition of Charles Mulkey was evidently discussed prior to trial. Furthermore, it is likely that his testimony would have been cumulative. We find no error.

For these reasons, the judgment of the trial court is affirmed with costs assessed to the defendants.

AFFIRMED.

      . Dale A. Mulkey, Charles Otis Mulkey, Joanne Mulkey Mulnor and Bessie Mulkey Fussell acquired the disputed tract from the original parties plaintiff, Charles Mulkey and Robie Grace Mulkey on December 11, 1979, and were substituted as plaintiffs.

      . Dameron Investment Corporation intervened in the proceeding alleging that it acquired the property from four of the originally named defendants on November 12,1974. Plaintiffs subsequently. amended their petition naming as defendants, Stanley Dameron, Edward P. Dam-eron, his wife, Eleanor Ellis Dameron, Charles E.C. Dameron and his wife, Betty Morris Dam-eron, who acquired Dameron Investment Corporation’s purported interest in the property on February 5, 1979.

      . La.Civil Code Art. 3488:
      As to the fact itself of possession, a person is presumed to have possessed as master and owner, unless it appears that the possession began in the name of and for another.

      . La.Civil Code Art. 3520:
      Prescription ceases likewise to run whenever the debtor, or possessor, makes acknowledgement of the right of the person whose title they prescribed.


text:
    STEPHENS PHOTO, INC. v. SOUTHERN PORTRAITS, INC., et al.
    No. 82-CA-0203.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 1982.
    John I. Feduccia, Hammond, for plaintiff-appellee.
    Douglas T. Curet, Hammond, for defendant-appellant.
    Before PONDER, SAVOIE and ELLIS, JJ.
   ELLIS, Judge:

Plaintiff, Stephens Photo, Inc., obtained a judgment in North Carolina for $17,387.62 against defendants Southern Portraits, Inc., David H. Walker and Mrs. David H. Walker. This is a suit to domesticate that judgment in Louisiana. After peremptory exceptions, alleging the lack of jurisdiction of the North Carolina court, were overruled, defendants filed an answer which alleged jurisdictional defects in the North Carolina proceeding; and a reconventional demand, alleging that the work done by plaintiff for defendants was improperly performed.

To the answer, plaintiff filed a motion to strike, alleging that the suit to domesticate the judgment is not an ordinary, summary or executory proceeding and is therefore not “amenable” to answers or reconventional demands. Plaintiff also filed an exception of no cause of action to the reconven-tional demand, on the ground that it could not be raised as a defense under Article 2541 of the Code of Civil Procedure.

After a hearing, the judgment was rendered striking the answer and dismissing the reconventional demand. From that judgment, defendants have appealed. In the motion for appeal, defendants recognize that the judgment is interlocutory, but allege that they will be irreparably harmed thereby.

Defendants are clearly entitled to appeal, since the effect of the trial court’s rulings is to prevent them from offering any defense. Under Article 2541, the action to domesticate a foreign judgment is an ordinary proceeding, and therefore subject to the same rules for pleading and trial as are other ordinary proceedings.

Defendants’ answer raises a question of extrinsic fraud, by alleging that they were advised by plaintiff that all proceedings in North Carolina would be stayed pending adjustments in the account. This type of fraud is a defense to an action to domesticate a foreign judgment, and defendants are entitled to a trial on that issue. Lee v. Carroll, 146 So.2d 242 (La.App. 3rd Cir.1962). If, on the trial of the case, defendants are able to prove that the judgment was obtained through extrinsic fraud, then they should be permitted to offer the other defenses pleaded. Richardson v. Helis, 192 La. 856, 189 So. 454 (1939).

With respect to the reconventional demand, we find no legal bar to the filing thereof. The main demand is an ordinary proceeding, and a defendant in such a proceeding is entitled to reconvene, provided the matters therein alleged were not litigated in the North Carolina proceeding. Articles 1061, 2541, Code of Civil Procedure; Glass v. Wheeliss, 24 La.Ann. 397 (1872). If the North Carolina judgment was obtained through extrinsic fraud, then the reconven-tional demand is allowable under any circumstances.

The judgment appealed from is therefore reversed and the case remanded to the trial court for trial on the merits. All costs of this appeal shall be paid by plaintiff. All other costs shall await final disposition hereof on its merits.

REVERSED AND REMANDED.


text:
    FINANCIAL CORPORATION v. Dolores LUSK.
    No. 82-CA-0210.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 1982.

      Ralph Brewer, Baton Rouge, for plaintiff-appellant Financial Corp.
    C. Frank Holthaus, Baton Rouge, for defendant-appellee Dolores Lusk.
    Before PONDER, SAVOIE and ELLIS, JJ.
   ELLIS, Judge:

This is an executory proceeding in which plaintiff Financial Corporation is seeking to foreclose on a mortgage executed by Dolores Lusk, on the ground that the payments on the note secured thereby were in arrears more than one month. Defendant then filed a petition to enjoin the sale, alleging that all payments had been made or tendered timely. After a hearing, judgment was signed granting a preliminary injunction, and plaintiff has appealed.

