author: CHEHARDY, Judge. STOULIG, Judge,

text:
    Homer P. COFFIN v. Herman LABORDE.
    No. 11546.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 13, 1981.
    Writ Refused March 2, 1981.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, R. Parker LeCorgne, New Orleans, for plaintiff-appellant.

      Muller & Jumonville, Martha L. Jumon-ville, Mandeville, for defendant-appellee.
    Before GARRISON, CHEHARDY and STOULIG, JJ.
   CHEHARDY, Judge.

Plaintiff, Homer P. Coffin, appeals a district court decision in favor of defendant, Herman Laborde, maintaining his exception of prematurity and dismissing the plaintiff’s action asking for a reduction in the price of the home he purchased from the defendant.

At a hearing on the exceptions in the trial court it was established Coffin bought the subject home from Laborde on June 28, 1979. Both Mr. and Mrs. Laborde testified they had no reason to believe there was anything wrong with the sewerage of the home at the time of the act of sale and that they did not become aware of the problems experienced by the Coffins until they were notified by the real estate agent in October of 1979.

Coffin testified he and his wife moved into the home on July 7, 1979 and that five days later one of the toilets overflowed when it was flushed. He then called a plumber who resolved the problem. Coffin said that on August 28, 1979 he was informed by his wife by telephone there had been another overflow and at that time he attempted to get the new telephone number of the Labordes from the telephone company. He testified he then had the problem repaired again by a plumber.

LSA-C.C. art. 2531 states:

“The seller who knew not the vices of the thing is only bound to repair, remedy or correct the vices as provided in Article 2521, of if he be unable or fails to repair, remedy or correct the vice, then he must restore the purchase price, and reimburse the reasonable expenses occasioned by the sale, as well as those incurred for the preservation of the thing, subject to credit for the value of any fruits or use which the purchaser has drawn from it.
“In any case in which the seller is held liable because of redhibitory defects in the thing sold, the seller shall have a corresponding and similar right of action against the manufacturer of the thing for any losses sustained by the seller, and further provided that any provision of any franchise or manufacturer-seller contract or agreement attempting to limit, diminish or prevent such recoupment by the seller shall not be given any force or effect.”

LSA-C.C. art. 2544 provides:

“The action for a reduction of price is subject to the same rules and to the same limitations as the redhibitory action.”

It is noted by appellant, citing the case of Wiltz v. Dixie Auto Sales, Incorporated, 315 So.2d 811 (La.App. 3d Cir. 1975), at page 814:

“A tender for repair is required before suit in redhibition can be instigated. LSA-C.C. art. 2531; Breaux v. Winnebago Industries, Inc., 282 So.2d 763 (La.App. 1 Cir. 1973); Slay v. Ater, 305 So.2d 691 (La.App. 3 Cir. 1974). And see Prince v. Paretti Pontiac Company, Inc., 281 So.2d 112 (La.1973), which was legislatively overruled by the 1974 amendment to LSA-C.C. art. 2531.
“A tender is not required where it is not possible or where vendor has done some act, or made some declaration which demonstrates that a formal offer to return the thing sold would have been fruitless. Alan Randal Company v. Quality Oil Company, 100 So.2d 282 (La.App. 1 Cir. 1958); Slay v. Ater, supra. * * * ”

In the present case, however, the trial court judge said, in giving his reasons for judgment from the bench:

“There was no attempt to make a tender according to the testimony of Mr. Coffin. He attempted to find out the telephone number and the location of the party. He did not say whether he went to the source of the connection between the two parties, the Grady Harper Real Estate people, who according to the testimony of the LaBordes had the address and could get in touch with them. Obviously somebody got in touch with them right after that.”

The district court judge’s conclusion of fact on this issue is supported by the record, and we cannot find that manifest error required to disturb it.

The issue presented to this court therefore is whether to succeed in an action for a reduction of price a buyer must first present evidence that he has tendered the thing to the seller for repair, remedy or correction and that the seller has failed to correct the vices as required in an action of redhibition.

We hold this is not a requirement where the action is only one in quanti mi-noris, Rausch v. Hanberry, 377 So.2d 901 (La.App. 4th Cir. 1979). The cases cited by the plaintiff in support of this contention, including Johnson v. H. W. Parson Motors, Inc., 231 So.2d 73 (La.App. 1st Cir. 1970), and Bendana v. Mossy Motors, Inc., 347 So.2d 946 (La.App. 4th Cir. 1977), all involved factual situations which arose prior to the passage of the 1974 amendment to LSA-C.C. art. 2531, although in each of the above-cited cases the rule was reiterated that although an opportunity to repair is a prerequisite to a buyer’s maintenance of an action of redhibition, there is no such prerequisite to maintaining an action in quanti minoris. We note these cases are distinguishable on the facts in that regard; however, the above cases were, at the times rendered, following the already established jurisprudential rule that an opportunity for repair must be afforded the vendor before an action in redhibition can be maintained, and under that theory the courts saw fit to distinguish such an action from one of quanti minoris, not demanding the prerequisite of opportunity of repair to the latter. The 1974 amendment was merely a legislative restatement of prior appellate jurisprudence which was passed to overrule the case of Prince v. Paretti Pontiac Company, Inc., 281 So.2d 112 (La.1973), which contrarily held that there was no requirement that a purchaser who seeks redhibition must first give his vendor the opportunity of repair. Wiltz v. Dixie Auto Sales, Incorporated, supra.

We hold, therefore, that the seller’s right to opportunity of repair, as set forth in the 1974 amendment to LSA-C.C. art. 2531, applies only to actions of redhibition and that, in accordance with jurisprudence prior to that amendment, as well as Rausch v. Hanberry, supra, an action in quanti mi-noris carries no such prerequisite for its maintenance.

Accordingly, the district court judgment on the exception of prematurity, dismissing the plaintiff’s case, is hereby annulled and this action is remanded for trial on the merits of the case, costs to await the final disposition of this matter.

ANNULLED AND REMANDED.

STOULIG, Judge,

concurring.

I concur.

As stated in the majority opinion the failure to tender for repairs may defeat an action in redhibition but is not a prerequisite for a suit in quanti minoris. Appellant had the duty to mitigate his damages which could be accomplished only by the immediate repairs to the dwelling to make it habitable and avoid additional damages to the premises. His failure to timely notify and grant the opportunity to repair is attributable to plaintiff’s inability to locate the defendant.


source: Caselaw Access Project

author: SCHOTT, Judge.

license: Public Domain

text:
    HIGGINS PLUMBING, INC. v. CASTLE CONSTRUCTION COMPANY OF NEW ORLEANS, INC. and Stanley J. Weber, Jr.
    No. 11556.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 13, 1981.

      Stephen A. Fritch, New Orleans, and Charles F. Barbera, Metairie, for defendants-appellants.
    Henry F. Mestayer, Satterlee, Mestayer & Freeman, New Orleans, for plaintiff-ap-pellee.
    Before GULOTTA and SCHOTT, JJ., and C. LENTON SARTAIN, Assigned Judge.
   SCHOTT, Judge.

This suit arose out of a plumbing subcontract between plaintiff, Higgins Plumbing, Inc., the subcontractor, and defendant, Castle Construction Company of New Orleans, Inc., the contractor. From a judgment in plaintiff’s favor against Castle and its code-fendant, the owner, Stanley J. Weber, Jr., they have appealed.

The factual dispute was over the amount of the contract price between Higgins and Castle for the work to be performed by Higgins. According to Higgins, the price was to be $9,000 and Castle, $7,000. It is undisputed that Higgins was to receive an additional $2,000 over the contract price for excavation on the job. The only error specified by Castle and Weber in this court is that plaintiff failed to carry its burden of proof under LSA C.C. Art. 2277 which requires that proof of an oral contract in excess of $500 must consist of at least one credible witness and other corroborating circumstances.

Mr. and Mrs. Higgins both testified that several months prior to the commencement of the project they had offered to do the plumbing work for about $7500. However, when they were recontacted by Castle shortly before commencement of the work the plans had been changed and they agreed with Castle to do the work for $9,000. At this point no one contemplated that the plumbing contract would include any excavation. Thereafter, the parties agreed that Higgins would be paid an additional $2,000 for excavation.

On April 26, 1977, Higgins rendered an invoice to Castle, itemized to show 53.3% of $9,000 as the contract price or $4797 plus a charge for digging sewer and water lines $2,000, or balance due of $6,797. This bill was paid on May 5. On June 14, 1977, Higgins rendered a second invoice showing 77% of the contract price of $9,000, or $6,930, less a credit for $4,797, leaving a balance due of $2,133. This was paid on June 29, 1977. On October 25, a third billing was rendered for 97% of the contract price of $9,000, or $8,730, less credits totaling $6,930, leaving a balance due of $1800. This is the amount which was in dispute since the balance of 3% of the $9,000 was paid at some point and is not in dispute.

The trial judge heard conflicting testimony between the Higgins and Jesse Powers of Castle as to whether the contract price, exclusive of excavation, was $7,000 or $9,000 and he resolved this conflict of testimony in favor of the Higgins. There is no basis for a reversal of this finding by this court.

The requirements of C.C. Art. 2277 were met by the testimony of Mr. and Mrs. Higgins being the credible witnesses, and the invoices and payments made by Castle constituting corroborating circumstances.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.


author: EDWARD J. STOULIG, Judge,

text:
    Clyde WEBER v. CRESCENT FORD TRUCK SALES, INC.
    No. 11560.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 13, 1981.
    Rehearing Denied Feb. 24, 1981.

      Alonzo T. Stanga, III, Metairie, for plaintiff-appellee.
    Phelps, Dunbar, Marks, Claverie & Sims, Rutledge C. Clement, Jr., New Orleans, for defendant-appellant.
    Before CHEHARDY, GARRISON and STOULIG, JJ.
   EDWARD J. STOULIG, Judge,

pro tem.

Defendant, Crescent Ford Truck Service, Inc., (Crescent) suspensively appeals from a judgment condemning it to pay $6,658.00 to plaintiff, Clyde Weber, as a result of a redhibitory action arising out of the sale of a dump truck.

