author: SWIFT, Judge.

text:
    Elijah GREEN, Plaintiff-Appellant, v. PROVENCAL TIE MILL et al., Defendants-Appellees.
    No. 7898.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 17, 1980.

      Fuhrer & Flournoy, George A. Flournoy, Alexandria, for plaintiff-appellant.
    Gahagan & Gahagan, Russell E. Gahagan, Natchitoches, for defendants-appellees.
    Before CULPEPPER, DOMENGEAUX and SWIFT, JJ.
   SWIFT, Judge.

The plaintiff, Elijah Green, brought this workmen’s compensation suit against the defendants, Provencal Tie and Lumber Company, Inc. (Provencal) and Terry Boswell, seeking to recover benefits for total and permanent disability. The trial court rendered judgment in favor of the defendants and dismissed the suit. From this judgment the plaintiff perfected this appeal.

The plaintiff contends the trial court erred in: (1) failing to award the expenses he incurred by the defendants’ failure to timely answer the plaintiff’s interrogatories; (2) in not finding the plaintiff to be totally disabled from the date of his injury through the first week in February, 1980; (3) in incorrectly computing the weekly compensation rate; (4) in failing to award medical and travel expenses; and (5) in not awarding penalties and attorney’s fees for the arbitrary nonpayment of medical and disability benefits.

The facts are that on August 24,1979, the plaintiff suffered injuries to the little finger of his left hand while engaged in the course and scope of his employment as a laborer stacking cross ties at Provencal’s saw mill in Natchitoches Parish. He left work later that day and was treated by Dr. Robert R. Sills, a local general practitioner, for a laceration and fracture of his finger.

Mr. Boswell, an incorporator and apparently the managing officer of Provencal, inquired at the doctor’s office and was told by his receptionist-secretary that plaintiff had been released and was able to go back to work about September 18, 1979. Green returned to the mill and was employed for only two days. He testified that he was unable to perform his work because of pain in his finger.

Dr. Sills was not called to testify at the trial. However, there is a report in evidence written to the defendants’ attorney dated October 8, 1979, which reflects that the doctor saw Green on August 24 and 28 and September 12,1979. On August 28 the sutures were removed, a splint was applied and an appointment was made for plaintiff to see Dr. Banks, an orthopedic surgeon in Alexandria. The report further states that on September 12 Dr. Sills suggested to the plaintiff that he return to work on a trial basis on September 18, however, Dr. Banks should be contacted for further information on the patient.

On October 16, 1979, the plaintiff was examined by Dr. John T. Weiss and several times thereafter he was seen by Dr. Cedric Lowery. Both of these physicians were associated with Dr. T. E. Banks at the Alexandria Orthopedic Clinic.

Dr. Lowery testified by deposition that Dr. Weiss found the fractured finger had not healed on October 16 and turned Green over to him for follow up because Dr. Lowery did most of the hand work. The latter did not think plaintiff should have been working at that time. Green did not return to the doctor’s office after December 18, but Dr. Lowery’s opinion was that he could not return to his job as a tie stacker until the early part of February, 1980.

No other medical or lay (except the plaintiff’s) testimony on the question of disability appears in the record. However, the trial judge stated that he viewed plaintiff’s injured left little finger at the trial and did “not discern any disability which would prohibit or in any way effect (sic) plaintiff’s ability to get a job on the open market as a common laborer.”

The defendant paid the plaintiff compensation at the rate of $60.00 for three weeks after the injury, but terminated payments when Dr. Sills’ office told him Green had been released and was able to return to work.

At the time this suit was filed on October 24, 1979, the corporate employer was incorrectly named in the petition. In an effort to ascertain the proper party defendant, the plaintiff propounded interrogatories to the named defendants on November 23. Because the interrogatories were not answered on December 28, the plaintiff filed a motion to compel answers and to recover the expenses thereof. The rule to show cause why the defendants should not be ordered to answer the interrogatories, for some reason not disclosed in the record, was signed by the trial court on January 2,1980. However, the answers were filed on December 31,1979. The proper corporate defendant was named in a supplemental and amending petition filed on January 3, 1980.

The motion to compel discovery was passed and tried with the merits on January 22, 1980. Thereafter, the motion was denied and judgment was rendered rejecting the plaintiff’s demands. The trial court held that the plaintiff had failed to prove he was disabled. The judge further found the plaintiff’s trips to Dr. Lowery were not for treatment, but that he was sent there by his attorney for the purpose of building up a workmen’s compensation case. Consequently, the employer was not required to provide travel expenses.

The plaintiff first contends on this appeal that the trial court erred in not awarding costs and attorney’s fees for the motion to compel discovery pursuant to LSA-C.C.P. Art. 1469(4), citing Chiasson v. Widman, 376 So.2d 350 (La.App. 3 Cir. 1979). The situation presented in Chiasson was very similar to what happened in this case. However, we recognized there that such an award is within the sound discretion of the trial judge. Also see Duplechien v. McNabb, 260 So.2d 789 (La.App. 4 Cir. 1972). The defendant in the instant suit answered the interrogatories before the rule to show cause was ordered and we cannot say that there was a clear abuse of discretion under the circumstances.

We are convinced from our review of the record, however, that otherwise the trial court was clearly wrong.

The uncontradicted medical evidence is to the effect that the injuries which plaintiff sustained to his finger caused him temporary total disability until the first part of February, 1980. Dr. Sills’ report says he “suggested that Mr. Green return to work on a trial basis on September 18, 1979”, but it contains no expression of opinion the he could actually do such work. Instead, the defendants’ attorney was advised to contact Dr. Banks, to whom the plaintiff was referred, for further information on the subject. This is the only thing in the record from Dr. Sills himself in regard to the plaintiff’s disability. And Dr. Banks’s associate testified that Green was not able to return to his employment until February. The only evidence to the contrary was the testimony of defendant Boswell that he was told by Dr. Sills’ office that Green had been released to return to work sometime after the accident. This is not in our opinion sufficient support for the trial judge’s finding that the plaintiff failed to prove he was disabled and we conclude he was manifestly in error in this respect. Plaintiff is entitled to judgment for weekly compensation benefits to temporary total disability from August 24, 1979, to February 7, 1980.

The plaintiff next contends that the three $60.00 weekly compensation payments he received were not computed correctly. The defendant Boswell determined this weekly rate by multiplying the average of plaintiff’s weekly wages for a three-month period by 66%%. This, of course, is incorrect. The plaintiff was paid on an hourly basis of three dollars per hour. LSA-R.S. 23:1021(7)(a) provides the formula for determining the wages of an employee paid on an hourly basis as follows:

“..'. ‘wages’ means average weekly wage at the time of the accident. The average weekly wage shall be determined as follows: (a) If the employee is paid on an hourly basis, his hourly wage rate multiplied by the average actual hours worked in the four full weeks preceding the date of the injury or forty hours, whichever is greater,” (Emphasis added)

Therefore, if the average number of hours worked in the previous four weeks is less than forty hours, the average weekly wage should be computed by multiplying the plaintiff’s hourly wage rate by forty hours. Arthur v. McConnell, 286 So.2d 499 (La.App. 2 Cir. 1973); Skinner v. Boise Southern Co., 364 So.2d 223 (La.App. 3 Cir. 1978). In the instant case the plaintiff’s hours for the prior four weeks averaged less than 40. Consequently, the weekly compensation benefits to which he is entitled are 66%% of $3.00 times 40 hours ($120.00) or $80.00 per week from August 24, 1979, to February 7, 1980, subject to a credit of $180.00 previously paid by the employer.

The plaintiff next contends the trial court erred in not awarding medical and travel expenses for the appointments with Dr. Banks’s associates in Alexandria. We agree that the trial court was clearly wrong in concluding that these medical expenses were not incurred for treatment. Our decree will include an award of $220.50 for the medical expenses and $72.96 for travel.

Lastly, the plaintiff contends the trial judge erred in not awarding penalties and attorney’s fees under LSA-R.S. 23:1201.2. We agree.

Without seeking advice from anyone, Mr. Boswell used the wrong formula to compute plaintiff’s compensation rate. As a result the weekly payments were $20.00 less than they should have been. Despite demands for payments of the maximum weekly compensation, no attempt was made to correct the error by paying the deficiency even after defendants employed an attorney. We are unable to find any substantial basis for the failure to pay weekly compensation at the correct rate.

Furthermore, we are convinced the defendants were arbitrary in failing to inquire with Dr. Banks’ associates as to the plaintiff’s condition and resuming payment of compensation benefits after receiving Dr. Sills’ letter of October 8. Had they done so, they certainly would have learned from the orthopedists that he was still disabled at that time. As stated heretofore, Dr. Sills, did not say in that report the plaintiff was able to resume work. He suggested that defendants’ attorney get further information on the subject from Dr. Banks.

In Chavis v. Maryland Casualty Company, 307 So.2d 663 (La.App. 3 Cir. 1975), writ denied, 310 So.2d 854 (La.1975), this court said:

“Under neither report was the defendant-insurer able to assume plaintiff could return to work. No such indication was given by either report. A conclusion that
plaintiff was no longer disabled and could return to work was therefore completely unwarranted.