On December 14,1967, Dolores Lusk purchased from The Wolff Corporation a parcel of ground in East Baton Rouge Parish, and gave in payment for same a promissory note for $9,950.00, bearing interest at eight per cent per annum and payable in monthly installments of $75.00 each. The note does not specify a place of payment, but the sale, with vendor’s lien and mortgage securing the said note provides for payment at American Bank & Trust Company, Baton Rouge, Louisiana.

The record reveals that on May 15, 1978, defendant was advised to send all payments to plaintiff at 110 Veterans Boulevard in Metairie, Louisiana. Thereafter, all payments were made by defendant to that address. In December, 1980, defendant received a handwritten unsigned note, on the letterhead of Financial Corp., P.O. Box 4326, New Orleans, LA., 70178, asking her to refinance her home with another company. She took the letter to her attorney, who wrote plaintiff at the address in the letter as follows:

“I have received a letter purporting to be from Financial Corporation purporting to be dated December of 1980. The letter further purports to ask Ms. Dolores Lusk to refinance her home. No explanation whatsoever is offered for this.”
“Please contact me and explain to me why you wish Ms. Lusk to refinance her property. In any event and in the mean time, Ms. Lusk will continue to make her payments pursuant to her original agreement.”

This letter was returned to plaintiff’s counsel, with another unsigned, handwritten note at the bottom, saying that defendant would be better off dealing with a local company. On January 14,1981, defendant’s counsel replied as follows:

“I have received your postscript returned on my letter of January 8, 1981. However, the memorandum is inadequate. “Initially, let me point out that I continue to have no idea with whom I am dealing. Not only was your original letter to Ms. Lusk not signed, you refused to sign your postscript to me. Thus I have no assurance, indeed I have no evidence at all, that I am dealing with anyone in anyway associated with Financial Corporation. Additionally, I am referred to no agreement or document existing between Ms. Lusk and yourself which allows you to tell her to transfer her financing on the simple basis you feel she would be better off, a decision certainly relegated to herself.
“I would be more than happy to discuss with you the whys and wherefores of your request if you desire. However, I must first know with whom I am dealing, and I must secondly have a reliable means of continued communication with you. At present, I have a mysterious looking return address a portion of which seems to be continually blocked out.”

There was no further correspondence between the parties, and defendant continued to make her payments to the Veterans Highway address specified in the May 15, 1978, letter. On advice of counsel, all payments were sent by certified mail, and were routinely delivered to plaintiff. However, the payment for September, 1981, and all subsequent payments were returned, marked undeliverable as addressed. Defendant, on advice of counsel, continued to send the payments to the Veterans Highway address because she had no other notice of where to send the payments. Her counsel did not advise her to send the payments to P.O. Box 4326 because of the anonymous nature of the communications received from that address.

This suit was filed on December 23,1981, and a three-day notice to pay was served on defendant. She testified that she immediately took her payments to the office of plaintiff’s counsel. These payments were returned by plaintiff’s counsel to defendant’s counsel.

The trial judge found that all payments had been properly tendered by defendant to plaintiff, since she had never been properly notified to send the payments to any address other than that on Veterans Highway.

In this court, plaintiff argues that it was unreasonable for defendant to continue to forward the payments to the Veterans Highway address, when both she and her attorney were aware of the new mailing address, and that there had therefore been no proper tender of the payment.

R.S. 10:3-604(3) provides, in part:

“Where the maker or acceptor of an instrument payable otherwise than on demand is able and ready to pay at every place of payment specified in the instrument when it is due, it is equivalent to tender.”

No place of payment is specified in the note, and American Bank and Trust Company is specified in the mortgage. The place of payment specified by plaintiff is the address contained in the letter of May 15, 1978.

Article 2157 of the Civil Code provides: “The payment must be made in the place specified in the agreement. If the place be not thus specified, the payment, in case of a certain and determinate substance, must be made in the place where was, at the time of the agreement, the thing which is the object of it.”

Article 2168 of the Civil Code states, in part:

“To make a real tender valid, it is necessary:
“That the tender be made in the place agreed upon for the payment, or that, if there be no special agreement as to the place of payment, it be made either to the creditor himself, or at his dwelling, or at the house chosen for the execution of the agreement.”