Plaintiff purchased a two year old, used Ford diesel dump truck from defendant on February 4, 1975 for $16,200.00. A down payment of $4,000.00 ($1,200.00 cash, and $2,800.00 trade-in) was made and the remaining sum of $12,200.00 owed on the purchase price and other allied charges were financed through Ford Motor Credit Company payable in thirty-six monthly installments of $507.40.

In addition to initial minor adjustments, the truck was returned to defendant’s service department on March 25, 1975 and April 7, 1975 for significant repairs in order to eliminate the excessive exhaust smoke caused by the burning of oil. During June, 1975 it became apparent to the parties that the truck’s engine would have to be replaced. Plaintiff left the truck at defendant’s place of business and never sought its return. On November 19, 1975 plaintiff executed a “Voluntary Surrender and Release” in favor of the Ford Motor Credit Company in satisfaction of the outstanding balance due on the purchase price of $15,-217.00. After replacing the motor and other repairs, defendant subsequently sold the truck to Barnabee Martin on February 27, 1976.

The trial judge concluded that Crescent had knowledge of the existence of the defects at the time of the sale and though the evidence was not sufficient to support a recission of the sale, it did justify a reduction in the purchase price in the amount of $6,658.00 consisting of $618.00 reimbursement of expenditure for repairs, $5,040.00 representing damages for “down-time”, and $1,000.00 attorney’s fees. Defendant’s exceptions of no cause or no right of action were dismissed.

Defendant appealed raising the following issues for our determination: Whether the evidence supported the finding that the defects in the truck did exist at the time of the sale and that Crescent had knowledge of this fact. Defendant asserts that even if we affirm the trial judge’s findings with regard to liability, we must allow it credit under C.C. Art. 2531 for plaintiff’s use of the truck during his five months possession. Defendant further contends that the trial court’s award of damages based on “downtime” is manifestly incorrect and the granting of attorney’s fees constitutes an error of law.

The lengthy and complicated trial produced an abundance of conflicting testimony between the experts. Plaintiff and his brother, James Weber, the operator of the truck, testified that when they test drove the truck they noticed a large amount of blue smoke emitting from the exhaust. They both stated they questioned the salesman, Guy Battaglia, on the smoke and he assured them that this was normal for diesel engines. Mr. Battaglia denied any recollection of smoke coming from the exhaust or any questions in that regard, however, he did recall something about an “oil leak in the front and a couple of lights were out”, which problems, he thought, were adjusted before delivery the following day.

The Webers testified that there were problems with the lights, shift, wheels and the engine running hot immediately after the sale. On March 25, 1975 the truck was delivered to Crescent for repairs including replacement of the number one piston. Approximately two weeks later, on April 7, 1975 the remaining seven pistons and all rods, bearings and rings were replaced and the cylinder heads rebuilt. James Weber went to pick the truck up after this major overhaul but shortly after departing defendant’s premises the fan broke off into the radiator, tearing it up and requiring replacement of the radiator.

Clyde Weber was charged $618.00 equaling 50% of the cost for the March 25 and April 7 repairs based on an alleged warranty which provided that the buyer and dealer would split the cost of repairs during the first 30 days. The warranty agreement was honored even though the repairs were made after the 30 day time period had expired. No charge was made for replacement of the radiator.

Both sides agree that the fault in the engine was caused by “blow-by” or excessive pressure in the crank case which pushed the oil out through the seals. Defendant produced an oil sample analysis expert to buttress his argument that James Weber’s improper maintenance of the air filter system caused the “blow-by”. Counsel for plaintiff produced an expert in the field of diesel mechanics who testified that the blue smoke and the bad oil seal existing at the time of the sale evidenced excessive blow-by, constituting a defect in the truck.

Great weight must be given to the trial judge’s finding that the defect existed at the time of the sale and a reduction in the purchase price is warranted. We fail to find any showing that the trial judge was clearly wrong or manifestly in error in his evaluation of two days of testimony from nine witnesses. In his Reasons for Judgment he states:

The Court finds that the initial problems with the truck were the responsibility of defendant, Crescent Ford, but that after the initial repairs were made, plaintiff failed to properly maintain the vehicle thus causing the ultimate problems of dirt in the engine and the ultimate failure of the engine.
* * * * * *
The Court concludes that the evidence was not sufficient to support a recission of the sale; however, the Court does find that the evidence was sufficient to maintain a judgment in quanti minoris for reduction of the price and damages. In determining the amount of the reduction, the Court considers not only the cost of the initial repairs but also the numerous problems, the frequent inconvenience associated with the mechanical problems along with the initial overall poor performance of the truck in relation to that expected.
* * * * * *
... Since the defects did appear within three (3) days after the sale there is a presumption according to Louisiana Civil Code Article 2530 that the defects existed at the time of the sale. Hence, the Court finds that the defendants had knowledge, either actual or constructive, of the existence of the defects at the time of the sale.

Therefore, under Arceneaux v. Domingue, 365 So.2d 1330 (La.1978) absent manifest error we affirm the trial court’s judgment on the issue of liability.

We now turn to a consideration of the damages awarded to plaintiff. During the course of the trial both plaintiff and defendant made references to an agreement where the cost of all repairs made within thirty days of the sale would be borne equally by the parties. We are not favored with a copy of said agreement, and, therefore, are unable to ascertain its import or significance. However, it is undisputed that plaintiff did contribute $618.00 as his 50% pro-rata of the costs of repairs made on March 25 and April 7. There remains only the issue of whether these charges are recoverable in a redhibitory proceeding in view of the agreement between the parties.

Under LSA-C.C. Art. 2531 the “good faith” seller is bound to repair, remedy, or correct the vices in the thing sold, and failing to do so, the purchaser must be reimbursed the purchase price and all reasonable related expenses. It must be concluded from the tenor of this article that all costs of repairs to correct the defect in the thing sold must be borne by the seller. The trial court found that the defendant fulfilled its obligation to repair in March and April, 1975: however, in requiring the plaintiff to pay 50% of the cost of these repairs the defendant was in violation of C.C. Art. 2531.

The terms of the purported agreement obligating the plaintiff to pay 50% of the costs of repairs contravenes the express provisions of Article 2531 and the warranties implied in other codal articles governing redhibition. Being in derogation of these laws, any waiver of rights or benefits flowing from the implied warranty against hidden defects and their remedial costs must be clear, unambiguous, and unequivocal. To be effective the waiver must either refer to the specific codal article or so tract the language of its provisions as to leave no doubt that statutory benefits are being waived. Prince v. Paretti Pontiac Company, Inc., 281 So.2d 112 (La.1973); Dunlop v. Chrysler Motors Corp., 299 So.2d 495 (La. App. 4th Cir. 1974); Stumpf v. Metairie Motor Sales, Inc., 212 So.2d 705 (La. App. 4th Cir. 1968); and Harris v. Automatic Enterprises of Louisiana, Inc., 145 So.2d 335 (La. App. 4th Cir. 1962).

Because the defendant seeks to avoid reimbursing plaintiff the $618.00 he paid towards the repairs, it bears the burden of establishing the terms and conditions of the agreement by the introduction of the document into evidence, thereby affording this court the opportunity to ascertain if it complies with the jurisprudential standards set forth in the above cited eases. Having failed to do so, the court must resolve the effect of the purported agreement against the defendant.

Based upon our finding that the trial judge was correct in holding that Crescent knew of the defect at the time of the sale, it necessarily follows that the alleged agreement between these parties does not relieve the defendant of the obligation to reimburse the plaintiff for the admitted sum he contributed towards the seller’s statutory obligation to bear all expenses in remedying the defects. We affirm the award.

Defendant contends that the award of $5,040.00 for “down-time” is erroneous. Apparently the amount was reached by multiplying $252.00 times 20 days. The trial judge used these figures based on the testimony of James Weber, plaintiff’s brother and exclusive driver of the truck, that it was inoperable for four weeks and on defendant’s exhibit D-17, which indicated that plaintiff could earn as much as $252.00 per day.

Defendant submits the judge’s estimate is based on James Weber’s testimony that 20 working days were lost due to down-time for repairs. The objection is based on the fact that Weber testified even when he had possession of the truck it could only be used two or three days each week due to bad weather during the winter months. Furthermore, the judge incorrectly relied on exhibit D-17 to arrive at $252.00 per day earning figure, when, according to the truck driver, $165.00 represented a good day’s earnings during the time he operated the truck.

We agree with the defendant’s position regarding the amount of daily revenues from the trucking operation. The $250.00 per day gross return is a general guess-estimate based upon plaintiff’s brother-driver’s testimony that 36 loads per day at $7.00 per load could be hauled. No distance or other factors involved in the hauling of sand were ever established in arriving at this daily figure. Such a broad generalization devoid of specifics can not prevail over the same witness’s direct and positive testimony that $165.00 per day would represent an average good day’s earnings with the truck. This latter figure should have been used in arriving at the daily loss of revenue.

The testimony does support the use of a twenty day working figure. Although James Weber testified that during the winter months the truck was used less frequently, he stated on cross-examination that the truck was used for, basically, a five day week. Also, though the first two months of Weber’s possession were winter months, the latter three were in the spring season with better weather and more workdays per week.

The award for down-time is reduced to $3,300.00 ($165.00 X 20 days) and the judgment of the trial court is adjusted accordingly.

Appellant claims it is entitled, under C.C. Art. 2531, to a credit for the use of the truck by plaintiff during the five month period from the date of the sale to return of the truck the following June.

A reading of C.C. Art. 2531 does not support appellant’s position. The first paragraph of this article treats of two situations. It grants the “good faith” seller the right to repair or remedy the vice in the thing sold and thereby fulfill its obligation as a vendor. This article further provides if the seller is unable or fails to remedy the defect, the entire transaction then is vulnerable to an action in redhibition and the seller must return the purchase price, the reasonable expenses of the sale, and the cost for the preservation of the thing. Only in the latter instance, where rescission is decreed is the defendant entitled to a credit for the value of any fruits or use the purchaser enjoyed.