As held by the trial judge:

‘It was at least incumbent upon defendant to make further inquiry as to plaintiff’s true condition since it had no definite expression from the physician as to termination’ of disability. This it failed to do and chose, instead, at its risk, to rely upon its own erroneous interpretation of the reports.’ ” [Authorities Omitted]

See also Norris v. Southern Cas. Ins. Co., 342 So.2d 874 (La.App. 3 Cir. 1977); Williams v. Liberty Mutual Insurance Company, 327 So.2d 462 (La.App. 3 Cir. 1976); Wiley v. Southern Cas. Ins. Co., 380 So.2d 214 (La.App. 3 Cir. 1980).

Assuming but without deciding that the defendants were justified in terminating compensation on the basis of the information Mr. Boswell got from Dr. Sills’ secretary to the effect that plaintiff was able to resume work on September 18, when their attorney received Dr. Sills’ letter of October 8 they could not blindly rely on the prior information and avoid penalties for arbitrary non-payment of compensation benefits that were obviously due. Walker v. Gaines P. Wilson & Son, Inc., 340 So.2d 985 (La.1976).

All things considered, we are convinced that the plaintiff herein is entitled to recover the statutory penalties and an attorney’s fee.

In view of the brevity of the trial we believe that an award of $2,000.00 for the attorney’s fee is adequate for the services rendered both in the district court and on this appeal.

Although plaintiff has joined both Provencal Tie and Lumber Company, Inc. and Terry Boswell as defendants in this suit, the proof establishes that the former was actually Green’s employer. Consequently, the judgment w;as correct in dismissing the suit against Mr. Boswell.

For the foregoing reasons, the judgment of the district court is affirmed insofar as it denied plaintiff’s motion to compel discovery and dismissed the suit as to defendant, Terry Boswell. Otherwise, it is reversed. Accordingly, the decree is recast as follows and rendered:

It is ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of the plaintiff, Elijah Green, and against the defendant, Provencal Tie and Lumber Company, Inc., for weekly compensation benefits for temporary total disability at the rate of $80.00 per week from August 24, 1979, to February 7, 1980, with legal interest and 12% penalty thereon, subject to a credit of $180.00 previously paid by the defendant, plus $293.46 for medical and travel expenses, with 12% thereof as penalty, and $2,000.00 for his attorney’s fee. All costs of the suit, including the appeal, are assessed to the said defendant.

It is further ORDERED, ADJUDGED AND DECREED that the plaintiff’s motion to compel discovery and for expenses is denied and this suit is dismissed as to defendant, Terry Boswell.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.

      . Four round trips of 114 miles from plaintiff’s home to the Alexandria doctor’s office at 16 cents per mile.


source: Caselaw Access Project

author: DOUCET, Judge.

license: Public Domain

text:
    Ralph BOWN, Jr., Plaintiff-Appellee, v. Douglas J. HOLLAND et al, Defendants-Appellants.
    No. 7900.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 17, 1980.

      Steven Broussard, Lake Charles, for defendants-appellants.
    William H. Mouton, Lafayette, for plaintiff-appellee.
    Before FORET, LABORDE, and DOU-CET, JJ.
   DOUCET, Judge.

This is an action for a declaratory judgment. Defendants, Douglas J. Holland, Clara Belle Holland Roberts, Curtis J. Holland and Shirley Ann Holland Reber, appeal a judgment declaring plaintiff, Ralph Bown, Jr., to be the owner of a one-half interest in a mineral royalty, which they allegedly inherited from their father.

The facts are not disputed. On February 14, 1966, defendants’ father, Vernon Holland, sold a 40-acre tract of land in Jefferson Davis Parish to Elmer Hayes, reserving certain mineral rights. In the fall of 1978, plaintiff, an independent land man, approached defendants and informed them that they might have a claim to a mineral royalty as a result of the inclusion of part of the land in a producing unit. Defendants agreed to hire plaintiff to secure the recognition of their claim and payment for past due royalties attributable to their interest.

Plaintiff set out the terms of the agreement in a letter to defendants, dated December 1, 1978. It provided in pertinent part:

“I have informed you of a certain mineral royalty interest you may have claims to in a certain 40 acre tract of land (being SE/NE of Sec. 24, 11S-6W, Jefferson Davis Parish, Louisiana) which your father, Vernon Holland, sold to Elmer Hayes on February 14, 1966.
“You have agreed to and hereby engage me exclusively to try to assert such royalty interest claim in your behalf, and I have agreed to make a bonafide best effort attempt to do so at my cost and expense, provided that at my discretion I may discontinue such efforts, and so notify you, and in such event neither of us shall thereafter have any further obligations hereunder.
“In consideration for my services and expense, you agree to give me one-half of whatever royalty interest I am able to recover, confirm or establish for you, including one-half of any money recovered relating to past production attributable to such interest.
“By this letter you also give me full legal authority to represent you and make demands in your behalf in this matter, and you agree to promptly execute any formal documents that might become necessary to accomplish the purposes of this agreement.
“If the foregoing also states your understanding of our agreement, please sign and return the original copy of this letter for my file. This letter agreement may be executed in counterparts each of which shall be binding on the parties executing the same regardless of whether all of the claimants join hereunder.”

The letter was signed on December 7, 1978 by all of the defendants except Shirley Ann Holland Reber, who signed it on January 5, 1979.

After presenting the agreement to defendants for their signatures, plaintiff searched the public records of Jefferson Davis Parish and prepared a written demand for payment in which he set out defendants’ chain of title to the royalty. On December 15,1978, he submitted the demand to Nato-mas North America, Inc., the operator of a unit containing part of the 40 acre tract formerly owned by Vernon Holland. Subsequently, defendants employed an attorney to assert their claim and notified plaintiff of their intent to discharge him. Notice was given by means of phone calls placed on or about January 9, 1979, which were confirmed by letters dated January 16, 1979.

As a result of defendants’ efforts to dismiss him, plaintiff brought this suit, seeking a declaration that the contract is enforceable and that he is entitled to the full measure of compensation that it provides for his services. The trial court, apparently relying on the general provisions of the Civil Code governing conventional obligations, concluded that plaintiff’s partial performance precluded defendants’ withdrawal from the contract. Judgment was rendered in plaintiff’s favor, declaring that the contract is valid and enforceable, and that plaintiff is entitled to a one-half interest in the royalty reserved by defendants’ father in the sale of the property, and to one-half of the proceeds, if any, which may be recovered as a result of that royalty.

Defendants appealed, arguing that the trial judge erred in finding that they did not have the right to withdraw from the contract. They contend that the contract established a mandate, which was revocable at their will. Alternatively, they argue that the contract was null and void, because it contained a potestative condition, which gave plaintiff the unilateral right to discontinue his efforts at his discretion.

The first issue raised by defendants’ arguments concerns the characterization of the contract between the parties. Although the trial judge did not expressly deal with this issue in his written reasons for judgment, it appears that he viewed the agreement as a simple contract for the procuration of personal services. Defendants argue, however that it was a mandate, which LSA-C.C. Art. 2985 defines as “an act by which one person gives power to another to transact for him and in his name, one or several affairs.”

We agree that the contract between the parties falls squarely within the purview of that definition. Defendants did not simply engage plaintiff to perform personal services; they vested him with a representative capacity. Gurley v. City of New Orleans, 41 La.Ann. 75, 5 So. 659 (1889). We must therefore look to the rules peculiar to mandates in resolving the issue of defendants’ right to withdraw from the agreement, rather than the general provisions governing conventional obligations that the trial court apparently relied on.

The general rule is that mandates are revocable at the will of the principal. LSA-C.C. Art. 3028, Francis v. Bartlett, 121 So.2d 18 (La.App. 2nd Cir. 1960); Neiman-Marcus Company v. Viser, 140 So.2d 762 (La.App. 2nd Cir. 1962); Alphonse Brenner Company, Inc. v. Dickerson, 283 So.2d 849 (La.App. 2nd Cir. 1973). There is an exception to this rule, however. When the mandatory acquires an interest in the property that is the subject of the mandate, such that he may deal with it in his own name, the mandate is irrevocable. LSA-C.C. Art. 3027; Marchand v. Gulf Refining Company of Louisiana, 187 La. 1002, 175 So. 647 (1937); Eduardo Fernandez Y Compania v. Longino & Collins, 199 La. 343, 6 So.2d 137 (1942); Robinson v. Hunt, 211 La. 1019, 31 So.2d 197 (1946); Succession of Zatarain, 138 So.2d 163 (La.App. 1st Cir. 1962).

Plaintiff argues that he acquired such an ownership interest in this case, citing Robinson v. Hunt, supra. We find no merit in that contention, however. The mandate in Robinson was described by the court as follows:

“This document, as we have previously pointed out, constituted and appointed Caplow agent and attorney in fact with full right, power, and authority, among other things, to negotiate for and settle all claims in and to the real property, oil, gas, and other mineral rights in the lands known as the Pinhook Plantation, and with reference to this property to execute and sign deeds, etc. It then conveyed to said agent, Caplow, with full warranty of title an undivided 20 per cent in all the oil, gas, and other minerals in the same property concerning which he was given the power and authority to act for them and in their behalf as agent. The consideration was named as services rendered by Caplow and other good and valuable consideration, receipt and sufficiency of which were acknowledged by each principal. (Emphasis added.)

31 So.2d at page 211.

The language of the agreement in this case is significantly different. It does not convey title to an interest that plaintiff can deal with in his own name. It simply obligates defendants to effect such a transfer in the event that a royalty interest is “recovered, confirmed or established.” Plaintiff’s right to collect his fee was not made absolute; it was contingent on his ability to accomplish the purpose of the agreement.