It is clear from the record that the only place of payment agreed to by the parties is that specified in the letter of May 15,1978. The fact that a different address appeared on the letterhead of the unsigned note of December, 1980, is not sufficient to constitute a new agreement as to place of payment. Since all of defendant’s payments were sent to the address specified in the May 15,1978, letter, we agree with the trial judge that there was a proper tender thereof. Under the circumstances, plaintiff is not entitled to bring an executory proceeding because the defendant is not legally in default.

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

AFFIRMED.


text:
    Kathleen BRADY, Individually and on Behalf of her minor child, Darryl BRADY v. RIVELLA DEVELOPERS, INC. and MFA Insurance Company.
    No. 82 CA 0211.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 1982.

      Michael W. McKay, Roy, Kiesel, Patterson & McKay, Baton Rouge, for defendant, appellant.
    Maurice P. Mathieu, Rhodes & Mathieu, Houma, for plaintiff, appellee.
    Before PONDER, SAVOIE and ELLIS, JJ.
   SAVOIE, Judge.

Defendants, Rivella Developers, Inc. and its insurer, MFA Insurance Company, appeal the trial court’s finding of liability on their part in this tort action. Plaintiff, Kathleen Brady, individually and on behalf of her minor child, Darryl Brady, timely answered. Therein she requested an increase in the award of damages for Darryl’s injuries. Further, she sought a reversal of that portion of the judgment denying her recovery for medical expenses.

On July 11, 1978, Darryl Brady (age 3) fell out of a second-story apartment window at the Casa Rivella Apartments. Darryl’s mother, plaintiff herein, is the lessee of the apartment. Rivella Developers, Inc. is the owner and operator of said apartments.

At the time of the accident, the window was open because the central air conditioning unit which normally cooled the apartment had been inoperative for several days. Darryl was speaking to other children on the ground below when, apparently, he pressed against the screen. The screen fasteners gave way and the screen and Darryl fell.

The framed opening of the window through which Darryl fell was such as might be constructed to receive French doors. There was a ledge within the window opening, only inches off the floor, in which a child could sit, stand or kneel. The screen was framed by light-weight aluminum and had fasteners on the top and bottom to keep it in place. There were no guard rails of any kind.

The trial court found that the defendant knew that young children lived in the apartment. Further, it determined the defendants were aware that the air conditioner was broken, necessitating that the window be opened for ventilation. As such, the lower court concluded this situation created an unreasonable risk of harm to the children. Further, it was found to be reasonably foreseeable that the children would enter the window opening. The trial court concluded that such opening was not reasonably safe for its intended uses: ventilation and view. On this basis, the trial court held the defendants liable for their negligence which was a proximate cause of the accident. In contrast thereto, the lower court concluded defendants were not liable under the theory of strict liability.

Additionally, the trial court determined that Mrs. Brady was aware of the dangerous condition but chose to ignore it. She claimed it was someone else’s responsibility. Thus, the lower court concluded that Mrs. Brady’s inaction fell below the standard of conduct required for the protection of her children and constituted contributory negligence. Therefore, her recovery was barred.

Since Mrs. Brady’s negligence was not attributable to her son, judgment was rendered on the child’s behalf in the sum of $7,500.

Defendants' Assignment of Error No. 1

Defendants contend the trial court erred in finding them negligent. Louisiana tort law is founded in L.S.A.-C.C. art. 2315, which provides:

“Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.”

While the trial court found liability in terms of proximate cause and foreseeability, recent decisions of our Supreme Court and the courts of appeal have used the duty/risk analysis to determine the liability of a defendant. Therefore, we shall address liability under a duty/risk analysis.

It is well settled in Louisiana that for a plaintiff to recover in negligence, he must prove that: (1) the act complained of was a cause-in-fact of the accident; (2) the defendant had a duty, either statutory or non-statutory, to protect this plaintiff against the cause of harm complained of; (3) the defendant breached his duty to protect this plaintiff; and (4) the plaintiff was harmed by the breach of the duty owed. Thornhill v. Louisiana Department of Transportation and Development, No. 14,823, 424 So.2d 331 (La.App. 1st Cir.1982), Mathews v. Elder International, 400 So.2d 251 (La.App. 4th Cir.1981), writ denied, 406 So.2d 609 (La.1981).

In making a determination of liability under negligence, the first inquiry is whether the defendants’ acts were a cause-in-fact of the accident. A review thereof shows that defendants failed to repair the air conditioning in the apartment, necessitating the opening of the window. Defendants knew that small children lived in the apartment and that the window had to be opened for ventilation purposes. Further, defendants knew that the window was constructed so as to be easily accessible to these children and that the screen was only lightly attached to it. Given defendants’ knowledge and inaction in the present circumstances, we conclude defendants’ omissions were a cause-in-fact of the accident.