Credit for use is allowed only in rescission because the object of redhibition is to restore the parties to the situation as it existed before the sale. It would be inequitable to require the seller to make the buyer whole by returning the purchase price, and other related reasonable expenses of the sale and preservation and at the same time permit him to retain the benefits of the fruits and use of the thing sold during the period of his possession. In order for the seller to be made whole it is essential that he receive credit for such fruits and use.

However, where quanti minoris is decreed the seller is not entitled to a credit for use because the buyer retains the thing sold and, as the owner, is entitled to its fruits and use. The object of quanti minor-is is to compensate the buyer for any uncorrected vices and defects by a comparable reduction in the purchase price.

We affirmed the trial court’s judgment decreeing quanti minoris and, therefore, conclude that defendant is not entitled to any credit for plaintiff’s use of the truck.

The cases cited by defendant in support of its right to a credit can be distinguished in that every one involves a rescission of the sale and such a credit is not applicable to a reduction in price as granted in this case.

In passing we note the written “Voluntary Surrender and Release” executed by the plaintiff in favor of Ford Motor Credit Company on November 19,1975 provides in part:

“... you are hereby authorized to retain all payments heretofore made by the undersigned as compensation for the use of commodity by the undersigned in connection with the said transaction . .. ”. (Underscoring added.)

Apparently the defendant later acquired the truck from Ford Motor Credit Company and in turn sold it to Barnabee Martin on February 27, 1976.

Finally defendant questions the propriety of the trial court’s award of $1,000.00 attorney’s fees arguing that appellant was a seller in good faith, i. e., “knew not the vice of the thing sold” at the time of the sale and therefore the provisions of C.C. Article 2545 authorizing the granting of attorney’s fees are not applicable.

This contention is in direct contradiction of the trial court’s finding—with which finding we agree—“.. . that the defendant had knowledge, either actual or constructive, of the existence of the defects at the time of the sale”. It further found that the defects appeared within 3 days of the sale.

Based upon these conclusions of fact, unquestionably C.C. Article 2545 applies and the granting of attorney’s fees is proper. No issue of reasonableness of the fee is raised.

Appellee seeks an increase in the award of the attorney’s fees based on the additional legal representation necessitated by defendant’s appeal. In view of the ap-pellee’s failure to appeal from the judgment or answer the appeal we are unable to consider his request for an increase. C.C.P. Art. 2133; Luna v. Atchafalaya Realty, Inc., 325 So.2d 835 (La. App. 1st Cir. 1976); Gour v. Daray Motor Co., Inc., cited supra.

For the foregoing reasons the judgment of the trial court is amended to reduce the award for “down-time” from $5,040.00 to $3,300.00, in all other respects the judgment is affirmed.

AMENDED, AND AS AMENDED AFFIRMED.

ON REQUEST FOR CLARIFICATION AND APPLICATION FOR REHEARING

Appellant filed a request for clarification of the judgment regarding the assessment of the costs of appeal coupled with an application for a rehearing.

The record reflects that the judgment of this court is silent as to the assessment of the costs of this appeal. It also discloses that only the defendant-appellant appealed from the judgment of the district court. Plaintiff-appellee did not appeal or answer the appeal.

On appeal, defendant was successful in having the judgment of the trial court reduced approximately 25%, from $6,658.00 to $4,918.00. In view of the partially successful appeal of defendant, the court is of the opinion that the costs of this appeal should be borne equally by the appellant and the appellee.

Accordingly the judgment of this court dated January 13, 1981 is amended and supplemented to decree: All costs of this appeal are to be borne equally by the appellant and the appellee. In all other respects the judgment is reaffirmed.

The application for a rehearing is denied.

      . Art. 2531. The seller who knew not the vices of the thing is only bound to repair, remedy or correct the vices as provided in Article 2521, or if he be unable or fails to repair, remedy or correct the vice, then he must restore the purchase price, and reimburse the reasonable expenses occasioned by the sale, as well as those incurred for the preservation of the thing, subject to credit for the value of any fruits or use which the purchaser has drawn from it.

      . The instant appeal involves a reduction in purchase price and not a redhibition. This difference is of no legal consequence here because C.C. Article 2544 provides an action in quantis minoris is “. . . subject to the same rules and to the same limitations as the redhibitory action”.

      . Alexander v. Burroughs Corp., 359 So.2d 607 (La.1978); Financial Services Co. v. Ryan, 382 So.2d 215 (La. App. 3rd Cir. 1980); Gour v. Daray Motor Co., Inc., 373 So.2d 571 (La. App. 3rd Cir. 1979); Smith v. Max Thieme Chevrolet Company, Inc., 315 So.2d 82 (La. App. 2nd Cir. 1975); and Robertson v. Jimmy Walker Chrysler-Plymouth, 368 So.2d 747 (La. App. 3rd Cir. 1979).


author: CHEHARDY, Judge.

text:
    In re Lance Joel RAGAS, Jr., Applying for Adoption of Lara Mischelle Williams.
    No. 11564.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 13, 1981.
    Bubrig & Scandurro, Dominick J. Scan-durro, Jr., Buras, and Carl W. Cleveland & Associates, Dawn Barrios, New Orleans, for appellant.
    Emile E. Martin, III, Belle Chasse, for appellee.

      Before GARRISON, CHEHARDY and STOULIG, JJ.
   CHEHARDY, Judge.

Petitioner, Lance Joel Ragas, Jr., appeals a juvenile court decision denying his petition to adopt his stepdaughter, Lara Mis-chelle Williams, because of the absence of consent of the child’s legitimate father, Robert Franklin Williams.

The record reveals that Deborah Ann Walley and Williams were married in Hines County, Mississippi, on January 4, 1976. One child, Lara Mischelle, was born to the parties on July 21, 1976. On September 12, 1978, Walley was granted a consent divorce judgment in Mississippi on grounds of habitual cruel and inhuman treatment. The decree also recited that Williams would have no rights of visitation nor would he be required to pay child support.

Ragas was married to Walley on September 28, 1978 and on September 10, 1979, he petitioned the court to allow him to adopt Lara Mischelle under the provisions of LSA-R.S. 9:422.1, claiming the father had failed to support the child for a period of one year following the judgment awarding custody to the mother.

Williams, a resident of Mississippi, answered the petition alleging that his failure to support the child was due to circumstances beyond his control, that he had been unable to secure gainful employment since his divorce from Walley and asking that Ragas’ petition be dismissed.

The record establishes that it is the opinion of Dr. Richard W. Naef, Williams’ physician who specializes in neurology and psychiatry, after treating him since January 29, 1974, that Williams has mild mental retardation as well as a severe recurring convulsive seizure disorder. Dr. Naef said Williams is an epileptic who must take a fairly large dose of a variety of anticonvul-sive drugs in an attempt to prevent seizures, a condition which he has had since the age of 18 months. Dr. Naef also said Williams appears mildly intoxicated because he must take such large doses of the anti-convulsive medicines and he added Williams’ condition had not improved during the four years he had treated him. It was also Dr. Naef’s opinion that although Williams is a pleasant, reasonable and cooperative young man who is physically strong and would welcome the opportunity for work, he does not qualify for employment and is unable to perform a normal day’s work.

The testimony of Williams regarding jobs he had tried to secure (some of which he had actually held for short periods of time since his divorce from Walley) reinforces his physician’s opinion that, although Williams attended school through the ninth grade and subsequently received training to be a diesel mechanic, he has been unable to secure any lasting employment in the labor market.

Williams, his mother and his sister also testified many of his seizures occur early in the morning, interfering with his ability to get to a job at the scheduled time. Both Williams and his mother also told of his attempts to send Walley checks for small amounts (and a birthday gift for the child), all of which were returned to him unopened. Williams had also tried, as had his mother, to reach Walley by phone regarding the child; however, their calls were not returned.

Walley also testified that Williams was a homosexual, that he smoked marijuana, that he abused drugs, and that she saw him kissing another man; Williams, however, admitted only to smoking marijuana, eating mushrooms and the one act of kissing a person of the same sex, which he could not explain.

The statute under which Ragas seeks to adopt his stepdaughter, LSA-R.S. 9:422.1, states:

“If the spouse of the petitioner is the legitimate parent of the child or if the petitioner is the grandparent or grandparents of the child, then the consent of the other legitimate parent is not necessary if the first and second or the first and third conditions exist:
(1) The spouse of the petitioner or the grandparent or grandparents or the mother or the father have been granted custody of the child by a court of competent jurisdiction and
(2) The other legitimate parent has refused or failed to comply with a court order of support for a period of one year or
(8) The other legitimate parent is a nonresident of this state and has failed to support the child for a period of one year after judgment awarding custody to the mother or father or grandparent or grandparents.”

The applicable jurisprudence surrounding this issue was stated in Adoption of Rapp, 348 So.2d 107 (La.App. 4th Cir. 1977), wherein the court said at page 109:

“It is well-settled that adoption statutes are in derogation of a natural right and must be strictly construed. See Roy v. Speer, 249 La. 1034, 192 So.2d 554 (1966); In re Ackenhausen, 244 La. 730, 154 So.2d 380 (1963). Equally well-settled is the rule that the consent of both parents is required before an adoption will be decreed, except in those instances where parental consent has been specifically dispensed with by law. LSA-R.S. 9:422.1; In re Genin, 240 So.2d 46 (La. App. 4th Cir. 1970). Furthermore, where the failure to support the child has been based on just cause or reasons beyond the parent’s control, the parent is not deprived of his right to give his consent. See In re Hughes, 176 So.2d 158 (La.App. 4th Cir. 1965); In re Adoption of Bickerstaff, 190 So.2d 117 (La.App. 4th Cir. 1966), writ refused, 249 La. 770, 191 So.2d 144 (1966); In re Adoption of Schieman, 204 So.2d 433 (La.App. 4th Cir. 1967); In re Spraggins, 234 So.2d 462 (La.App. 1st Cir. 1970).”