Under these circumstances, we find that the trial court erred in concluding that plaintiff is entitled to the full measure of compensation provided for in the agreement. Defendants had the right to revoke the mandate under LSA-C.C. Art. 3028, and when they did so, the effect was the same as when a client revokes a mandate given to an attorney at law. It ended the contract and rendered its compensation provision unenforceable. Plaintiff is entitled to compensation for the services that he rendered prior to the revocation. However, it must be sought on a quantum meruit basis. Simon v. Metoyer, 383 So.2d 1321 (La.App. 3rd Cir. 1980).

For these reasons the judgment of the trial court is reversed and set aside, and judgment is rendered in defendants’ favor, dismissing plaintiff’s suit. All costs of the trial court and this court are assessed against the plaintiff.

REVERSED AND RENDERED.


text:
    Ashton NOEL, Plaintiff-Appellee, v. Terry DEVILLIER, Defendant-Appellant.
    No. 7911.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 17, 1980.
    Writ Refused Feb. 13, 1981.

      Kenneth Pitre, Eunice, for defendant-appellant.
    Clanton & Johnson, John W. Johnson, Eunice, for plaintiff-appellee.
    Before CULPEPPER, DOMENGEAUX and SWIFT, JJ.
   SWIFT, Judge.

Ashton Noel has sued Terry Devillier for $5927.00 as the balance allegedly due for materials and labor furnished by plaintiff in the construction of defendant’s house. Devillier filed a reconventional demand alleging that the house was not built according to the contract and plans, but instead contained certain defects which were caused with the knowledge and through the fault of Noel.

The trial court rendered judgment for the plaintiff for the amount he sought, but also awarded the defendant $450.00 to correct several minor defects or deficiencies in the home. From this judgment, the defendant has perfected a suspensive appeal. The plaintiff has answered the appeal asking that the award to the defendant be reversed.

The facts are that Mr. Devillier contracted with Mr. Noel, a carpenter, for the latter to construct a house for plaintiff similar to the plans used to build Noel’s own home. Devillier agreed to pay for the cost of the materials used by Noel plus his labor costs. The plaintiff was free to choose whomever he wished to do the electrical and plumbing work and pay them direct, but Noel did recommend and contact the contractor that was hired to do same.

While Noel contended that he was not to be the supervisor of any persons aiding in building the house except the carpenters, he did assist the plumber in measuring the lines to rough in the plumbing before the slab was poured. Prior to Noel’s laying the bottom plates for the walls he realized that, although the slab was as it should have been, the plumbing for the bathrooms was in the wrong place. Noel informed Devillier that the error had been made, but just what else was said by them at this time is disputed.

Devillier testified Noel told him that in order to correct the mistake the whole slab would have to be torn up and the plumbing redone. If not, however, the only variations from the plans would be a narrowing of 11 inches in the master bedroom and the bathroom wall would be moved slightly. Devillier then agreed to leave the slab as it was. He denied he was told by Noel that it would cost only $400.00 to correct the plumbing error and comply with the plan.

Noel testified he told Devillier before the walls were built that the master bedroom would be 11 to 13 inches smaller than shown on the plans, but the matter could be corrected by breaking the concrete and redoing the plumbing at a cost of about $400.00. He also said that most of the other variances from the plans were discussed and agreed by Devillier.

Be that as it may, the slab remained as it was and the walls were erected to accommodate the misplaced plumbing. The result was that the width of the master bedroom was about 13 inches less and the master bathroom and dressing area were 12 inches narrower than the parties originally agreed. However, the guest bathroom seems to be approximately two feet wider than shown on the plans.

Following the trial the trial judge rendered written reasons for judgment stating that he found Noel was not just the carpenter, but was the general contractor on this house, because he undertook supervision of the entire construction. However, he further found that the diminution in sizes of the bedroom and bathroom occurred with the knowledge and consent of the defendant. He believed that Mr. Noel adequately informed Mr. Devillier of the plumbing error and the latter made the decision to keep the slab as it was. Consequently, the plaintiff was not responsible for such deficiencies. Some of the claims asserted by Devil-lier in the reconventional demand were denied for lack of sufficient proof, but his $450.00 award, consisting of $200.00 to put in a window in master bathroom, $50.00 for a toilet in the spare bathroom and $200.00 to correct a lVi inch sag in the carport roof, covered items for which the plaintiff was responsible that had not been waived by the defendant.

On this appeal the defendant asserts the trial judge correctly found Noel was a general contractor, but he erred in concluding that the compression of the master bedroom, bathroom and dressing area was done with Devillier’s knowledge and consent. He contends that from his conversation with Noel he believed the entire slab would have to be torn up. Since he thought this would cost him a lot of money, he declined. Had he known that it would have cost only $400.00 to correct the error, he would have been willing to pay this extra amount. The plaintiff’s position is that the judge erred in concluding he was a general contractor responsible for the errors of others than the carpenters. And, further, all of the deficiencies in the home were agreed to by the defendant.

We cannot say that Mr. Noel was in fact the general contractor on this job under the circumstances presented. However, we do agree with the trial judge that it was established by a preponderance of evidence that as a part of the agreement with Mr. Devillier he assumed the duty of seeing that the house was constructed in accordance with the plans he furnished. Therefore, the plaintiff was responsible to fully inform the defendant of the deviation from the plans in the location of the bathroom plumbing and take reasonable action towards remedying same. Failure to do so, of course, would give rise to liability for defects or deficiencies in the completed house resulting therefrom.

In this instance, however, the trial judge has concluded that Mr. Noel did fully inform Mr. Devillier of the situation and the latter made the decision to proceed with the work without correction. Thus, the compression of the master bedroom and bathroom and dressing area was done with the knowledge and consent of the homeowner.

This is a finding of fact which should not be disturbed on appellate review unless clearly wrong. Canter v. Koehring Company, 283 So.2d 716 (La.1973); Arceneaux v, Domingue, 365 So.2d 1330 (La.1978). From our review of the record we certainly are unable to say the trial court was clearly wrong in this respect. Thus, the agreement of the parties was modified by mutual consent. Also, in our opinion the plaintiff’s plea of estoppel is applicable. We find no manifest error in the trial court’s ruling as to the other claims asserted by way of reconvention.

For the foregoing reasons, the judgment of the district court is affirmed. The costs of this appeal are assessed to defendant-appellant.

AFFIRMED.


author: LABORDE, Judge.

text:
    Henry J. LACOUR, Plaintiff-Appellant, v. HARTFORD ACCIDENT & INDEMNITY COMPANY, Defendant-Appellee.
    No. 7923.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 17, 1980.
    E. M. Nichols, Lake Charles, for plaintiff-appellant.
    Raggio, Cappel, Chozen & Berniard, Thomas L. Raggio and Frederick L. Cappel, Lake Charles, for defendant-appellee.
    Before FORET, CUTRER and LA-BORDE, JJ.
   LABORDE, Judge.

The plaintiff, Henry J. Lacour, appeals a summary judgment granted by the trial court in favor of the defendant, Hartford Accident and Indemnity Company. Whether or not the trial court erred in determining that no genuine material issue of fact existed is the sole issue on appeal. We reverse and remand. We find that a genuine issue of material fact exists which precludes the granting of a summary judgment.

The plaintiff filed suit seeking damages sustained when his motorcycle was hit by an automobile driven by Karen D. Cooper and insured by Hartford. The accident occurred on July 18, 1976, while Lacour was riding his motorcycle on Louisiana Highway 389. He was struck by the automobile driven by Ms. Cooper. Four eyewitnesses testified in depositions that Lacour had pulled off the shoulder of the highway and reentered the highway into the path of Ms. Cooper’s automobile. Lacour, in his deposition, testified that he did not pull over to the shoulder before the collision but that he kept in his lane of travel and maintained a steady speed when Ms. Cooper’s car collided with the rear end of his motorcycle.

The procedure for summary judgment is set forth in Louisiana Code of Civil Procedure Article 966. The general principles to be followed in deciding a motion for summary judgment were summed up by this court in LaBlanc v. Landry, 371 So.2d 1276 (La.App. 3rd Cir. 1979) as follows:

“... A summary judgment is not to be used as a substitute for a full trial of a controverted fact issue which is material to a decision in the case. Where supporting documents of the proponents and opponents of a motion for summary judgment indicate that a genuine issue of material fact may exist, the motion should be denied. McMoris v. Sheppard, 315 So.2d 342 (La.App. 4th Cir. 1975); Berthelot v. Travelers Insurance Company, 304 So.2d 59 (La.App. 1st Cir. 1974). The summary judgment procedure should be used cautiously and sparingly and any reasonable doubt concerning the existence of such should be resolved against the mover and in favor of a full trial on the merits. Mecom v. Mobil Oil Corp., 299 So.2d 380 (La.App. 3rd Cir. 1974). Moreover, the fact that the court might conclude that the evidence preponderates in favor of the opponent does not justify the denial of the full trial on the merits to resolve the disputed issue. Dougharty v. Calkraft Paper Co., 335 So.2d 772 (La.App. 3rd Cir. 1976).”

In the instant case, the trial court determined that it was an undisputed fact that Lacour had pulled from the shoulder of the highway into the path of Ms. Cooper’s automobile. The court ignored the testimony of the plaintiff that he never slowed down and never pulled off the highway. This is a material issue of fact which must be resolved at a full trial on the merits and not on a motion for summary judgment. Just because the court might be convinced that the evidence preponderates in favor of the defendant, does not justify the denial of a full trial on the merits to resolve the disputed issue. Rougeau v. Sears, Roebuck and Company, 383 So.2d 141 (La.App. 3rd Cir. 1980); Dougharty v. Calkraft Paper Company, 335 So.2d 772 (La.App. 3rd Cir. 1976).