The second inquiry is whether the defendants had a duty to protect this plaintiff from this type of harm. Defendants’ duty is not to create or maintain an unreasonable risk of harm to others. Smolinski v. Taulli, 276 So.2d 286 (La.1973). The lower court found that the window created an unreasonable risk of harm to the children. It was also determined that it was reasonably foreseeable that the children would enter the window opening. As the record supports these conclusions, the trial court correctly determined that the risk to which Darryl was exposed falls within the duty owed by the defendants. Thus, the second element of the analysis has been met.

The third inquiry in this analysis requires a determination of whether the defendants breached their duty. The trial court found as a matter of fact that the defendants breached their duty by maintaining a condition which presented an unreasonable risk of harm to the children. We find no manifest error with the finding of fact. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978), rehearing denied, January 26, 1979. This breach caused the injuries sustained by Darryl, thus satisfying the fourth inquiry as to damages. All of the essential elements of the duty/risk analysis having been met, we agree with the trial court holding defendants liable for Darryl’s injuries.

Defendants’ Assignment of Error No. 2

Defendants argue that the plaintiff’s negligence, as found by the trial court, is an independent intervening cause, without which the accident could not have happened. As such, defendants claim their actions were not a proximate cause of Darryl’s injuries.

“For wrongful conduct to be actionable negligence, it must be found to have been a cause in fact of the resulting harm. It must be a necessary antecedent of the harm, but it need not be the sole cause contributing to the harm.” (Emphasis added). Kalmn, Inc. v. Empiregas Corporation, 406 So.2d 276 (La.App. 3rd Cir.1981); See also Dixie Drive It Yourself Systems v. American Beverage Company, 242 La. 471, 137 So.2d 298 (1962).

Earlier in this opinion, this court addressed the question of defendants’ negligence and determined that it was a cause-in-fact of Darryl’s injuries. As such, it is actionable negligence and a finding that another cause contributed to the harm will not relieve defendants of their liability thereunder. Kalmn, supra. Therefore, this argument is without merit.

Plaintiff’s Assignments of Error 1 and 2

Plaintiff contends the trial court erred in failing to hold the defendants strictly liable under L.S.A.-C.C. art. 2695. Assuming, arguendo, that defendants are liable under this article, plaintiff’s recovery would still be barred. Contributory negligence is a bar to recovery under a negligence theory of liability and under the liability of La.C.C. art. 2695 where it is shown that the lessee knew of the defect, the premises could be safely used with the use of reasonable care, and the lessee failed to exercise that standard of care. Renfro v. South Coast Corporation, 374 So.2d 122 (La.App. 1st Cir.1979). In the present ease, the evidence establishes that Mrs. Brady knew of the dangerous situation and chose to ignore it. She failed to install window guards on the window. Further, she did not attempt in any way to block Darryl’s access to the window by placing chairs or other objects of furniture in front of it. Had she exercised such precautions, the premises may have been safely occupied. This inaction on the part of Mrs. Brady was deemed by the lower court to constitute contributory negligence. We find no manifest error in this conclusion. Therefore, the trial court was correct in denying Mrs. Brady recovery for medical expenses.

Plaintiffs Assignment of Error No. 3

Lastly, plaintiff contends the trial court erred in failing to conclude that Darryl was permanently and psychologically scarred from the accident and in failing to award damages therefor. The trial court found that the medical evidence failed to establish this contention. The record supports the trial court’s conclusion.

Dr. William Fisher, Jr., neurosurgeon, noted that Darryl’s neurologic examination was normal, there were no cranial nerve deficits, and the optic discs were normal. There was no motor or sensory loss. An A. C. T. scan of the brain was performed which proved normal as were the skull films. Also, an electroencephalogram was performed which showed normal results.

Dr. Robert Barnes, psychiatrist, saw Darryl in November of 1980. He concluded from his interview that it was not clear whether Darryl was suffering from a mild behavioral disturbance or whether he was suffering from some form of minimal brain damage. Thus, plaintiff’s third argument is unsubstantiated.

Defendants cite Yates v. Tessier, 5 La.App. 214, (2nd Cir.1926) which they allege to be factually identical to the case at hand. Such is not the case. In Yates, supra, the window was an ordinary window and not the French-door type as in the instant case. The Yates knew the window was hinged at the top and was unfastened at the bottom. It was inaccessible by the child without the assistance of the parents. The parents placed a bed even with the window and then placed the child on the bed. Given the facts in Yates, supra, it cannot be said that the landlord should have reasonably foreseen the accident.

In light of the foregoing, the trial court’s judgment should be affirmed in all respects. Appellants are to pay all costs.

AFFIRMED.


text:
    Charles ARCENEAUX, Sr., Individually and as the Legal Tutor of his Minor Children, Tammy Lois Arceneaux, Charles Arceneaux, Jr. and Dale James Arceneaux v. TEXACO, INC., et al.
    No. 82 CA 0212.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 1982.
    Writ Denied Feb. 11, 1983.