The court also said in Adoption of Latiolais, 376 So.2d 555 (La.App.3d Cir. 1980), at page 560:

“ * * * Thus far, just cause appears to mean nothing more than that failure to support is beyond control of the parent owing it. Moreover, the beyond control test has been liberally applied in favor of the nonsupporting parent. See Adoption of Rapp, 348 So.2d 107 (La.App. 4th Cir. 1977). The Rapp case reemphasized that it is well settled that adoption statutes are in derogation of a natural right and must be strictly construed. Cf. In re Haynes v. Mangham, [375 So.2d 103], supra. It also stated that it is equally well settled that consent of both parents is required before an adoption will be decreed except in those instances where the necessity of parental consent has been specifically dispensed with by law as in LSA-R.S. 9:422.1.
“A review of the development of the concept of just cause in Ackenhausen and the cases which have followed it points up that the statute is not one which grants rights to adoption-seeking stepparents, and it is not so inflexible that it entirely removes discretion from the courts. It is simply a remedial statute which dispenses with the rigid requirement of consent of a parent in the circumstances provided for in the statute.”

The record supports the finding that Williams, because of reasons beyond his control had just cause for failing to support his child due to both his physical condition (which precludes his acquisition of lasting employment) and the refusal of the child’s mother to communicate with him regarding Lara Mischelle or to accept any attempts on his part to contribute whatever small amounts of money he was able to secure from his, at best, sporadic employment.

We should also note that the Mississippi consent divorce judgment stated Williams would not be required to pay child support but would also be deprived of visitation rights. We can only conclude that the physical evaluation and ability of Williams to provide support was a consideration in this consent judgment. LSA-R.S. 9:422.1, which specifically does away with the requirement of consent of the other legitimate parent who has failed to support the child for one year, is referring to failure to obey a court-ordered decree of support.

Accordingly, we can find no manifest error in the district court’s denial of Ragas’ petition to adopt his stepchild.

For the reasons assigned, the trial court decision is affirmed in all respects.

AFFIRMED.


text:
    Karl S. BLAKEWAY v. LEFEBURE CORPORATION and National Union Fire Insurance Company of Pittsburg, a/k/a National Union Fire Insurance Company of Pittsburg.
    No. 11839.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 13, 1981.
    Rehearing Denied Feb. 20, 1981.
    Nick F. Noriea, Jr. and Eldon E. Fallon and J. Robert Ates, Kierr, Gainsburgh, Benjamin, Fallon & Lewis, New Orleans, for plaintiff-appellant.
    Charles W. Schmidt, III, Christovich & Kearney, New Orleans, for defendants-ap-pellees.
    Before GULOTTA and SCHOTT, JJ., and C. LENTON SARTAIN, Assigned Judge.
   SCHOTT, Judge.

Plaintiff, Karl S. Blakeway, has appealed from a dismissal of his suit against his employer, Lefebure Corporation, and its insurer, for workers’ compensation benefits. Shortly after his employment in New Orleans as a service technician plaintiff was sent by defendant to a two-week training seminar in Cedar Rapids, Iowa. The company paid his expenses for travel, lodging and meals, providing him and other seminar participants with a room in the Town House Motel in Cedar Rapids. Seminar classes began on Monday, July 9, 1979, and were conducted from 7:30 A.M. to 4 P.M., Monday through Friday, for the two week period. On Sunday, July 15,1979, plaintiff was injured when he dove into the motel swimming pool between 5 and 6 A.M. The issue is whether the accident was “arising out of and in the course of his employment” so as to be compensable under LSA R.S. 23:1031.

Plaintiff and the other trainees were paid wages only for the hours they spent in class. They were provided with no allowance or per diem for recreational purposes. Thus, the trainees were on their own for the week end except that their meals and lodging were furnished and they were required to report to class at 7:30 A.M. the following Monday morning for the beginning of the second week of the seminar.

Plaintiff and another trainee, Charles Green returned to the motel at about 3 A.M. on July 15 after an evening of eating and drinking in Cedar Rapids and a neighboring city. They changed into their bathing suits and played table tennis in the recreation area which also contained an indoor swimming pool. After several games plaintiff dove into the pool from the shallow end, seemingly intending to fly over the rope dividing the deep end of the pool and to land in the deep water. He apparently landed in the shallow part of the pool, striking his head and sustaining sever injuries.

For an accident to arise out of the employment it must be the result of some risk to which the employee was subjected in the course of his employment and to which he would not have been subjected had he not been so employed; and to occur in the course of employment it must have taken place during the time of employment. Kern v. Southport Mill, 174 La. 432, 114 So. 19 (1932). As an aid to making such a determination the court in Kern said the following:

“But time, place, and circumstance must determine this. When the ill-fated Titanic foundered in the spring of 1912, all persons aboard her were situated exactly alike as to time and place; but they were not all situated alike as to circumstance. Those who traveled for pleasure were present of their own free choice alone; those who traveled for business, whether their own or that of another, were there of necessity. And, when one finds himself at the scene of accident, not because he voluntarily appeared there but because the necessities of his business called him there, the injuries he may suffer by reason of such accident ‘arise out of the necessity which brought him there, and hence ‘arise out of’ his employment, if it so be that he was employed and his employment required him to be at the place of the accident at the time when the accident occurred.”

It seems clear from the court’s discussion that plaintiff would have been covered had he been injured in a fire in the motel after retiring for the evening. Under such circumstances, the following from § 24.30, The Law of Workmen’s Compensation, by Arthur Lawson, would support coverage:

“Thus, it has been uniformly held that a logger who is required to live in a bunkhouse, or a janitor or superintendent who is required to live in an apartment building, or a chef who is required to live in a hotel, should be considered within the protection of the Compensation Act when injured or killed by the burning of his place of residence. Here there is a close causal connection between the requirement of residence and the risk itself, which was the burning of that residence. Similarly, when a logger is injured by the falling of a straw from the bunk above into his open mouth, by an employee, or by falling out of the upper bunk of a double-decker bed, the relations between the required living conditions and the injury is still sufficient to support an award. An even stronger case is that of the strikebreaker who, while living in the employer’s bunkhouse, was killed during the night by a bomb thrown by a striker.”

However, our suggested hypothetical case and all of the actual cases mentioned in the quotation have the ingredients of a close connection between the employee’s work and the necessity of the activity in which the employee was engaged at the time of the accident. In the instant case, we deal with recreational activity under circumstances which raise a question as to its reasonableness.

The employer had to contemplate that plaintiff and the other employees would participate in some recreation during their two-week stay for the seminar. One could hardly expect these employees to retire to their rooms and remain practically immobile on each day when the classes ended and for the week end because the two weeks of classes. The record shows that the motel’s recreational facilities were readily available to the employees. Prom this we conclude that there was coverage had plaintiff met with the same accident while going for a swim just after his Friday afternoon class. Under these circumstances the case would be similar to Rosenquist v. New Amsterdam Casualty Company, 78 So.2d 225 (La.App. Orl.1955) where our predecessor court held that a sales lady and beauty operator employed to sell merchandise and to operate a beauty parlor aboard a vessel operating at sea did suffer a compensable accident when she fell down on the sun deck while in the process of sun bathing. Our hypothetical case of swimming accident occurring shortly after classes would be likewise similar to the facts in Silver Engineering Works, Inc. v. Simmons, 30 Colo.App. 396, 495 P.2d 246 (1972). There the court awarded compensation benefits to the Simmons who went swimming at a nearby beach just after a business conference around mid-day and drowned.

However, our defendants maintain that the particular activity of plaintiff, considering the time and circumstances under which it was taking place, was unreasonable and therefore placed the accident beyond the scope of coverage for compensation purposes. There is no proof that plaintiff was intoxicated although defendants pled that he was and made some effort at trial to prove this. In the final analysis defendants must stand on the proposition that it was unreasonable for plaintiff to play table tennis and go swimming when he returned from his evening on the town with his co-employee as opposed to going to his motel room and retiring for the evening. Activity which might be reasonable for one individual is not necessarily so for another. Life styles differ with personalities. Some require little sleep and enjoy a midnight or an early morning swim while others might find this unreasonable and take their swimming in the afternoon and their rest during the night. We cannot conclude that plaintiff’s activities which immediately led up to his accident were necessarily unreasonable, especially considering that the pool was open to plaintiff and the other trainees on a 24-hour basis.

Having reached these factual conclusions, we return to Kern v. Southport Mill, supra, for further assistance in reaching a legal conclusion. The court said the following:

“In determining, therefore, whether an accident “arose out of” the employment, it is necessary to consider only this: (1) Was the employee then engaged about his employer’s business and not merely pursuing his own business or pleasure; and (2) did the necessities of that employer’s business reasonably require that the employee be at the place of the accident at the time the accident occurred?”

The answer to the first question is that plaintiff was not merely pursuing his own business or pleasure because he was entitled to some reasonable recreation as a part of his employer’s business of having to remain in a motel in Cedar Rapids, Iowa, for two weeks during a training seminar. For him, a swim early on Sunday morning was as reasonable as sleeping at that hour or swimming in the same pool on Sunday afternoon. In answer to the second question, the necessities of the employer’s business required him to be in that motel for two weeks and included the use of the recreational facilities of that motel on a 24-hour basis. Our conclusions in this connection are bolstered by the following also from the Kern case:

“The question whether or not the employee might have been injured in the same way, and even at the same place and time had he not been called there by the necessities of his employer’s business, but had gone there only for his own pleasure or in pursuit of his own business, has nothing whatever to do with the case. It was his employer’s business which called him to the place and time of the accident and not his own pleasure or business; and hence his injuries arose out of his pursuit of his employer’s business and not out of his pursuit of his own business or pleasure.”

R.S. 23:1031 speaks of the two requirements, i. e., arising out of and in the course of his employment. The foregoing discussion seems to be more closely addressed to the question of whether plaintiff’s accident arose out of his employment as opposed to being in the course of employment. According to the Kern case the accident occurs in the course of employment when it takes place during the time of employment. While plaintiff was not in a paid status after Friday afternoon he was still required to be in the motel at Cedar Rapids so as to be back at class at 7:30 A.M. on Monday. Thus, we conclude that the accident occurred during the course of his employment. See Vickers v. Continental Southern Lines, Inc., 383 So.2d 80 (La.App. 3rd Cir. 1980).