Upon review of the record, we find that a genuine issue of material fact exists which precludes the granting of a summary judgment. Therefore, we find the decision of the trial court to be clearly wrong.

For the above and foregoing reasons, the judgment of the trial court granting the defendant’s motion for summary judgment is reversed and the case is remanded to the trial court for further proceedings according to law. All costs of this appeal are assessed against the defendant-appellee; all other costs are to await further proceedings.

REVERSED AND REMANDED.


text:
    MELYN INDUSTRIES, INC., Plaintiff-Appellee, v. SOFEC, INC., Defendant-Appellant.
    No. 7927.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 17, 1980.

      Landry, Watkins & Bonin, Nan Landry, New Iberia, for defendant-appellant.
    Provost, Ernest & Schwing, James W. Schwing, New Iberia, for plaintiff-appellee.
    Before CULPEPPER, DOMENGEAUX and SWIFT, JJ.
   SWIFT, Judge.

We agree with the trial judge’s well reasoned decision in this case and adopt as our own his opinion which is as follows:

“Plaintiff, Melyn Industries, Inc. supplied labor, rental equipment and some material in the construction of several structures known as Single Anchor Leg Mooring Buoys (SALAM). These large steel buoys were ultimately destined to be used in the Louisiana Offshore Oil Port (Loop). When completed these buoys were to be twenty-one feet in diameter, forty-six feet tall and were to be constructed of five-sixteenths inch steel plate reenforced with one half to three quarter inch plate in various points. Each buoy was designed to weigh approximately one hundred and sixty-five tons. These buoys were designed to be anchored to the bottom of the Gulf Floor to a steel base approximately forty feet by forty feet. There was to be a chain leading from the base to the buoy and the buoy was to be so anchored as to withstand hurricane force winds. The purpose of the buoy is to hold a ship on location while that ship is utilizing the facilities of the Loop. It should be noted, that at all times pertinent to this inquiry, the buoys were no more than large pieces of steel, not yet fabricated into the intended final product.

Melyn was a subcontractor. The principal contractor was Gibson Industries. Gibson was apparently paid for the services and supplies it furnished. However, Gibson did not pay Melyn for the services and materials it furnished. Consequently, it is from Gibson’s failure to pay Melyn that this suit arose. Gibson Industries filed bankruptcy and the action aginst (sic) that corporation has been suspended by the Bankruptcy Court. Melyn applied for a Writ of Sequestration in this Court in conjunction with its assertion of a lien under Louisiana law. Subsequently, Melyn and Sofec entered into an agreement whereby Melyn held up service of the Writ so that the buoys could be removed from the Gibson work site and completed at another work site. The agreement was to the effect that if this Court were ultimately to recognize a valid lien in favor of Melyn Industries, So-fec would then pay the amount of Melyn’s claim.

The issue then before this Court is whether Melyn may assert a valid lien under Louisiana law. The starting point in resolving the problem is Civil Code Article 3183, which states: ‘The property of the debtor is the common pledge of his creditors and the proceeds of its sale must be distributed among them ratably, unless there exist among the creditors some lawful causes of preference.’ Along with Civil Code Article 3183, attention must be directed to Civil Code Article 3185 which states, ‘Privileges can be claimed only for those debts to which it is expressly granted in this code.’ These codal articles are authority for the rule of ‘stricti juris’ in regards to the application of privileges. The jurisprudence of Louisiana stands for the proposition that privileges may not be extended by analogy or implication. Stated differently, any doubt in the statute granting the privilege: must be resolved against the party claiming it and in favor of the party resisting the claim of privilege.

In support of his position the plaintiff relies upon codal articles 3217 and 3237 as well as RS 9:4801 and RS 9:4861. In a supplemental post trial brief the plaintiff has also argued the application of RS 9:4502.

As to Civil Code Article 3217, only subsections two and seven can conceivably be urged by the plaintiff. The relevant parts of Article 3217 read as follows: ‘The debts which are privileged on certain movables are the following: (2) the debt of a workman or repairman for the price of his labor on the movable which he has repaired or made if the thing continues still in his possession, and (7) the price due on movable effects if they are yet in the possession of the purchaser.’ Subsection two, has no application to the present case since the objects in question are no longer in the possession of the plaintiff. Subsection seven, establishes a vendor’s privilege and the relation between Melyn and Gibson and Sofec is certainly not that of vendor-vendee.

Civil Code Article 3237 also relied upon by the plaintiff provides for a privilege on ‘ships and vessels’ in a number of specified circumstances. Subsection eight, which has the strongest application to this case and is presumably the portion of the article relied upon by the plaintiff, provides for a privilege due to suppliers of labor and materials employed in the construction of a vessel if the vessel has never made a voyage. The article clearly contemplates an object used as a means of maritime transportation. The case cited by plaintiff, In Re Safti Craft Corporation, 255 Fed.Supp. 797, 1966, (affirmed 376 Fed.2d 855, 5th Cir.) does not alter this premise. That case held inter alia that the ‘uncompleted hull’ of what was destined to be a tug boat was subject to the privilege outlined in Civil Code Article 3237. Although the term ‘vessel’ has been given a broader application within the ambit of Federal Maritime Law, it does not follow that this liberality should be extended to the area of privileges especially in light of the doctrine of stricti juris.

Plaintiff also relies upon RS 9:4801, which grants a privilege in favor of those who perform work or furnish materials, etc., in the construction or improvement of immovable property. In order for this privilege to have application, the buoy in question must be found to be an immovable. Civil Code Article 463 states that, ‘Buildings, other constructions permanently attached to the ground ... are component parts of a tract of land when they belong to the owner of the ground.’ Civil Code Article 462 states that ‘Tracts of land with their component parts are immovables.’ In determining whether a ‘construction’ is an immovable, comment (c) under Article 463 states that, ‘... in the absence of foundations a certain degree of integation (sic) with the ground is necessary.’ Such was found to be the case in Continental Casualty v. Associated Pipe and Supply, 279 Fed.Supp. 490, 1967, (affirmed 447 Fed.2d 1041, 5th. Cir., 1977). There the Federal Court upheld a lien asserted under RS 9:4801 by various contractors engaged in building a pipeline from the Gulf to a port in Louisiana. That Court held that because of the fact that the pipeline was firmly imbedded in the soil beneath the ocean, it was an immovable. The Court went on to note that since the pipeline constituted an ‘improvement’ to other immovable property (i. e., the Texaco Terminal Facilities) it was covered under the above cited statute regardless of whether the pipeline was an immovable or not.

This Court holds that the buoys in question do not exhibit the degree of integration or permanence that the pipelines in the Continental Casualty case did. The size and bulk of these constructed objects are not in and of themselves sufficient reasons to hold that these structures are immova-bles.

As to the second prong of the Continental holding, the Federal Court would apparently extend the coverage of RS 9:4801 ad infinitum since basically any object fabricated could conceivably serve the purpose of ‘improving’ a building or other construction. In the instant case there is apparently no physical .connection between the ‘improvement’, i. e., the buoy, and the immovable, i. e., the Loop facility. Perhaps this is sufficient to narrow the broad language of the Continental case where as (sic) least the pipeline was physically attached to the immovable.

As to the plaintiff’s reliance upon RS 9:4861, it is more obviously misplaced. The privilege provided by this statute runs in favor of those persons who perform labor or service in the operation of or in connection with the operation of oil wells. These privileges are also extended to those persons who do any trucking, towing or barging or who make any repairs or who furnish equipment, material or supplies for or in connection with the drilling of any wells or in connection with the operation of any wells.

It would appear that the plaintiff does not fit into the category of those people in whose favor the privilege runs. In any case reliance upon this statute would still be inappropriate since the construction, i. e., the buoy in question, is not for or in connection with the operation of any wells as required by the statute. The structure is designed to service an oil terminal facility. It bears no connection to the wellhead and therefore the privilege does not apply.

As to the privilege provided by RS 9:4502, this Court must take cognizance of the extremely broad language used by the Legislature in enacting that statute. This statute reads in pertinent part:

Any person engaged in the making or repairing of movable goods, ... equipment, ... or movable objects ... or movable property of any type or description, has a privilege on the thing for the debt due him for materials furnished or labor performed.

(Emphasis supplied)

To narrow the construction of this broadly worded statute, Sofec has directed the attention of this Court to the case of Graeme Spring & Brake Service, Inc. v. DeFelice, 98 So.2d 314 (La.App.1957). In fact, the jurisprudence interpreting this statute is somewhat sparse. In Graeme, the Appellate Court reversed a decision of the District Court which had recognized a lien asserted under the provisions of RS 9:4502. In that case, the plaintiff was a subcontractor engaged in supplying labor and materials in the construction of a tugboat. Apparently, the principal contractor had been paid in full by the defendant boat owner. The principal contractor declared bankruptcy before the subcontractor was paid.

In the first place, the Court in Graeme, went to great lengths to define the term ‘making’ as it appears in the (sic) in the statute to mean, ‘the production of a new article out of raw materials or generally the giving of new shapes, new qualities or new combinations to matter which has already gone through some other artificial process.’ The Court then went on to hold that:

Plaintiff was not engaged in making the vessel within contemplation of the statute and its only part in the construction thereof was to furnish, upon the contractor’s order, a small portion of the materials used and the incidental labor necessary for the installation of those materials.