      Harold B. Carter, Jr., Montgomery, Barnett, Brown & Read, New Orleans, for plaintiffs-appellants.
    John J. Weigel and John G. Gomila, Jr., Jones, Walker, Waechter, Poitevent, Carr-ere & Denegre, New Orleans, for Texaco, defendant-appellee.
    Joseph S. Palermo, Jr. and Jerry L. Sa-porito, Bernard, Cassisa, Babst & Saporito, Metairie, for General Motors, defendant-ap-pellee.
    Before PONDER, SAVOIE and ELLIS, JJ.
   PONDER, Judge.

Plaintiff appealed the dismissal of his suit on a peremptory exception of res judicata.

The issues on appeal are: 1) the final adjudication of issues raised by the plaintiff for the purpose of res judicata, and 2) whether plaintiff is entitled to a jury trial of those issues.

We affirm.

Plaintiff and his family were injured in a fire at a Texaco service station. The fire occurred while a station attendant was filling plaintiffs truck with gas. Plaintiff, individually, and as tutor of his minor children, filed two suits against Texaco, Inc. and General Motors Corporation, one in the United States District Court for the Eastern District of Louisiana, and the other in the Sixteenth Judicial District Court for the Parish of St. Mary. A verdict was rendered in favor of Texaco, Inc. in the Federal District Court. The United States Fifth Circuit Court of Appeals affirmed and denied plaintiff’s application for a rehearing. Plaintiff’s application for a writ of certiora-ri to the United States Supreme Court was denied.

Plaintiff then resumed activity in his suit in the state court system. Texaco, Inc. filed a peremptory exception of res judica-ta, alleging that the issues involved had been conclusively adjudicated in the federal system. Plaintiff appealed when the trial court sustained the peremptory exception.

A presumption of correctness in a prior judgment precludes relitigation of the object of the judgment when there exists 1) identity of the parties, 2) identity of the “cause,” and 3) identity of the “thing demanded.” La. Civil Code Art. 2286. Dornak v. Lafayette General Hospital, 399 So.2d 168 (La.1981).

Plaintiff argues that res judicata is inapplicable since the issue of whether advertising warranty, agency by estoppel and apparent authority exist in Louisiana was not adjudicated by the Federal Courts. When the Federal District Court excluded evidence to support these theories, the evidence was submitted under proffer. The Fifth Circuit Court of Appeals considered the evidence submitted on proffer but still found insufficient evidence in the record to support these theories. After reviewing the Federal District Court’s written reasons for excluding the evidence and the opinion by the Court of Appeals, we hold that the issue was adjudicated sufficiently to support the later plea of res judicata.

Plaintiff argues that the Fifth Circuit’s decision was a “trial by proffer,” and that the sustaining of the plea of res judica-ta impinges on his right of access to the courts. Article 1, Section 22 of our Constitution of 1974 does not require that every suit filed be disposed of by trial on the merits. To hold otherwise would have the effect of removing practically all exceptions from our civil procedure. See Miles v. Illinois Central Gulf Railroad Co., 389 So.2d 96 (La.App. 4th Cir.1980), writ denied, 394 So.2d 612 (La.1980). Plaintiff’s argument is without merit.

Plaintiff further argues that because the Federal District Court’s exclusion of the evidence was manifestly erroneous, the necessity for him to make a proffer was eliminated, citing Tauzier v. Tauzier, 405 So.2d 1309 (La.App. 4th Cir.1981). A claim that a prior adjudication was in error is immaterial to the application of res judicata in a following proceeding so long as the requirements of res judicata are met. Valien v. Prather, 348 So.2d 229 (La.App. 3rd Cir.1977), writ denied, 351 So.2d 515 (La.1977). Both the Federal District Court and the Fifth Circuit Court of Appeals have considered plaintiff’s contentions and ruled against him. Res judicata does not require either jury trial or favorable verdict.

For these reasons, the judgment of the trial court is affirmed with costs assessed to the plaintiff.

AFFIRMED.

      . The suit filed in state court against General Motors Corporation was dismissed on an exception of res judicata. No appeal was taken. That suit also named as defendants the service station owner and attendant.

      . Arceneaux v. Texaco, Inc., 623 F.2d 924 (5th Cir.1980), cert. denied, 450 U.S. 928, 101 S.Ct. 1385, 67 L.Ed.2d 359 (1981).

      . La. Civil Code Article 2286:
      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.

      . La. Constitution Article 1, § 22.
      All courts shall be open, and every person shall have an adequate remedy by due process of law and justice, administered without denial, partiality, or unreasonable delay, for injury to him in his person, property, reputation, or other rights.


text:
    William JONES v. Lee T. WESLEY.
    No. 82 CA 0217.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 1982.