There is no dispute but that plaintiff is totally and permanently disabled and entitled to maximum benefits under R.S. 23:1221 which the parties have stipulated to be $141 per week.

Accordingly, the judgment appealed from is reversed and set aside and there is judgment in favor of plaintiff, Karl S. Blake-way, and against defendants, The Lefebure Corporation and National Union Fire Insurance Company, decreeing plaintiff to be totally and permanently disabled and entitled to maximum workers’ compensation benefits in the amount of $141 per week, beginning July 15, 1979, with legal interest on each weekly benefit from the date it became due until paid, and for all costs of these proceedings.

REVERSED AND RENDERED.


author: SAMUEL, Judge.

text:
    In re Roland L. TABER, Application For Restricted Driving Privileges Under La.R.S. 32:415.1.
    No. 11891.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 13, 1981.

      Robert L. Roshto, Baton Rouge, for Dept, of Public Safety, State of Louisiana, defendant-appellant.
    Before SAMUEL, REDMANN and BOU-TALL, JJ.
   SAMUEL, Judge.

Plaintiff filed this suit under R.S. 32:415.1 seeking restricted driving privileges after his driver’s license had been suspended.

Following trial, there was judgment granting a restricted driver’s license. The defendant, Department of Public Safety, has appealed.

The record establishes that plaintiff has pled guilty to three charges of driving while under the influence of intoxicating beverages, one in 1974, another in 1975, and the third in 1980. His license was suspended following the 1975 incident and again suspended after the 1980 incident.

Under the explicit wording of R.S. 32:415.1 A restricted driving privileges cannot be petitioned for after a second suspension of a driver’s license and, thus, the trial court was without authority to grant or order the issuance of a restricted driver’s license.

For the reasons assigned, the judgment appealed from is reversed and it is ordered that plaintiff’s application for restricted driving privileges be, and the same is now, denied.

REVERSED.

      . LSA R.S. 32:414 B(2).

      . “(1) Upon suspension, revocation, or cancellation of a person’s drivers license for the first time only as provided for under R.S. 32:414(B), (C), (D), (E), and R.S. 32:415 said person after initial notice from the department shall have the right to file a petition in the district court of the parish in which the applicant is domiciled alleging that revocation of his driving privileges will deprive him or his family of the necessities of life or will prevent him from earning a livelihood. The district court is vested with jurisdiction to set the matter for contradictory hearing in open court upon ten days written notice to the department, and thereupon to determine whether the allegations of hardship have merit. Upon determination by the court that the lack of a license would deprive the person or his family of the necessities of life, the court may order that the person be granted by the department a restricted license to enable the person to continue to support his family.” (Emphasis ours).

        . Wheeler v. State, Dept. of Pub. Safety, Etc., La.App., 377 So.2d 539; Bradley v. State, Dept. of Public Safety, La.App., 372 So.2d 1259; Perry v. State Dept. of Pub. Saf., Driver’s L. Div., La.App., 353 So.2d 318; Smith v. State, Dept. of Public Safety, La.App., 352 So.2d 443.


author: SCHOTT, Judge. BOUTALL, Judge,

text:
    DIESEL ENGINEERING, S. A. v. ENVIRONMENTAL AIDS CORPORATION. In re ENVIRONMENTAL AIDS CORP. and Fran J. Richardson, Jr.
    No. 12141.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 13, 1981.

      Robert Hugh Matthews and John George DeRussy, New Orleans, for relator.
    Bruce G. Reed, New Orleans, for respondent.
    Before SAMUEL, REDMANN, GULOT-TA, BOUTALL and SCHOTT, JJ.
   SCHOTT, Judge.

We grant certiorari in order to consider the validity of a judgment of the trial court overruling applicants’ exception of lack of procedural capacity on the part of respondent, Diesel Engineering, S.A.

Respondent brought suit against applicants on a promissory note alleging that it was a corporation organized and existing under the laws of the Republic of Panama, authorized to do and doing business in the State of Louisiana. Applicants’ exception of lack of procedural capacity was based on LSA-R.S. 12:314 which provides as follows:

“A. No foreign corporation transacting business in this state shall be permitted to present any judicial demand before any court of this state, unless it has been authorized to transact such business, if required by, and as provided in, this Chapter, and has paid all taxes, excises and licenses due to the state. The burden of proof shall rest upon the corporation to establish that it has been so authorized, and the only legal evidence thereof shall be the certificate of the Secretary of State or a duly authenticated copy thereof. .. .”

Filed into evidence was a certificate of qualification by the Secretary of State as to Diesel Engineering, Inc. Also filed was a letter from the Secretary of State advising that his records failed to reveal a corporation qualified in Louisiana under the name Diesel Engineering, S.A.

At the hearing on the exception, the trial judge concluded that Diesel Engineering, S.A. and Diesel Engineering, Inc. were “obviously the same corporation” because “S.A. is the Spanish equivalent of Inc.”

We disagree with this reasoning and have concluded that the judgment is erroneous. The corporation which brought this suit and seeks to obtain a judgment in its name is Diesel Engineering, S.A. While the terms S.A. and Inc. may be synonymous the alleged corporate names are not the same. If Diesel Engineering, Inc. is the real party plaintiff at interest, why did it not bring the suit in its own name? On the other hand, if Diesel Engineering, S.A. obtains a judgment the judgment creditor will not necessarily be the corporation which is authorized to bring the suit in our courts; namely, Diesel Engineering, Inc.

In its response to this court the respondent does not offer any authority in support of the trial judge’s reasoning but instead makes the argument that R.S. 12:314 A does not apply because it is not transacting business within the provisions of R.S. 12:302. However, respondent is precluded from this argument by its own petition in which it alleged that it was doing business in the state, and the record of the hearing on the exception which contains a statement by the trial court as follows:

“It is stipulated that Diesel Engineering, S.A. is doing business in Louisiana within the meaning of revised statute 12:314 and had the burden before access to Louisiana courts of qualifying in accordance with the corporate laws of Louisiana.”

If the two corporations are the same respondents’ simple remedy was to amend its petition so as to allege its proper name and to obtain judgment in that name. Its failure to do so raises the question as to whether the two corporations are the same entity.

Under LSA-C.C.P. Art. 933, if the grounds for the objection pleaded in the dilatory exception may be removed by amendment of the petition the judgment sustaining the exception shall order plaintiff to remove them within the delay allowed by the court. In our decree we will make such provisions, and if the two corporations are not the same this will not preclude respondent from bringing its suit again after properly qualifying with the Secretary of State. West Publishing Co. v. Intra-State Pipe Line Corp., 254 So.2d 643 (La.App. 4th Cir. 1971) writs refused, 260 La. 405, 256 So.2d 290.

Accordingly, the judgment of the trial court overruling the dilatory exception of want of procedural capacity filed by applicants is reversed and set aside and there is judgment in favor of Environmental Aids Corporation and Fran J. Richardson, Jr., applicants herein, and defendants in the trial court, maintaining their exception of lack of procedural capacity. If Diesel Engineering, S.A. is the same corporation as Diesel Engineering, Inc., respondent is ordered to amend its petition to allege its proper name and to seek judgment in its proper name within ten days from the date the judgment of this court becomes final and upon its failure to so amend, the trial court is ordered to dismiss plaintiff-respondents' suit. The case is remanded to the trial court for further proceedings.

WRITS GRANTED, REVERSED, AND REMANDED.

BOUTALL, Judge,

dissenting:

I do not agree with the issuance of the writ of certiorari or its resolution.

R.S. 12:314 puts the burden of proof upon a corporate suitor to establish that it has been authorized to do business in Louisiana and provides that the only legal evidence thereof shall be the certificate of the Secretary of State. This plaintiff has furnished the certificate of the Secretary of State which shows “Diesel Engineering, Inc.” is authorized to do business. The basic question is whether Diesel Engineering, Inc., and Diesel Engineering, S.A. are the same, or phrased differently, whether Diesel Engineering, S.A. is doing business in Louisiana under the name of Diesel Engineering, Inc.

The trial judge in his remarks simply noted that the letters, “S.A.” mean the same in Spanish as “Inc.” does in English, and accordingly overruled the exception. The record supports the trial judge’s ruling. The certificate entered in evidence shows that Diesel Engineering, Inc. is a corporation domiciled at Panama, Republic of Panama, (as is Diesel Engineering, S.A.) and that a certified copy of the Articles of Incorporation of that entity was filed in his office. Louisiana Law, R.S. 12:303, requires that the Secretary shall not issue a certificate of authority unless the foreign corporation contains within its corporate name the word “Corporation”, “Incorporated” or “Limited”, or an abbreviation of any of these words. Based on this evidence, I believe the trial judge had sufficient evidence to draw a conclusion that Diesel Engineering, S.A. changed its corporate designation to Diesel Engineering, Inc. and that they are the same, overruling the exception.


text:
    Charles BROWN v. Hilda BOUDREAUX, Individually and Karen Boudreaux, a/k/a Karen Boudreaux Through Her Legal Guardian, Hilda Boudreaux.
    No. 11504.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 13, 1981.
    Writ Refused March 2, 1981.
    Paula Perrone Tardo, New Orleans, for plaintiff-appellant.
    Joseph F. Grefer, Gretna, for defendants-appellees.
    Before GULOTTA and SCHOTT, JJ., and C. LENTON SARTAIN, Assigned Judge.
   SCHOTT, Judge.

On October 18, 1966, an acknowledgment of his paternity as to Karen Brown, a child of defendant, Hilda Boudreaux, was purportedly signed by plaintiff, Charles Brown. Plaintiff has appealed from a dismissal of his suit to have his purported signature on the acknowledgment declared a forgery. The only issue in this court is whether the trial judge committed manifest error in his resolution of a factual dispute between the parties.

On August 8, 1977, plaintiff was tried in the Juvenile Court for the Parish of Jefferson for criminal neglect under LSA-R.S. 14:74 and was condemned to pay alimony for Karen Brown. The court’s decision was grounded on the acknowledgment by plaintiff of the child. An appeal from that judgment to this court was dismissed, State v. Brown, 350 So.2d 918 (La. App. 4th Cir. 1977), and an application for writs to the Supreme Court was denied, State v. Brown, 354 So.2d 569 (La.1978).