The Court thus concluded that only the principal contractor was ‘engaged in making’ the boat in question.

The Court then went on to note that the statute (RS 9:4502) *... does not accord a third person who furnishes labor or materials for the making of movable property a privilege thereon for the amount owed him.’

This Court is, of course, mindful of the doctrine of stricti juris, however this Court cannot (as did the Appellate Court for Orleans Parish) read provisions into the statute which the legislature did not intend.

The precusor (sic) of RS 9:4502 was Act 341 of 1946. The preamble of that Act purports to create the privilege in favor of ‘all persons, firms, or corporation . .. constructing movable goods ... ’ The statute was subsequently amended by Act 427 of 1952. The preamble to that legislation states that the purpose of the Amendment was to add ‘a broader definition of those entitled to the privilege granted therein.’ In this amended version, the words ‘engaged in the making’ were substituted for the word ‘constructing.’

The language and history of RS 9:4502 simply does not support the narrow construction of the statute advanced by the Court in Graeme. This Court must conclude that Melyn fits into the category of ‘any person engaged in the making ... of movable property.’ At the very least, those activities of Melyn fit into the category of ‘giving new qualities ... to matter which has already gone through some other artificial process,’ as stated in Graeme.

It should be kept in mind, that plaintiff, in its petition, made no reference to any specific statutory authority in asserting its right to a Writ of Sequestration. In an amended petition, plaintiff prayed for ‘... recognition of the lien to which plaintiff is entitled under Louisiana law.'

This Court must and does conclude that Melyn has proven its claim for payment for the work done. Further, this Court holds that Melyn has asserted a valid lien on the movable in question as per RS 9:4502. Our Courts are no longer required to rely on the old common law notion of the ‘Theory of the Case.’ Accordingly, this Court shall grant that relief which the facts of this case warrant. Plaintiff’s claim for $11,260.81 and the lien and privilege in support of that amount is hereby recognized.”

Appellant further contends that appellee, as a subcontractor, is not entitled to any privileges for the wages it paid to its employees for the sand blasting and painting, citing Pringle-Associated Mortgage Corporation v. Eanes, 254 La. 705, 226 So.2d 502 (La.1969). In our opinion that decision is not applicable to the circumstances of this case. Aside from the fact that a different lien statute, LSA-R.S. 9:4812, was involved in Pringle, the privilege which that subcontractor unsuccessfully sought to establish through subrogation against a prior recorded mortgage was that afforded laborers which is of higher preference than the one provided subcontractors under the statute. LSA-R.S. 9:4502 makes no such distinction and the appellee here is simply asserting the privilege granted it by this statute, as one engaged through its employees in making three movable things, for the debt due for materials furnished and labor performed in such work.

For the foregoing reasons, the judgment of the district court is affirmed at appellant’s costs.

. AFFIRMED.


author: CULPEPPER, Judge.

text:
    TOP CROP SEED & SUPPLY COMPANY, INC., Plaintiff and Appellant, v. BANK OF SOUTHWEST LOUISIANA, Defendant and Appellee.
    No. 7930.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 17, 1980.

      Miller, Miller & Craton, John F. Craton, Crowley, for plaintiff-appellant.
    John P. Navarre, Oakdale, and Douglas Hebert, Kinder, for defendant-appellee.
    Before CULPEPPER, DOMENGEAUX and SWIFT, JJ.
   CULPEPPER, Judge.

This is a suit to recover the proceeds of three checks of which the plaintiff, Top Crop Seed & Supply Company, Inc., is the payee. Plaintiff alleges the defendant, Bank of Southwest Louisiana, improperly cashed the checks and delivered the funds to one Ross Williams, a stockholder of plaintiff corporation. The defendant bank filed an exception of prescription of one year on the grounds that plaintiff’s alleged cause of action is in tort and occurred in 1975 when the checks were cashed, and this suit was not filed until 1978. The trial judge, relying on Fernon v. Capitol Bank & Trust Co., 190 So.2d 504 (La.App. 1st Cir. 1966), sustained the exception and dismissed plaintiff’s suit. Plaintiff appealed.

On appeal, plaintiff contends it has alleged a cause of action under LSA-R.S. 10:3-419, and that this suit is on a contract as to which the prescriptive period has not run.

The pertinent portions of plaintiff’s petition read as follows:

“2.
“In May, 1975, Ross Williams, then a stockholder of petitioner corporation, took three checks payable to the corporation which were endorsed in the corporate name and cashed them at the defendant bank. Although the checks were not payable directly to Ross Williams, nor were they endorsed to him, defendant gave Ross Williams cash for the checks.
“3.
“The three checks involved are described as follows:
Check drawn on the account of Mr. or Mrs. Coy S. Turner, dated May 9, 1975, payable to the order of Top Crop Seed & Supply, in the amount of $300.00; “a)
“b) Check drawn on the account of Memphis Equipment Company, 766 South Third Street, Memphis, Tennessee, 38101, dated May 14,1975, payable to Top Crop Seed and Supply Company, Inc. in the amount of $2,518.00;
“c) Check drawn on Paret Ranch dated April 29,1975, payable to the order of Top Crop in the amount of $3,600.00.
“4.
“The actions of the bank in giving Ross Williams the cash for the corporations checks is not an acceptable banking practice. The bank therefore acted in bad faith in giving Ross Williams the money for the checks and is liable to petitioner for its actions.”

LSA-R.S. 10:3-419, the section of our Commercial Laws on which plaintiff relies, reads as follows:

“§ 3-419. Willful refusal to accept or pay; payment on a forgery; innocent representation
“(1) When a drawee to whom an instrument is delivered for acceptance refuses to return it on demand; or when a person to whom an instrument is delivered for payment refuses on demand either to pay or to return it; or when a person pays an instrument on a forged indorsement, he is liable to the true owner.
“(2) In an action against a drawee under subsection (1) the measure of the drawee’s liability is the face amount of the instrument. In any other action under subsection (1) the measure of liability is presumed to be the face amount of the instrument.
“(3) Subject to the provisions of this Title concerning restrictive indorsements a representative, including a depository or collecting bank, who has in good faith and in accordance with the reasonable commercial standards applicable to the business of such representative dealt with an instrument or its proceeds on behalf of one who was not the true owner is not liable to the true owner beyond the amount of any proceeds remaining in his hands.
“(4) An intermediary bank or payor bank which is not a depository bank is not liable solely by reason of the fact that proceeds of an item indorsed restrictively are not paid or applied consistently with the restrictive indorsement of an indorser other than its immediate transferor.”

Plaintiff first points to the following definitions in LSA-R.S. 10:4-105:

“ ‘Depositary bank’ means the first bank to which an item is transferred for collection even though it is also the payor bank; ...
“ ‘Collecting bank’ means any bank handling the item for collection except the payor bank; ...”

Under these definitions, plaintiff argues defendant is both the “depositary bank” and the “collecting bank.”

Plaintiff next notes that although this section of our Commercial Laws is very similar to the Uniform Commercial Code version, the Official Comment states it was rewritten to delete reference to Common Law “conversion”, which is foreign to Louisiana. Top Crop then cites cases from Common Law jurisdictions for the rule that where a depositary bank or a collecting bank cashes an instrument over the payee’s forged endorsement, the payee has a cause of action either for conversion, a Common Law tort, or in contract under U.C.C. Section 3-419. Henderson v. Lincoln Rochester Trust Company, 303 N.Y. 27, 100 N.E.2d 117 (1951); Lewittes Furniture Enterprises, Inc. v. Peoples National Bank, 82 Misc.2d 1013, 372 N.Y.S.2d 830 (1975); and Hechter v. New York Life Insurance Company, 46 N.Y.2d 34, 412 N.Y.S.2d 812, 385 N.E.2d 551 (1978). Plaintiff then proceeds to argue that the closest thing in Louisiana to the Common Law tort “conversion” is “dispossession of a movable”, under LSA-C.C. Articles 2936, 2944 and 2961, which provide for the liability of a depositary. Next, we are referred to the discussion in Stone, Louisiana Civil Law Treatise, Vol. 12, Torts Doctrine, Section 255, which indicates the cause of action under C.C. Articles 2936, 2944 and 2961 is not in tort but in contract. Plaintiff says Stone’s reasoning is similar to that of the common law courts cited above and provides a basis for finding Top Crop has a cause of action in contract.

We note Top Crop does not argue it has alleged a cause of action under LSA-C.C. Articles 2936, 2944 and 2961. Apparently, plaintiff realizes defendant is not a depositary within the meaning of these code articles. Instead, Top Crop insists it has alleged a cause of action under LSA-R.S. 10:3-419.

If plaintiff’s petition does indeed state only a cause of action in tort, then its suit is prescribed, because the checks were cashed in 1975 and this suit was not filed until 1978. We note further that defendant has filed only the peremptory exception of prescription of one year applicable to torts. No exception of prescription based on any other grounds has been filed, nor may other prescriptions be noted by this appellate court of its own motion, LSA-C.C.P. Article 927, so other grounds of prescription are not before us.