      David L. Dawson, Jr., Baton Rouge, for plaintiff-appellant William Jones.
    Freddie Pitcher, Jr., Baton Rouge, for defendant-appellee Lee T. Wesley.
    Before PONDER, SAVOIE and ELLIS, JJ.
   PONDER, Judge.

Plaintiff appealed from the judgment dismissing his suit for defamation and malicious prosecution.

The sole issue is qualified privilege.

We affirm.

Plaintiff was employed by Community Advancement, Inc. (CAI). On February 1, 1977, defendant, as the executive director of CAI, notified plaintiff by letter that he was suspended from his employment, and gave as reasons that plaintiff had been “padding” his local mileage.

Defendant advised the District Attorney’s office of the matter, and that office conducted its own investigation. Plaintiff and several other employees of CAI were indicted by the East Baton Rouge Parish Grand Jury. After plaintiff was tried for misdemeanor theft and found not guilty, he filed this suit.

Defendant pleaded qualified privilege as an affirmative defense. The trial court carefully considered this issue in its written reasons for judgment, and we adopt the court’s reasons:

“A qualified privilege exists if a defamatory communication is made (1) in good faith, (2) on a matter in which the person communicating has an interest or with regard to which he has a duty, or (3) to a person having a corresponding interest or duty.
“It is well established that if the alleged defamatory remark is accusation of the commission of a crime, the remark is defamatory per se, and falsity and malice are presumed. However, a finding of good faith as an element of the qualified privilege would effectively rebut the presumption of malice.
“As executive director of Community Advancement, Inc., defendant had a duty to report circumstances involving a possible crime to the District Attorney’s office, and that office had a corresponding duty to receive that information. The public has an interest in possible criminal activity being brought to the attention of the proper authorities, and remarks made in good faith setting forth well-founded charges are clearly privileged. See Toomer v. Breaux, 146 So.2d 723 ([La.App.] 3rd Cir.1961) and Crump v. Crump, 393 So.2d 337 ([La.App.] 1st Cir.1980).
“In addition to notifying the District Attorney’s office, defendant notified plaintiff of his suspension and the reasons therefor by letter .... As plaintiff’s supervisor, defendant had a duty to document plaintiff’s suspension and the reasons therefor. No publication to anyone without a corresponding interest or duty has been shown. If good faith is shown, the placement of this letter in plaintiff’s file is conditionally privileged also. Alford v. Georgia-Pacific, 331 So.2d 558 ([La.App.] 1st Cir.1976), writ den. 334 So.2d 427 (La.1976). As the court does not find any publication other than that noted above, the only issue is defendant’s good faith.
“The test for whether a communication is made in good faith was set forth in Cormier v. Blake, 198 So.2d 139, 144 ([La.App.] 3d Cir.1967) as follows:
“ ‘... the person.making the statement must have reasonable grounds for believing that it is true and he must honestly believe that it is a correct statement.’
“Defendant testified that there were two factors which prompted his inquiry into the mileage records involved. First, it was agency policy to annually spot check mileage claims, and second, a report from the United States Department of Labor indicated suspicious activity in the Veteran’s Outreach Program, where plaintiff and others were employed. An internal investigation of mileage vouchers revealed discrepancies in mileage claims of plaintiff and others. After speaking with Haymer King, a regional official with the United States Community Services Administration in Dallas, Texas, defendant suspended plaintiff and others, and contacted the District Attorney’s office with the information he had.
“Plaintiff admitted there were discrepancies in his records. These discrepancies arose, according to his testimony, on days when he claimed sick leave for the whole day, but worked part of the day and claimed mileage without correcting his sick leave record.
“The court finds that defendant was in good faith in making the statements sued upon. There was ample reason for the initial investigation and, by plaintiff’s own testimony, the records reveal discrepancies indicating possible falsification. The court is convinced that defendant had reasonable grounds and honestly believed that his statements were true.”

An action for malicious prosecution requires the concurrence of:

1) The commencement or continuance of an original criminal or civil judicial proceeding.
2) Its legal causation by the present defendant against plaintiff who was defendant in the original proceeding.
3) Its bona fide termination in favor of the present plaintiff.
4) The absence of probable cause for such proceeding.
5) The presence of malice therein.
6) Damage conforming to legal standards resulting to plaintiff.

Hill v. Smith, 399 So.2d 708 (La.App. 1st Cir.1981).

While the above written reasons address themselves to defamation, the finding of reasonable grounds and honest belief in the truth is fatal to plaintiffs claim for malicious prosecution because of failure to meet requirements four and five.

For these reasons, the judgment of the trial court is affirmed at plaintiffs costs.