Although the acknowledgment is in the form of an authentic act as required by LSA-C.C. Art. 203, the testimony of one of the witnesses established that the acknowledgment was not signed before the notary public and the two witnesses. However C.C. Art. 209 provides that proof of paternity may be made by private writings so that the question in this case was reduced to whether plaintiff signed the act or his purported signature was a forgery.

Plaintiff denied having signed the act and offered evidence to show that he was not physically present at a time when the child was conceived. The child was born on August 18, 1966, and Brown testified that the only leave he took from the Army during 1965 or 1966 was around Christmas 1965. He stated that he had sexual intercourse only once with Hilda Boudreaux and that was in May, 1964. He also produced a hand-writing expert who expressed the opinion that the signature of the acknowledgment was not Brown’s, after making the usual comparison of that questioned signature with a number of samples of Brown’s signature and providing a detailed discussion concerning the formation and spacing of letters in the questioned signature as compared to genuine signatures.

On the other hand, Hilda Boudreaux testified that Karen was plaintiff’s child and that Brown voluntarily agreed to sign the acknowledgment after being informed of her birth. Vivian Wilson, an aunt of Hilda Boudreaux, who was a witness on the act of acknowledgment, testified that plaintiff signed the act in her presence. Other witnesses testified that plaintiff had willingly acknowledged the child. Most importantly, Hilda Boudreaux produced a hand-writing expert who testified without equivocation that the signature on the acknowledgment was in fact plaintiff’s.

In his reasons for judgment, the trial judge stated that he was more impressed with defendant’s hand-writing expert and believed defendant’s witnesses, especially Vivian Wilson.

Since this was essentially a credibility call by the trial judge a reversal by this court is not warranted. Accordingly, the judgment appealed from is affirmed.

AFFIRMED.


author: DOMENGEAUX, Judge.

text:
    Clayous ROYER, Plaintiff-Appellant, v. ST. PAUL FIRE & MARINE INSURANCE CO. et al., Defendant-Appellees.
    No. 8174.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 16, 1981.
    Champagne, Colomb & Brumbaugh, Patrick L. Colomb, Lafayette, for plaintiff-appellant.
    A. J. Plaisance, Onebane, Donohue, Bernard, Torian, Diaz, McNamara & Abell, Timothy J. McNamara, Pugh & Boudreaux, Charles J. Boudreaux, Fontenot & Hurl-burt, J. W. Fontenot, Lafayette, for defendant-appellees.
    Before DOMENGEAUX, CUTRER and SWIFT, JJ.
   MOTION TO DISMISS

DOMENGEAUX, Judge.

Defendant-appellee, St. Paul Fire & Marine Insurance Company, moves to dismiss the appeal of the plaintiff-appellant, Cla-yous Royer, contending that the trial court ruling is a nonappealable interlocutory judgment. We dismiss the appeal.

The plaintiff filed this medical malpractice suit in 1973. In July of 1980, the plaintiff petitioned the court for leave to file a second amended and supplemental petition. After a hearing, the trial court granted the plaintiff’s motion to amend his petition insofar as to increase the amount of damages sued for, but denied the motion as to the additional allegations of negligence. From this judgment, the plaintiff has taken this appeal.

An appeal may be taken only from a final judgment or from an interlocutory judgment which may cause irreparable injury. LSA-C.C.P. Art. 2083. A final judgment is one that determines the merits in whole or in part. A judgment that only determines preliminary matters in the course of an action is an interlocutory judgment. LSA-C.C.P. Art. 1841.

A judgment denying a motion to amend a petition is a preliminary matter and does not determine the merits of a case. In Matte v. Continental Casualty Company, 185 So.2d 842 (La.App. 3rd Cir. 1966) this court held that a judgment striking certain allegations in the plaintiff’s petition is an interlocutory judgment. In Succession of Leland, 295 So.2d 89 (La.1974), the fourth circuit followed Matte, holding that a judgment striking the plaintiff’s amending and supplemental petition was an interlocutory judgment and was nonappealable unless it is of such a nature that it would cause irreparable injury. We therefore hold that a judgment denying the plaintiff’s motion to amend his petition is an interlocutory judgment which, unless the appellant can show that it will cause irreparable injury, is nonappealable.

The standard for determining whether an interlocutory judgment may cause irreparable injury is whether any error in the judgment may be corrected as a practical matter in an appeal following the determination of the merits. Jacobs v. Jacobs, 365 So.2d 25 (La.App. 4th Cir. 1978); Hunter v. Health & Social & Rehabilitation, 372 So.2d 577 (La.App. 2nd Cir. 1979); Cheramie v. Vegas, 385 So.2d 453 (La.App. 1st Cir. 1980). In the instant case, we find no such irreparable injury.

Having found that the judgment appealed from is an interlocutory judgment which will not cause irreparable injury, we dismiss this appeal at the appellant’s costs.

APPEAL DISMISSED.

      . The Court in Leland went on to find that irreparable injury would result in that case and allowed the appeal.


author: STOKER, Judge.

text:
    FIRST MORTGAGE INVESTORS, Plaintiff-Appellant, v. CMF & ASSOCIATES, INC., and Apollo Sleep Products, Inc., Defendants-Appellees.
    No. 7879.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 21, 1981.

      Raggio, Cappel, Chozen & Berniard, Christopher M. Trahan, Lake Charles, for plaintiff-appellant.
    Camp, Carmouche, Palmer, Barsh & Hunter, David R. Frohn, Stockwell, Sievert, Viccellio, Clements & Shaddock, Charles D. Viccellio and Stephen C. Polito, Lake Charles, for defendants-appellees.
    Before GUIDRY, STOKER and DOU-CET, JJ.
   STOKER, Judge.

The plaintiff, First Mortgage Investors, filed suit against the defendants, CMF & Associates, Inc. (CMF), and Apollo Sleep Products, Inc. (Apollo), to rescind a sale of allegedly defective bedding. The defendants filed exceptions of prescription which were sustained by the trial court. The plaintiff appeals this judgment.

The issue presented by this case is whether the acts of the defendants served to interrupt the prescriptive period.

The plaintiff is the owner of the Days Inn Motel in Lake Charles. In April 1976 plaintiff purchased 308 sets of bedding from the defendant CMF. Defendant Apollo manufactured and supplied the bedding to CMF. By April 1977 the plaintiff had received numerous complaints regarding the condition of the bedding at the motel. Plaintiff contacted CMF about these problems. The first written correspondence between the parties concerning the condition of the bedding was a letter dated April 11, 1977, from Christopher Fox, president of CMF, to Edwin Sheets of Helmsley-Spear, the company that managed the Days Inn for plaintiff. This letter indicates that arrangements had been made to inspect and evaluate a sample of the bedding at the factory. By letter dated May 31, 1977, Fox informed Sheets that the bedding had been examined but that they were unable to determine the nature of the problem.

In August 1977, Richard Cohen, president of Therapedic, a division of Apollo, conducted an on site inspection of the bedding in the motel. At that time arrangements were made to have a set of bedding tested by Leggett and Platt, a leading bed spring manufacturer. Cohen agreed to replace thirty sets of bedding, with replacement being contingent upon a finding by Leggett and Platt of defective manufacture. After receiving the test results from Leggett and Platt, Cohen notified the plaintiff by a letter dated November 16, 1977, that the problems with the bedding were caused by abuse and misuse and not by defective materials or workmanship. In that letter Cohen stated that he did not “feel it fair that CMF or Therapedic be held responsible to absorb the expense to replace the box springs.” (Cohen 1, Cohen 2, transcript 151-154). There was no subsequent correspondence between the plaintiff and Richard Cohen.

In response to a letter from Sheets on January 30, 1978, containing additional complaints about the bedding, Fox offered to have another set of bedding tested and to have an impartial intermediary inspect the bedding on the motel premises. This offer was made in February 1978 but no further tests or inspections took place in which both the plaintiff and defendant CMF participated.

LSA-C.C. articles 2534 and 2546 provide the prescriptive periods for actions in redhibition. An action against a good faith vendor prescribes within one year of the date of the sale. An action against a bad faith vendor prescribes within one year of the discovery of the defect by the buyer. The manufacturer of a thing is presumed to know the vices of the things he makes and thus is treated as a bad faith vendor. Rey v. Cuccia, 298 So.2d 840 (La.1974).

In the instant case the vendor, CMF, is in good faith. The action against CMF prescribes one year after the date of the sale. Apollo, the manufacturer, is presumed to be in bad faith. Therefore, the action against Apollo prescribes within one year of the discovery of the defect.

Plaintiff’s petition shows that the sale of the bedding took place in April 1976 and that the defect was discovered by the plaintiff by April 1977. Suit was filed January 11, 1979. Since plaintiff’s petition shows on its face that the asserted claim has prescribed, plaintiff has the burden of proving by a preponderance of the evidence that prescription was interrupted in order to defeat the defendants’ exceptions of prescription. Christy-Ann-Lea, Inc. v. Charter Homes of La., Inc., 327 So.2d 569 (La.App. 4th Cir. 1976), writ refused, 332 So.2d 277 (La.1976). Our jurisprudence provides that where attempts have been made to remedy the defect, prescription does not begin to run until these attempts to repair are abandoned. Domingue v. Whirlpool Corporation, 303 So.2d 813 (La.App. 3rd Cir. 1974). An interruption of prescription caused by a seller’s attempts at repair is effective against both the seller and manufacturer. Fleur de Leis Apts. v. Davidson Sash, Etc., 364 So.2d 234 (La.App. 3rd Cir. 1978), writ refused, 366 So.2d 572 (La.1979).

The record in this case does not reflect that there were any actual physical attempts to repair the bedding. Plaintiff urges us to hold that verbal and written communications between the defendant CMF and the plaintiff are equivalent to attempts to repair sufficient to interrupt prescription. In addition plaintiff maintains it was lulled into a false sense of security by these communications and was thereby prevented from asserting its claim against the defendants.