However, LSA-C.C.P. Article 927 expressly provides that the appellate court of its own motion may notice the failure of plaintiff’s petition to disclose a cause of action. We invoke this rule and will decide this case on the issue which plaintiff presents, i. e., whether its petition states a cause of action under LSA-R.S. 10:3-419, quoted above. Of course, in deciding whether plaintiff’s petition states a cause of action all of the well pleaded allegations of fact must be accepted as true. But, also applicable is the rule that no evidence from any source other than the petition may be considered to support or controvert the objection that the petition fails to state a cause of action. LSA-C.C.P. Article 931.

Paragraph No. 2 of plaintiff’s petition, quoted above, states the three checks, payable to the corporation, were endorsed in the corporate name. However, the petition does not allege that these endorsements were made by Williams or that they were forged or that they were unauthorized by the corporation.

Although there is no allegation in the petition as to whether the defendant bank is the drawee or the collecting bank, the petition could state a cause of action if it met the requirement of R.S. 10:3-419(1) that “when a person pays an instrument on a forged endorsement, he is liable to the true owner.” Thus, whether the defendant bank is the drawee or a collecting bank, it is liable to the plaintiff if it paid the checks on a forged endorsement. There is no allegation that the endorsement was forged. Moreover, even construing the term “forged endorsement” as including an “unauthorized endorsement”, as R.S. 10:1-201 indicates it should, there is no allegation in plaintiff’s petition that the endorsement was unauthorized.

Plaintiff states in its brief that Ross Williams endorsed the checks in the corporate name, and the defendant bank cashed the checks, despite the fact that plaintiff had never before done any business with this bank and had no accounts there. Of course, we cannot consider these statements in plaintiff’s brief as either allegations of its petition or as evidence. We note, however, that even plaintiff’s brief does not state the endorsements were unauthorized.

Since plaintiff’s petition fails to allege either a forged or an .unauthorized endorsement, we conclude plaintiff’s petition does not state a cause of action under LSA-R.S. 10:3-419(1). However, it may be possible that the plaintiff could amend its petition so as to state a cause of action under R.S. 10:3-419(1) or under some other provision of the Commercial Laws or under other laws of this State. Under the authority, of LSA-C.C.P. Article 934, we will remand this case to the district court with the order that plaintiff amend its petition within 15 days after this judgment becomes final so as to allege facts which, in the opinion of the district court state a cause of action which has not prescribed, and if the plaintiff fails to comply with the order to amend, this action shall be dismissed.

For the reasons assigned, the judgment appealed is reversed and set aside. It is now ordered, adjudged and decreed that this case be remanded to the district court with the order that the plaintiff amend its petition within 15 days after this judgment becomes final so as to allege a cause of action which, in the opinion of the district court, has not prescribed, and if the plaintiff fails to comply with the order to amend, this suit shall be dismissed. All costs of this appeal are assessed against the defendant-appellee. Assessment of costs in the trial court must await a final judgment there.

REVERSED AND REMANDED.


author: DOMENGEAUX, Judge.

text:
    George CITIZEN, Plaintiff-Appellant, v. THEODORE DAIGLE & BROTHER et al., Defendants-Appellees.
    No. 7935.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 17, 1980.

      Shelton & Legendre, Aubrey E. Denton, Lafayette, for plaintiff-appellant.
    Cooper & Sonnier, John E. Ortego, Abbe-ville, Edwards, Stefanski & Brousse, Homer E. Barousse, Jr., Crowley, for defendants-appellees.
    Before CULPEPPER, DOMENGEAUX, and SWIFT, JJ.
   DOMENGEAUX, Judge.

Plaintiff, George Citizen, sued his former co-employee, James Cormier, and Cormier’s personal homeowner’s liability insurer, Travelers Insurance Company, for injuries sustained as a result of a shooting accident which occurred on the morning of February 2, 1978, at their employer’s place of business.

Plaintiff originally filed suit against his employer, Theodore Daigle & Brother, Inc., and Daigle’s workmen’s compensation insurer, Sentry Insurance Company, for workmen’s compensation benefits. His petition averred in the alternative, and only in the event the court determined that plaintiff was not entitled to compensation benefits, that his injuries were caused by the intentional acts of Cormier, although he further alleged that the injuries he received were unforeseeable and were not intended by Cormier. The trial against all defendants was conducted January 30,1980. Prior to a decision by the court, plaintiff settled his workmen’s compensation claim for $25,-000.00 and released Daigle and Sentry. This release was approved by Judge Fon-tenot on March 26, 1980. Thereafter, on March 27, 1980, Judge Ware assigned reasons for judgment wherein he held that plaintiff’s only remedy wás for workmen’s compensation. A judgment to that effect, in favor of Cormier and Travelers, was signed on April 8,1980. From that adverse judgment, plaintiff has appealed.

FACTS

All important facts are undisputed. On the morning of the accident, defendant Cor-mier was preparing a Benjamin pellet rifle for shipment back to the manufacturer. The rifle had been returned to George Du-plechadn, another Daigle employee, a day or two earlier by a customer who claimed the gun was defective because pellets would get lodged in the barrel. Duplechain test-fired the rifle several times but no pellets were discharged. Later, Duplechain told Cormier only that when he test-fired the gun no pellets were discharged. Cormier then test-fired the rifle with the same results. The record establishes that neither man loaded the gun prior to test-firing so they were unaware that any pellet was actually lodged in the barrel. Furthermore, the record does not indicate that Cormier knew the nature of the defect prior to the accident. Duplechain knew, but the testimony does not establish that Cormier was told that the gun had been returned because pellets became lodged in the barrel.

Shortly before the accident Cormier was standing at a table near the back of the store, recording pertinent information about the gun onto a merchandise return sheet, when plaintiff entered the room from the back door. As he neared the table at which the defendant was standing, he began conversing with him. The gun lay on the table. Cormier indicated to Duplechain, who witnessed the entire incident, that he wanted to scare the plaintiff. To accomplish that goal, defendant picked up the gun, pumped it three times, and from waist level he pointed it in plaintiff’s direction and fired when plaintiff was approximately four feet away from the defendant. To defendant’s great surprise, a pellet was discharged from the gun and struck plaintiff in the left upper thigh region. Plaintiff received serious injuries to his left leg as a result of the shooting accident.

It is uncontested that Cormier did not intend to inflict injury or pain upon Citizen. He desired only to scare plaintiff. Plaintiff’s petition acknowledges that defendant did not intend to injure plaintiff. The petition, in fact, avers that the injuries were unforeseen and occurred only because the pellet rifle was defective.

Following a trial on plaintiff's tort suit against Cormier, the trial court, relying upon Bourque v. Duplechin, 331 So.2d 40 (La.App. 3rd Cir. 1976), held in favor of defendants because the injury to plaintiff was neither expected nor intended. The court believed that Cormier’s action constituted “horseplay” and was therefore within the course and scope of his employment. The court concluded that plaintiff’s only claim was for workmen’s compensation benefits as provided in La.R.S. 23:1032. We affirm.

ISSUES ON APPEAL

With respect to the rights and remedies available to an injured employee, under the Workmen’s Compensation Act La.R.S. 23.T032 provides:

“The rights and remedies herein granted to an employee or his dependent on account oían 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 shali 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 or 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.” (Emphasis added).

According to paragraph 1 of Section 1032, an employee who suffers an accidental injury arising out of and in the course of his employment is generally limited to his workmen’s compensation claim against his employer, even if his injury was occasioned by a fellow employee. Paragraph 2 excepts from this general rule any injury which results from an intentional act on the part of a fellow employee. Paragraph 3 further provides that a fellow employee who is not engaged in the normal course and scope of his employment when the injury occurs is not immune from suit by his injured fellow worker. Therefore, Cormier will be responsible for the injury he caused to plaintiff if his act was an “intentional act” under Section 1032, or if he was not in the normal course and scope of his employment when the injury occurred. Thus, the following issues are raised by this appeal: (1) Did defendant Cormier’s act constitute an “intentional act” within the meaning of La. R.S. 23:1032? and (2) Whether or not his act was an “intentional act”, was defendant Cormier engaged in the normal course and scope of his employment at the time of the injury to the plaintiff, George Citizen?

INTENTIONAL ACT

In the very recent case of McGuire v. Honeycutt, 387 So.2d 674 (La.App. 3rd Cir. 1980), this Court was faced with the issue of what elements are necessary to constitute an intentional act under La.R.S. 23:1032. That case involved substantially the same issues involved herein. There, plaintiff was in an automobile being driven by defendant, a fellow employee. The parties were transporting an inmate from the Department of Corrections facility to the Huey P. Long Memorial Hospital on a dark rainy night. Defendant had turned on the vehicle’s flashing lights and was driving at a speed in excess of the posted speed limit when he ran through a red light at an Alexandria intersection. A vehicle with the right-of-way crashed into the car occupied by plaintiff, defendant, and the ill inmate, causing plaintiff’s injuries. Plaintiff sued the defendant in tort, alleging that defendant’s intentional act of running the red light caused his injuries. The trial court sustained plaintiff’s position. We reversed by holding that defendant’s act was not an “intentional act” within the meaning of La. R.S. 23:1032. We cited with approval the First Circuit case of Guidry v. Aetna Casualty & Surety Company, 359 So.2d 637 (La.App. 1st Cir. 1978), writ denied 362 So.2d 578 (La.1978), and we adopted that Court’s definition of “intentional act” for the purposes of La.R.S. 23:1032, as follows:

“ ‘To constitute the requisite intent to result in civil liability, the defendant must have entertained a desire to bring about the result which followed and he should have believed that the result was substantially certain to follow. See Monk v. Veillon, 312 So.2d 377 (La.App. 3rd Cir. 1975); Prosser, Law of Torts, (West 1971) pp. 31-32.’
See also, Tobin v. Jacobson, 369 So.2d 1161 (La.App. 1st Cir. 1979).”
387 So.2d 674, 678.