AFFIRMED.


text:
    Amir H. MOAZZAMI v. BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY, et al.
    No. 82-CA-0218.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 1982.
    Writ Denied Feb. 23, 1983.
    Robert E. Kleinpeter, Baton Rouge, for plaintiff-appellant Amir H. Moazzami.
    George K. Anding, Jr., Baton Rouge, for defendants-appellees Board of Sup’rs of Louisiana State University, et al.
    Before PONDER, SAVOIE and ELLIS, JJ.
   ELLIS, Judge:

This is a suit for damages for personal injuries brought by Amir H. Moazzami against the Board of Supervisors of Louisiana State University and its insurer. From a judgment dismissing his suit, plaintiff has appealed.

The accident happened when a large metal fire door closed on plaintiff’s left index finger, amputating it at the distal interpha-langeal joint. According to plaintiff, the door was open as he passed through it. He testified that: “I closed the door with my left hand, and just the door slammed on my finger so hard, so fast, like was a jiffy or something like that.”

The evidence reveals that the door in question was a metal fire door, separating a stairwell from the students’ rooms. Facing the door from the stairwell, the knob is on the right side of the door, which opens by swinging into the stairwell to the left. At the top of the door is a hydraulic closure device, designed to keep the door closed. When properly operating, the closure device will also prevent the door from being slammed. When the closure device is not connected, the door is free standing and must be pulled closed.

Plaintiff and his witnesses testified that the door had been standing open, prior to the accident, which happened as above detailed. On the day following the accident, plaintiff’s friends examined the door, and found the closure device to be disconnected. Shortly before the trial of the case, the device was found to be in place and operating properly. Maintenance records of the University show no complaints of trouble and no repairs performed on the door from a time prior to the accident, until the date of the trial.

The trial judge found that plaintiff had slammed the door on his hand, and was therefore contributorily negligent. In this court, plaintiff alleges that the court erred in finding him contributorily negligent; that the fact that the closure device was disconnected created an unreasonable risk of harm to those using the door; and that plaintiff should be able to recover under either Article 2695 or Article 2317 of the Civil Code.

In Shipp v. City of Alexandria, 395 So.2d 727 (La.1981), the court said:

“We have described the legal foundation for imposing liability under art. 2317 in the following terms:
‘When harm results from the conduct or defect of a person or thing which creates an unreasonable risk of harm to others, a person legally responsible under these code articles for the supervision, care, or guardianship of the person or thing may be held liable for the damage thus caused, despite the fact that no personal negligent act or inattention on the former’s part is proved. The liability arises from his legal relationship to the person or thing whose conduct or defect creates an unreasonable risk of injuries to others.’
“Jones v. City of Baton Rouge, 388 So.2d 737, 739 (La.1978), citing Loescher v. Parr, supra [324 So.2d 441], at 446 [La.1976]. An injured party seeking damages under art. 2317 need not prove negligence, that is, that any particular act or omission on the part of the defendant caused his injuries. He must only prove that the thing which caused the damage was in the care or custody of the defendant, that the thing had a vice or defect, that is, that it occasioned an unreasonable risk of injury to another, and that his injury was caused by the defect. Once these elements are proven, the custodian can escape liability only by showing that the harm was caused by the fault of the victim, by the fault of a third person, or by an irresistible force. Jones v. City of Baton Rouge, supra; Loescher v. Parr, supra.

We agree with the district judge that a door does not create an unreasonable risk of harm to those who use it. We do not believe that the fact that a device which is designed to keep the door closed, may be disconnected, changes the character of a door so as to render it hazardous. It seems clear that plaintiff carelessly slammed the door on his hand, and that his fault is the sole cause of the accident.

The same is true of plaintiff’s claim that defendants are liable under Article 2695 of the Civil Code, which provides:

“The lessor guarantees the lessee against all the vices and defects of the thing, which may prevent its being used even in case it should appear he knew nothing of the existence of such vices and defects, at the time the lease was made, and even if they have arisen since, provided they do not arise from the fault of the lessee; and if any loss should result to the lessee from the vices and defects, the lessor shall be bound to indemnify him for the same.”

We do not believe that the door, disconnected from its closure device, is a defect in the premises. We further find that plaintiff’s own failure to exercise due care is the cause in fact of the accident.

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

AFFIRMED.


text:
    COMMERCIAL UNION INSURANCE COMPANY v. Armand V. MELIKYAN, et al.
    No. 82 CA 0221.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 1982.
    David S. Bell, Baton Rouge, for plaintiff-appellee Commercial Union Ins. Co.
    Allen R. Boudreaux, Craig Raster, Baton Rouge, for third party defendant-appellee Don R. Estelle.
    Lawrence A. Durant, Baton Rouge, for third party defendant-appellee John A. Melton.
    J.J. McKernan, Amy E. Counce, Stephen K. Peters, Baton Rouge, for defendant-plaintiff in reconvention-appellant Arman V. Melikyan.
    Before PONDER, SAVOIE and ELLIS, JJ.
   PONDER, Judge.