The record of this case consists of the depositions of Edwin Sheets, Christopher Fox and Richard Cohen and includes copies of correspondence among the parties. The record reveals that Christopher Fox of CMF in his communications with the plaintiff maintained that the manufacturer was a reputable firm and would stand behind its warranty. Edwin Sheets admits that at no time did Christopher Fox agree to replace or repair the bedding. Sheets merely states that Fox repeatedly assured him that the warranty would be respected. The record establishes that Richard Cohen of Apollo agreed to replace thirty sets of bedding provided they were defective. Following the tests by Leggett and Platt, Cohen informed the plaintiff that the bedding would not be replaced as the problem was not one of defective materials or workmanship.

We do not consider the communications among the parties to constitute attempts to repair nor do we feel that the plaintiff was lulled into a false sense of security by these communications and was thereby prevented from asserting its claim. Even assuming Cohen’s offer to replace thirty sets of bedding to be an attempt to repair we find that plaintiff knew as of November 16, 1977, that it had a claim to assert against the defendant. We affirm the trial court decision maintaining the exceptions of prescription leveled at plaintiff’s claim in redhibition.

The parties involved in this litigation approached this suit as a case of redhibition subject to a one year prescriptive period. However, the record discloses that the bedding may have been sold with a ten year warranty. The existence of this warranty is pleaded in plaintiff’s original petition. We express no opinion as to the merits of a claim based upon a ten year contractual warranty.

For the reasons assigned we affirm the judgment of the trial court insofar as it sustains the exception of prescription of one year applicable to the action of redhibition but reverse the trial court judgment insofar as it dismisses plaintiff’s action and remand the case to the trial court for further proceedings consistent with the views expressed herein.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

      . The purchase order issued by CMF and accepted by Apollo in connection with the sale bears upon its face the handwritten words “10 year warranty”. We express no opinion as to the meaning these words were intended to have or as to the legal construction and effect to be given them.


text:
    Jack C. HUDGENS, Plaintiff-Appellant, v. INTERSTATE BATTERY SYSTEMS OF AMERICA, INC. et al., Defendants-Appellees.
    No. 8042.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 1981.

      Ward, Steinman & Karst, C. Edward Karst, Alexandria, for plaintiff-appellant.
    Terrence C. McRea, of Franklin, Moore & Walsh, Baton Rouge, Downs & Downs, James C. Downs, Alexandria, for defendants-appellees.
    Before DOMENGEAUX, STOKER and LABORDE, JJ.
   DOMENGEAUX, Judge.

This is a products liability case involving an allegedly defective battery. Plaintiff, Jack C. Hudgens sued Interstate Battery Systems of America, Inc., and Globe Union, Inc., as the manufacturers of an automotive storage battery which allegedly exploded on February 17, 1978, causing eye and facial injuries to plaintiff. Plaintiff also sued Interstate’s and Globe Union’s insurer, Employers Insurance of Wausau, and Troy H. Barron, d/b/a Barron’s Exxon Service Center, the alleged retailer of the battery.

On Friday, February 17, 1978, at about 6 P.M., plaintiff was at his home in Lena, Louisiana, and was preparing to return his employer’s truck to his employer’s place of business in Alexandria, Louisiana. His wife was to follow him in her son’s car in order to provide plaintiff with a ride home after the truck was returned. The car, however, would not start. Plaintiff raised the car’s hood and peered at the engine. It was dark, though, so Mrs. Hudgens offered to get a flashlight from the house. Plaintiff refused this offer and lit a match for light instead. He jiggled the battery cables, thinking they might be loose, but they were not. He then extinguished the flame since the fire had nearly consumed the length of the match. To this point, the above facts are undisputed.

According to plaintiff, who was the only witness, he then lit a second match and was poised directly over the radiator, about two feet from the battery (which was to his left), when a small explosion highlighted by a flash of light occurred, splashing battery acid in his face, causing the eye and facial injuries complained of herein. The facts as plaintiff remembers them, from the time he lit the second match until the explosion occurred, were sharply contested during the trial and will be discussed at length below.

After the incident plaintiff discovered that one of the two battery caps was missing, although he testified he remembered seeing both caps on the battery prior to the explosion. He also discovered that a small hole in a bottom corner of the battery had allowed electrolyte to escape from one cell of the battery. This explained why Mrs. Hudgens could not start the car.

Plaintiff’s suit was tried before the district court on February 22,1980. The court rendered judgment dismissing plaintiff’s suit against all defendants. The judgment was signed April 8, 1980. With respect to the three manufacturer defendants the court concluded that plaintiff failed to carry his burden of proof. The court granted a motion for a directed verdict in favor of the remaining defendant, Troy H. Barron, the alleged retailer of the battery, because that defendant “only handled the battery and did nothing.”

Plaintiff contends the district court erred (1) in finding that plaintiff failed to carry his burden of proving that the battery was defective, that the product was in normal use at the time of the injury and that the defect caused the injuries; and (2) in finding that the manufacturer took all reasonable and appropriate steps to post a warning that could warn the customary user.

We affirm.

LIABILITY OF THE MANUFACTURER

Before the manufacturer of the battery, Globe Union, Inc., will be held liable, plaintiff must establish (1) that the battery was defective (that is, unreasonably dangerous in normal use), (2) that the battery was in normal use when the explosion occurred, and (3) that the defect caused the injury. Weber v. Fidelity & Casualty Insurance Co., 259 La. 599, 250 So.2d 754 (1971); Dixon v. Gutnecht, 339 So.2d 1285 (La.App. 1st Cir. 1976). Plaintiff’s action is defeated because he failed to prove that the battery was defective.

Plaintiff argues in brief that the battery was defective because (1) the walls of the battery were too thin, and (2) the battery contained an insufficient warning label. Before disposing of plaintiff’s arguments pertaining to the alleged defects of the battery, we will summarize the evidence contradicting plaintiff’s account of the facts.

Plaintiff’s version of the facts, from the time he lit the second match until the explosion occurred moments later, was sharply refuted by the defendants’ expert witness, Mr. Everett C. Wilson. Mr. Wilson, the Technical Services Manager for Globe Union Company, Inc., was recognized by the court as an expert in battery handling and installation processes. Mr. Wilson had investigated battery explosions for Globe Union for at least ten years prior to trial. He testified that the explosion could not have occurred under the factual conditions related by plaintiff, because the physical evidence contradicted Mr. Hudgens’ version of the facts.

Plaintiff remembered that both the vent caps were attached to the battery and he testified that he did not remove either one. Both his face and the match were at least two feet from the battery when the explosion which splashed battery acid in his face occurred, he said. Plaintiff apparently contends that the explosion blasted the missing cap from the battery, allowing the acid to be sprayed from the battery. Mr. Wilson testified that if an explosion had occurred, one battery cap would not have been blown from the battery. Instead, the entire battery top would have been ripped off and the battery would have been heavily damaged. However, no appreciable damage was done to the battery.

Mr. Wilson acknowledged that batteries produce explosive gases. However, these gases are vented through the flame barrier vent caps on top of the battery and dissipate into a harmless, non-explosive mixture within four inches of the battery top after escaping from the battery. Thus, if Mr. Hudgens’ match was at least two feet from the top of the battery as he claims it was, the gases would not have ignited. Yet, even if the gases had somehow been ignited, the flames could not have traveled back into the battery to cause an explosion because the vent caps were securely in place, at least according to Mr. Hudgens. Mr. Wilson explained that the flame barrier vent caps, which were extensively tested prior to being used, were designed to allow harmful gases within the battery to exit from the battery through microscopic holes in the vent caps, but the holes were too small to allow an outside ignition source such as a flame or spark to enter the battery.

Mr. Wilson theorized that Mr. Hudgens, after lighting the second match, pulled off the missing vent cap from the battery and brought his face and match within inches of the battery top to check the fluid level in the three cells beneath the removed battery cap. The match then ignited those gases near the battery which were still combustible. The flame traveled into the battery causing the acid to spew forth from the battery, striking plaintiff in the face and eyes. Mr. Wilson concluded that this factual scenario more logically accorded with the physical evidence — the undamaged battery, plaintiff’s evident injuries, and the missing vent cap — and with the known propensity of escaping battery gases to harmlessly dissipate almost immediately after leaving the battery.

Plaintiff produced no expert testimony to counter Mr. Wilson’s testimony and the trial court obviously deferred to Mr. Wilson’s theory of how the accident occurred. We cannot say that the court erred.

We next consider plaintiff’s arguments that the battery was defective either because the walls were too thin or because the battery contained an insufficient warning. Conceivably, the battery may have been defective even if the accident occurred in the manner suggested by Mr. Wilson. However, we find that it was not.

Were the battery walls too thin?

Mr. Wilson testified that the battery walls are 75/1000th of an inch thick. He speculated that the tiny hole which allowed electrolyte to escape from one cell was caused by a sharp object in the corner of the vehicle’s battery tray.

Plaintiff’s counsel theorizes that the aperture which allowed the electrolyte to seep through also allowed explosive gases and vapors to escape from the battery, which gases and vapors then ignited when plaintiff lit a second match. Plaintiff argues that the ease with which the battery casing may be punctured, allowing these harmful gases to escape, rendered the battery defective. Plaintiff also urges that because of this danger, manufacturers should be required to warn potential buyers of the battery that the 75/1000th of an inch battery walls are puncture prone.

Although the record does show that the hole drained cell number six of its electrolyte, no evidence supports plaintiff’s theory that gases also escaped through the opening. In fact, Mr. Wilson testified that gases do not escape through such a hole and that the hole could have played no part in the explosion. We observe also that plaintiff presented no evidence whatsoever to show that a 75/1000th inch thickness for a battery casing is too thin or is unsafe, or that it represents a hazard to the normal user. In the absence of such evidence, we are unable to agree with plaintiff that the battery casing was defectively thin or that an added warning is necessary.

Was the warning label adequate?

We turn now to a consideration of whether the warning printed on the battery cap was sufficient. We hold that it was.