We agree with and will follow the definition of “intentional act” as set forth in Guidry and adopted by McGuire.

The record herein does not establish that Cormier committed an intentional áct within the above definition. While his actions in pointing and firing an “unloaded” gun at the plaintiff may amount to negligence, they cannot be deemed intentional because defendant Cormier did not entertain a desire to bring about the result which followed. Plaintiff admitted as much in his petition for damages. Defendant had no quarrel with the plaintiff and, in fact, he and the plaintiff were engaged in friendly conversation immediately prior to the shooting accident. Duplechain testified that he worked with both plaintiff and defendant for three years and observed that their relationship at work was friendly. He also testified that horseplay among the employees was commonplace.

Furthermore, we do not think Cormier should have believed the result was substantially certain to follow because he believed that the gun was unloaded. A day or two before the shooting Duplechain had test fired that same gun three or four times but no pellets were discharged. Also prior to the shooting, Cormier had test fired the gun at least once with the same result — no pellets were discharged. Defendant did not load the gun and did not know that a pellet might be lodged in the barrel. Therefore, he had every reason to believe that the gun was not loaded when he aimed and fired it at the plaintiff.

Plaintiff cites the case of Bazley v. Tortorich, 380 So.2d 727 (La.App. 4th Cir. 1980), in support of his position that plaintiff’s act was intentional. Insofar as it may conflict with the holding herein, we are inclined to disagree with the Bazley decision.

WAS DEFENDANT ACTING OUTSIDE THE NORMAL COURSE AND SCOPE OF HIS EMPLOYMENT?

If defendant Cormier was acting outside the normal course and scope of his employment at the time of the injury, he would enjoy no immunity to suit in tort by plaintiff. However, we find for the following reasons that Cormier was acting within the normal course and scope of his employment and is therefore immune to suit in tort by Citizen. In so doing we again rely upon the McGuire case, which had occasion to discuss this issue also. Therein we said:

“Since we have determined that the ‘intentional act’ exception does not apply, we must now determine whether Welch was acting outside the normal course and scope of his employment. If so, Welch would have no immunity to suit in tort by McGuire.
* * * * * *
Plaintiff argues that by using the adjective ‘normal’ to modify the term ‘course and scope of employment’ the Legislature limited the ambit of immunity from tort liability provided in LSA-R.S. 23:1032. He argues that since the trial judge found that the acts performed by Welch leading to the accident were not regularly performed by Welch in the course of his employment Welch is not immune from tort liability for harm resulting from those acts.
We disagree. The purpose of Act 147 of 1976 amending LSA-R.S. 23:1032 was to extent tort immunity not only to the employer but also to any principal, officer, director, stockholder, partner or employee of an employer. The act closed the loophole which allowed ‘executive officer’ suits by eliminating the right to tort recovery in cases where the Compensation Act is applicable. If we adopt plaintiff’s argument, we will open ‘another amorphous loophole’ which we believe would not be consistent with the legislative intent to restrict tort liability for co-employees and providing for recovery by workmen’s compensation.

We find it helpful to reproduce the discussion of this issue from the new workmen’s compensation law treatise alluded to in McGuire. The distinguished writers of that treatise, commenting on the language of Section 1032, observed:

“... It is not clear whether the use of the word ‘normal’ is intentional and is meant to convey some meaning other than that officers may not use this immunity as a shield in a tort suit involving a non-work-related injury. It remains at least theoretically possible to argue that an officer who goes outside of his ‘normal’ duties and negligently injures an employee might be liable in tort. Such an officer might well still be insured under the standard liability policy issued to an employer, which often insures an executive officer, director or stockholder ‘while acting within the scope of his duties as such. * * *’ The argument, of course, would be that his duties are broad, but his ‘normal duties’, as to which he has immunity, might be more specific. One hopes that this rather tenuous argument, which would open another amorphous loophole, will not be accepted.
The substantia] closing of this loophole is probably, on balance, a wise move ....” (Emphasis added).

Plaintiff herein seeks to widen this loophole by arguing that defendant’s actions in aiming and firing a pellet rifle at a fellow employee is outside the normal course and scope of his employment. We recognize that defendant was not employed for that purpose, but we believe Cormier is nevertheless immune from tort liability in this instance because his actions amounted to nothing more than horseplay.

The jurisprudence abounds with cases in which an employee’s injury was held to have arisen out of and occurred during his employment, even though the injuries resulted from conduct which bore no real relationship to the work being done. Schexneider v. General American Tank Co., 5 La.App. 84 (Orl.Cir.1926); Brown v. Vacuum Oil Co., 171 La. 707, 132 So. 117 (1930); Favre v. Werk Press Cloth Mfg. Co., Inc., 152 So. 694 (La.App.Orl.Cir.1934); Singleton v. Younger Bros., Inc., 247 So.2d 273 (La.App. 4th Cir. 1971), cert. denied, 259 La. 59, 249 So.2d 202.

The Schexneider case, supra, remarked:

“It is not to be supposed that a crew of men could be obtained unless some of them during working hours would play practical jokes on their fellow workmen, especially if such men were red-blooded Americans.”

5 La.App. 84, 88.

The Court in Favre, supra, also remarked that horseplay is an expectable incident of work.

In discussing the above cases, Malone and Johnson, Vol. 13, § 197, at page 411, make the following comment:

“The very observation that the risk of horseplay is an expectable one and hence arises out of the employment contemplates the fact that some employee must be expected to start the game, and it should be immaterial whether this person is the victim of some other worker.” (Emphasis added).

We recognize that those cases which had occasion to discuss horseplay did so in the context of an employer seeking to avoid having to pay workmen’s compensation to an employee injured as the result of horseplay. None of them discussed whether a coemployee engaged in horseplay is acting within the normal course and scope of his employment when his actions injure another employee. However, we perceive no distinction significant enough to warrant a conclusion that a co-employee who accidently causes an injury to another employee as a result of horseplay is acting outside the normal course and scope of his employment. We therefore agree with McGuire and the writers of the treatise in attaching no special importance to the word “normal” in the third paragraph of Section 1032.

CONSTITUTIONALITY OF LA.R.S. 23:1032 .

The constitutional issue will not be considered on appeal since it was not timely raised. Jarred v. Jarred, 355 So.2d 566 (La.App. 3rd Cir. 1978).

DECREE

For the above and foregoing reasons the judgment of the district court which held that plaintiff’s only remedy is workmen’s compensation is affirmed. Plaintiff’s tort suit against his former fellow employee, the defendant James Cormier, and his personal homeowner’s liability insurer, Travelers Insurance Company, is hereby dismissed. All costs are assessed against plaintiff.

AFFIRMED.

      . Thus, Daigle and Sentry are no longer parties to this suit. Hereinafter, “defendant” shall refer to Cormier and/or Travelers.

      . We do not rely upon Bourque v. Duplechin, supra, as the trial court did, because McGuire is much closer factually to the instant case than Bourque is, and because Bourque was concerned with a regular tort claim rather than an interpretation of La.R.S. 23:1032. However, we note that the trial court did not have the benefit of the McGuire case since that decision was rendered after the trial court rendered judgment in the instant case.

       Malone and Johnson, Louisiana Civil Law Treatise, Vol. 14, Worker’s Compensation Law and Practice (2d Ed. 1980) § 364, p. 156.”

      . Malone and Johnson, Louisiana Civil Law Treatise, Vol. 14, Workers’ Compensation Law and Practice (2d Ed. 1980) § 364, p. 156.

      . The word “some” was emphasized by the treatise writers.


text:
    Caroline Virginia CAMPBELL et al., Plaintiffs & Appellees, v. Edward PREJEAN and Abigail Prejean, Defendants & Appellants.
    No. 7936.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 17, 1980.
    Andrus & Preis, Gary McGoffin, Lafayette, for defendants & appellants.
    Marcia Finkelstein, Lafayette, for plaintiffs & appellees.
    Before CULPEPPER, DOMENGEAUX and SWIFT, JJ.
   CULPEPPER, Judge.

Caroline Virginia Campbell, the natural mother of Ricky Paul Campbell, originally filed this habeas corpus action to regain custody of her child from defendants, to whom she had given the child for adoption. The mother was later joined in her suit by her sister, Elizabeth Tatem, wife of Henry Tatem, who sought custody in the alternative should legal custody not be awarded to the natural mother. The district judge awarded custody to the Tatems. Defendants appeal.

The issue is whether the district judge abused his discretion in awarding custody to plaintiff’s sister and her husband, Mr. and Mrs. Tatem, instead of to defendants.

The facts show that on September 10, 1978, Caroline Virginia Campbell gave birth to a son named Ricky Paul Campbell. The name of the father is unknown. Five weeks after his birth, the child was placed in the care of the Edward Prejean family, defendants herein. On October 24, 1978, Ms. Campbell executed an affidavit authorizing the adoption of her child by the Pre-jeans. The child remained with the Prejean family for approximately IV2 years. Plaintiff then withdrew her consent to the adoption and filed the present action.