Defendant appealed the dismissal of his reeonventional demand for damages for defamation of character by the sustaining of plaintiff’s exception of no cause of action.

The issue on appeal is whether defendant’s reeonventional demand adequately alleges the “publication” element of defamation.

We affirm and remand.

Plaintiff, Commercial Union Insurance Company, sued Armand Melikyan and other indemnitors for losses and expenses incurred as surety on certain performance bonds covering construction projects. The bonds were issued pursuant to a general application and indemnity agreement executed by defendants.

Armand Melikyan, (hereinafter defendant) reconvened for damages sustained due to defamatory language contained in a memorandum sent by one of plaintiffs employees to another employee. His recon-ventional demand alleged that the Baton Rouge Claims Manager of Commercial Union Insurance Company sent a memorandum to the home office Claims Manager which stated that defendant was “not trustworthy.” The defendant denied that he was “not trustworthy” and stated that he had suffered damage due to the publication of the false statement.

The trial court sustained plaintiffs exception of no cause of action and dismissed defendant’s reconventional demand.

Defendant’s argument relates to the “publication” element of a defamation action, which does not require that the defamatory statement be published to the general public, but is satisfied by communication to a person other than the one defamed. Lewis v. Baton Rouge Oil & Chemical Workers Union, 387 So.2d 1311 (La.App. 1st Cir.1980), writ denied, 392 So.2d 693 (La.1980); Toomer v. Breaux, 146 So.2d 723 (La.App. 3rd Cir.1962). Defendant contends that the communication of the defamatory statement by memorandum, from the Baton Rouge Claims Manager to the home office Claims Manager, sufficiently met this requirement.

Commercial Union argues that the acts of the Claims Managers within the scope and limits of their employment, were acts of the corporation itself and no communication to a third person occurred. Commercial Union’s argument is supported by cases from other jurisdictions which have held that there can be no publication of an alleged defamatory intracorporate communication, i.e., communication between and among officers and agents of the same corporation in reference to the corporation’s business. See Jones v. Golden Spike Corporation, 623 P.2d 970 (Nev.1981), Ellis v. Jewish Hospital of St. Louis, 581 S.W.2d 850, (Mo.App.1979); Jackson v. Douglas County Electric Membership Corporation, 150 Ga.App. 523, 258 S.E.2d 152 (Ga.App.1979); Burney v. Southern Railway Company, 276 Ala. 637, 165 So.2d 726 (1964); Anderson v. Southern Ry. Co., 224 So.C. 65, 77 S.E.2d 350 (1953); Magnolia Petroleum Co. v. Davidson, 194 Okl. 115, 148 P.2d 468 (1944). We find that their argument has merit.

An intra-corporate communication, among officers or agents of the same corporation, and in relation to their duties for the corporation, is merely a communication of the corporation itself. It cannot be construed as being a communication to a third party.

This position is supported by Cangelosi v. Schwegmann Brothers Giant Super Markets, 390 So.2d 196 (La.1980), in which the Supreme Court found that statements made by and in the presence of other supervisory personnel, to an employee concerning an altered check, did not constitute publication, since the supervisory personnel were essential to the investigation. We interpret this case to mean that statements between employees, made within the course and scope of their employment, are not statements communicated or publicized to third persons.

The reconventional demand alleges that the memorandum was sent from one claims manager to another. It does not allege that the memorandum was not within the course and scope of the claims managers’ employment. We find that defendant’s reconventional demand fails to state the publication element of defamation.

It is possible that the grounds of the peremptory exception may be removed by amendment; therefore, we remand to allow the defendant fifteen days to amend his reconventional demand, if he can do so. La.Code of Civil Procedure Art. 934.

For the above reasons, the trial court judgment sustaining the peremptory exception of no cause of action is affirmed. We remand, however, to give defendant, Armand Melikyan, fifteen days from the date this decision becomes final to amend his petition to correct the deficiency giving rise to the exception. Costs of this appeal are to be paid by the defendant. All other costs are to await final resolution of the case.

AFFIRMED AND REMANDED.

      . Some authorities contend that such an approach confuses publication with privilege. See W.L. Prosser, The Law of Torts, § 113 (4th ed., 1971). Willis v. Demopolis Nursing Home, Inc., 336 So.2d 1117 (Ala.1976). Benson v. Hall, 339 So.2d 570 (Miss.1976). However, we choose to follow the approach we find indicated in Cangelosi v. Schwegmann Brothers Giant Super Markets, 390 So.2d 196 (La.1980).

      . La.Code of Civil Procedure Article 934
      When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection cannot be so removed, or if plaintiff fails to comply with the order to amend, the action shall be dismissed.