At the hearing on the writ, counsel for both parties stipulated that the matter be submitted on the record with the further agreement that the court order a welfare department investigation from the State of South Carolina on the family of Mr. and Mrs. Henry Tatem, who live in Greenville County, South Carolina. Pursuant to the order, a home study was conducted by the South Carolina Department of Social Services. That agency submitted a report that both Mr. and Mrs. Tatem are gainfully employed and financially capable of caring for Ricky. The Tatems reside in a clean, well furnished home and have three children. The study concluded that the Tatem household is a suitable environment for the placement of the child. On the basis of this report and the record, the trial judge awarded custody to the Tatems.

In a custody contest between a parent and a non-parent, the parent’s right to custody is superior unless the parent is unable or unfit to care for the child or has abandoned the child. Wood v. Beard, 290 So.2d 675 (La.1975); Tolar v. Cunningham, 368 So.2d 1188 (La.App. 3rd Cir. 1979). However, in the present case the mother has not appealed to seek custody for herself. It is apparent she desires that her sister have custody. We are aware of no authority, nor have counsel cited any, which gives a preference to a collateral relative over a non-relative. The proper basis for determination of custody in this situation is simply the best interest of the child. This is now the basic test even in custody disputes between parents. Bordelon v. Bordelon, 390 So.2d 1325 (La.1980).

Appellants argue defendants failed to meet the following stated burden of proof enunciated by the Supreme Court in Fulco v. Fulco, 259 La. 112, 254 So.2d 603 (La.1971):

“When the trial court has made a considered decree of permanent custody in the light of the above principles, even though such custody is subject to modification at any time when a change of conditions demands it, the party seeking the change bears a heavy burden of proving that the continuation of the present custody is so deleterious to the children as to justify removing them from the environment to which they are accustomed.” (citations omitted)

In the recent case of Bordelon v. Bordelon, supra, our Supreme Court held the 1977 amendment to LSA-C.C. Article 157 overrules the above rule from Fulco as an inflexible requirement, although stability of environment is still one of the factors to be considered in determining the best interest of the child. Moreover, in the present case, appellants had only the temporary, physical custody of the child under a private agreement with the mother. There had been no judicial determination as to the suitability of the Prejean family to care for the child. Clearly, appellees were not bound to show that the continuation of custody with the Prejeans was so deleterious as to require a change of custody.

The applicable rule of appellate review is stated in Estes v. Estes, 261 La. 20, 258 So.2d 857 (La.1972):

“Further, an appellate court must give great weight to the trial court’s considered determination of custody. If the trial court decides which parent should best have custody for the children’s sake after it has applied correct principles of law, a reviewing court should disturb such custody determination only where there is a clear abuse of the trial court’s discretion in the matter, even though reasonable minds might differ as to the children’s best interest under the variant circumstances suggested by a particular record.”

See also the recent case of Cleeton v. Cleeton, 383 So.2d 1231, (La.1980).

Under this rule of appellate review, we do not find the trial judge clearly abused his discretion. Counsel for both parties stipulated at the hearing on the writ of habeas corpus that the matter be submitted on the record and on an investigation to be made by the Department of Social Services of South Carolina as to the home of Mr. and Mrs. Henry Tatem in Greenville County. The trial judge received the report dated November 28, 1979. It shows the Tatems live in a three bedroom, farm style house in a rural area. The house is clean and well furnished. The Tatems are buying their home and eight acres of land. They own a pony for the children. The Tatems have three children in their home, ages 3 through 11, and, of course, these children are the first cousins of Ricky. Mrs. Tatem has a high school education and is employed at a wage of about $450 a month. Mr. Tatem completed three years of college and is employed by Montgomery Ward Company at a monthly salary of $1125, not including commissions. The report also states the Tatems attend the Episcopal Church and enjoy participating in outdoor activities with the children. In summary, the report states the home of the Tatems appears to be suitable for the placement of Ricky and that the Tatems will be delighted to raise Ricky in their home with his first cousins.

The record before us shows that Ricky has been in the home of the Tatems since April 27, 1980. A follow-up report by the South Carolina Department of Social Services of date May 8, 1980, states that Ricky appears to be well adjusted and warmly received by the Tatem family. This followup report expresses the opinion Ricky is happy and gets lots of love and attention and should remain with the Tatems.

In oral argument before our Court, counsel for the Prejeans, who was not the same as counsel who represented them at the hearing on the writ and entered into the stipulation, argues that the trial judge should also have obtained a report on the Prejean home, or should have taken evidence as to the environment in their home. As stated above, all parties were represented by counsel at the hearing on the writ of habeas corpus, and counsel for the Prejeans entered into the stipulation stated above. Clearly, this constituted a waiver of any right of the Prejeans to secure reports on their home or introduce further evidence.

In oral argument, counsel for the Preje-ans also stated that at the very least the case should be remanded to give the Preje-ans an opportunity to introduce evidence. Under all of the circumstances, including the follow-up report, we conclude this is not a proper case to exercise our discretion to remand the case for further evidence.

For the reasons assigned, the judgment appealed is affirmed. All costs of this appeal are assessed against the defendants-appellants.

AFFIRMED.


text:
    Laura BOUSTANY, Plaintiff-Appellee, v. FLUID DYNAMICS, INC. et al., Defendants-Appellants.
    No. 7942.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 17, 1980.
    Domengeaux & Wright, Bennett Boyd Anderson, Lafayette, for defendants-appellants.
    Alfred F. Boustany, II, Lafayette, for plaintiff-appellee.
    Before FORET, CUTRER and LA-BORDE, JJ.
   LABORDE, Judge.

This case arises out of a two car collision. The driver of one car, Laura Boustany, sued to recover the value of property damages sustained to her car. Defendants were Randy S. Dural — driver of the other car, and Fluid Dynamics, Inc. — Dural’s employer and owner of the car Dural was driving. The trial court held in favor of the plaintiff and against the defendants. From this decision, the defendants have perfected this appeal. We affirm. We find no manifest error in the factual determinations of the trial judge, nor do we find an abuse of discretion by the trial judge in the damages awarded.

On October 8,1979, the defendant, Randy Dural, was driving his employer’s car eastward on Johnston Street, a four-lane thoroughfare in Lafayette. As Dural was in the process of making a left turn, he collided with the plaintiff’s automobile. Plaintiff had just turned from a parking lot onto the westbound lane of Johnston Street.

The trial court held the collision was due to Dural’s negligence and awarded the plaintiff $1,052.15 for repairs to her automobile, $300.00 for rental of a replacement automobile and $250.00 for depreciation of her automobile as a result of the collision.

The defendants contend the trial court erred in not holding the plaintiff con-tributorily negligent. It is clear from the record that the trial court considered this issue and concluded that the plaintiff was free of negligence. The only witnesses to the collision were the plaintiff, Ms. Bousta-ny, and the defendant, Dural. It is the task of the trial judge to determine the credibility of the witnesses and this determination will not be disturbed absent manifest error. Canter v. Koehring Company, 283 So.2d 716 (La.1973). Our review of the entire record indicates that the decision of the trial court is not clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

In answer to this appeal, the plaintiff seeks to have the $250.00 award for depreciation increased to $500.00. Before a Court of Appeal can disturb an award made by a trial court, the record must clearly reveal that the trier of fact abused its “much discretion” in making the award. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976); Reck v. Stevens, 373 So.2d 498 (La.1979).

The plaintiff contends the trial court was bound to accept uncontradicted expert testimony that the amount of depreciation of the plaintiff’s automobile was $500.00. This court held in Lester v. Employers Mutual Liability Ins. Co. of Wis., 333 So.2d 672 (La.App. 3rd Cir. 1976) writ denied, 337 So.2d 875 (La.1976), that “expert opinion as to ultimate facts, even uncontradicted, is not binding on the court. Expert ‘opinions as to value are not binding on the trier of fact’ ”. The trier of fact must evaluate the credibility of opinion evidence as it would other testimony. In State, Department of Highways v. McPherson, 261 La. 116, 259 So.2d 33 (1972), the court explained the factors used in determining the weight to be given opinion testimony:

“... the effect to be given to opinion testimony is governed by the weight the trier of fact accords to that testimony. The weight testimony is entitled to receive is determined by the professional qualifications and experience of the expert, the facts and studies upon which his opinion is based.... In all cases the possible bias of the witness in favor of the side for whom he testifies and the witness’ character and credibility bear upon the weight of the testimony.”

In the instant case, the record reveals the plaintiff’s “expert”, Omar Arafat, was never formally qualified as such. He had been a mechanic and a used car salesman for only five years. He was a personal friend of the plaintiff. From these facts, the trial court reasonably concluded the opinion of Arafat as to the amount of depreciation was inflated. We cannot say the trial court abused its discretion by not accepting Arafat’s opinion as to the amount of depreciation.

In its answer to this appeal the plaintiff-appellee has also asked for damages and attorney’s fees from the defendants-appellants for a frivolous appeal under Article 2164 of the Louisiana Code of Civil Procedure. In Louisiana, appeals are favored and imposition of these penalties will not be granted unless clearly due. Hebert v. Knoll, 370 So.2d 151 (La.App. 3rd Cir. 1979); Franklin v. Franklin, 338 So.2d 1199 (La.App. 3rd Cir. 1976). In the case before us, the appellants’ view of the law is not unreasonable. Thus, damages and attorney’s fees for frivolous appeal are denied.

For the above and foregoing reasons, the decision of the trial court in favor of the plaintiff, Laura Boustany, is affirmed. All costs of this appeal are taxed to the defendants-appellants.

AFFIRMED.