Mr. Wilson explained that a battery is an electrochemical device which stores and releases electrical current through chemical processes. A natural and unavoidable result of these processes is the generation of explosive hydrogen and oxygen gases. In its reasons for judgment, the trial court acknowledged this fact. Mr. Wilson testified that the battery industry has, for many years, been aware of the explosive potential of batteries. Therefore, warnings are placed on all wet cell automotive batteries such as the one in this case. The warning label on the battery involved herein, printed in white against a bright green background, reads:

DANGER-EXPLOSIVE GASES BATTERIES PRODUCE EXPLOSIVE GASES. KEEP SPARKS, FLAME, CIGARETTES AWAY. VENTILATE WHEN CHARGING OR USING IN ENCLOSED SPACE. ALWAYS SHIELD EYES WHEN WORKING NEAR BATTERIES.

We believe the above warning complies with the Consumer Products Safety Commission’s labeling requirements. The warning label on the battery herein is virtually identical to examples of acceptable warnings found in the record.

Chappuis v. Sears Roebuck and Company, 358 So.2d 926 (La.1978), is cited by plaintiff to support his claim that the battery contained an inadequate warning. The case involved a hammer whose face was already chipped when used by plaintiff. While in use by plaintiff the face chipped again, striking plaintiff in the eye. All the experts agreed that a hammer whose face is chipped should be discarded because it will likely chip again. However, the warning “discard this hammer if it becomes chipped” was not on the warning label. The Court held the manufacturers liable because the absence of such a warning was unreasonable. The Court reasoned:

“ . .. There may be many tools or other products which become dangerous for normal use in certain conditions. But when the danger is known to the manufacturer and cannot justifiably be expected to be within the knowledge of users generally, the manufacturer must take reasonable steps to warn the user. It would have been reasonable, in this case, for the manufacturer to add to the warning label the words ‘discard this hammer if it becomes chipped.’ This record makes it difficult to understand why the warning was not made.. . . ”

In the instant ease, the label on the battery cap warned users to keep flames away. If plaintiff had obeyed the warning this unfortunate accident would not have occurred. We find this set of facts clearly distinguishable from the facts in Chappuis, wherein the user of a chipped hammer was not warned by the label that such a use was dangerous.

Since plaintiff has failed to prove that the battery was defective when the explosion occurred, his suit against Interstate Battery Systems, Globe Union, and Employers Insurance of Wausau must be dismissed. In light of our decision, we need not elaborate upon whether the battery was in normal use at the time of the injury, nor upon the extent of plaintiff’s injuries or of the medical care required.

RES IPSA LOQUITUR

Plaintiff has also relied upon the doctrine of res ipsa loquitur to prove he should recover. The doctrine does not apply. The facts and circumstances do not fairly nor reasonably lead to the conclusion that the accident was due to some omission of the defendant’s duty. Boudreaux v. American Insurance Company, 262 La. 721, 264 So.2d 621 (1972); Western Casualty & Surety Co. v. Adams, 381 So.2d 923 (La. App. 3rd Cir. 1980); Davis v. Aetna Insurance Company, 291 So.2d 486 (La.App. 3rd Cir. 1974). In fact, the defendants’ expert witness, Mr. Wilson, advanced a theory which was more logical and reasonable than Mr. Hudgens’ own account of the accident. The unchallenged testimony of Mr. Wilson tended to show the accident probably occurred due to plaintiff’s own negligence rather than to some fault of the defendants. Furthermore, rather than being in the exclusive control of the defendants, which it must be for the doctrine to apply, the battery was in the exclusive control of Mr. Hudgens. Davis v. Aetna Insurance Company, supra. Therefore, the doctrine is not available to plaintiff in this instance.

LIABILITY OF THE RETAILER

Troy Barron, d/b/a Barron’s Exxon Service Center, was the alleged non-manufacturer seller of the battery. There is some evidence which indicates he sold the battery new to Mrs. Hudgens’ son (plaintiff’s stepson) three days before the accident and installed it in the son’s 1965 or 1968 (the record is unclear) Chevrolet where it performed satisfactorily until shortly before the accident.

After trial, the court granted a motion for a directed verdict in favor of this defendant because he “only handled the battery and did nothing.” We affirm.

Even if we assume that the battery was defective (which we ultimately decided it was not), the record is devoid of any evidence tending to show that Troy Barron knew or should have known that the battery was defective. It is settled in Louisiana that the non-manufacturer seller of a defective product is not responsible for damages in tort, absent a showing that he knew or should have known that the product sold was defective. Reeves v. Great Atlantic & Pacific Tea Company, Inc., 370 So.2d 202 (La.App. 3rd Cir. 1979), writ denied 371 So.2d 835, and cases cited therein. Hence, we affirm the district court’s granting of a motion for a directed verdict in favor of defendant Troy Barron.

DECREE

For the above and foregoing reasons the judgment of the district court dismissing plaintiff’s claims against all defendants is affirmed. Costs of this appeal are assessed against the plaintiff.

AFFIRMED.

      . Plaintiffs wife, who was still in the car, did not witness the accident because the raised hood obstructed her view.

      . The missing cap was never recovered. An identical cap was offered by defendants and was accepted into evidence.

      . Globe Union, Inc. admitted that the battery herein was manufactured at its Dallas, Texas, facility in October of 1977.

      . To support this assertion, Mr. Wilson told of some experiments his company had conducted to determine the feasibility of inserting a very thin blow-out panel that would direct the force of a battery explosion down, aside, or away from where a person would probably have been standing. Sections of the battery cover were cut out and replaced by standard weight Saran Wrap. The Saran Wrap was held to the battery by a grease film. The gases were then ignited. The speed and pressure of the combustion was so great that it shattered the entire cover rather than just blowing the Saran Wrap off.

      . Defendants introduced into evidence a Special Committee Report prepared by the Battery Council International (BCI), the battery industry trade organization. The Report was prepared in 1974 after work sessions between BCI and the Consumer Products Safety Commission were conducted. The purpose of those sessions was to establish suggestions and examples as to how BCI could comply with the current laws, which were also outlined in the Report


text:
    In re William T. GABBERT and Mary Lou Gabbert, In the Interest of T. W., a minor.
    No. 52366.
    Supreme Court of Mississippi.
    Feb. 4, 1981.
    George E. Agnew, Jackson, for appellant.
    Beth Davis, Robert G. Jenkins, James Welch, Jackson, for appellee.
    Before SMITH, P. J., and LEE and BOWLING, JJ.
   Appeal from Youth Court, Hinds County; Carl E. Guernsey, Youth Court Judge.

AFFIRMED.


text:
    Edmond L. GARY, Jr. v. Doris Bynum GARY.
    No. 52212.
    Supreme Court of Mississippi.
    Feb. 4, 1981.
    Ross R. Barnett, Jr., Barnett, Montgomery, McClintock & Cunningham, Jackson, for appellant.
    James W. Nobles, Jr., Jackson, for appel-lee.
    Before PATTERSON, C. J., and SUGG and WALKER, JJ.
   Appeal from Chancery Court, Hinds County; Joe G. Moss, Chancellor.

REVERSED AND REMANDED.

SMITH and ROBERTSON, P. JJ., and BROOM, LEE, BOWLING and HAWKINS, JJ., concur.


text:
    Jerry E. SCOTT v. Diane R. Scott GASTRELL.
    No. 52402.
    Supreme Court of Mississippi.
    Feb. 4, 1981.
    R. E. Parker, Jr., David M. Sessums, Var-ner & Parker, Vicksburg, for appellant.
    Gerald E. Braddock, Ellis, Braddock & Bost, Vicksburg, for appellee.
    Before ROBERTSON, P. J., and BROOM and BOWLING, JJ.
   Appeal from Chancery Court, Warren County; Nat Bullard, Chancellor.

AFFIRMED.


text:
    Josephine GRIFFIN v. ILLINOIS CENTRAL GULF RAILROAD and City of Aberdeen, Miss.
    No. 52381.
    Supreme Court of Mississippi.
    Feb. 4, 1981.
    Michael D. Jonas, Aberdeen, for appellant.
    David W. Houston, III, Houston, Cham-berlin & Houston, Aberdeen, Jean S. Ma-gee, Fred M. Bush, Jr., Mitchell, McNutt, Bush, Lagrone & Sams, Tupelo, for appel-lees.
   Appeal from Circuit Court, Monroe County; L. T. Senter, Jr., Judge.

Before PATTERSON, C. J., and SUGG and WALKER, JJ.

AFFIRMED.


text:
    J. T. JAMES v. MISSISSIPPI EMPLOYMENT SECURITY COMMISSION.
    No. 52400.
    Supreme Court of Mississippi.
    Feb. 4, 1981.
    J. T. James, pro se.
    Leo T. Aragon, Jackson, for appellee.
    Before ROBERTSON, P. J., and BROOM and BOWLING, JJ.
   Appeal from Circuit Court, Hinds County; Charles T. Barber, Judge.

AFFIRMED.


text:
    Cornelius J. LADNER et ux. v. Robert P. BENIGNO.
    No. 52388.
    Supreme Court of Mississippi.
    Feb. 4, 1981.
    Cornelius J. Ladner, Bay St. Louis, for appellants.
    George E. Morse, White & Morse, Gulf-port, for appellee.
    Before PATTERSON, C. J., and SUGG and WALKER, JJ.
   Appeal from Circuit Court, Hancock County; Floyd J. Logan, Judge.

AFFIRMED.


text:
    Cleatus Patrick HOGUE and Mrs. Peggy M. Hogue v. Paul FISCHER, Betty Fischer and Hugh M. Love, Jr.
    No. 52343.
    Supreme Court of Mississippi.
    Feb. 4, 1981.
    Harry L. Kelley, Jackson, for appellants.
    Wiley J. Barbour, Henry, Barbour & De-cell, Yazoo City, for appellees.
    Before SUGG, LEE and BOWLING, JJ.
   Appeal from Chancery Court, Yazoo County; E. G. Cortright, Chancellor.

AFFIRMED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and WALKER, BROOM and HAWKINS, JJ., concur.


text:
    Johnny R. ANDERSON v. STATE of Mississippi.
    No. 52546.
    Supreme Court of Mississippi.
    Feb. 11, 1981.
    Johnny R. Anderson, pro se.
    Bill Allain, Atty. Gen. by William S. Boyd, III, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P. J., and SUGG and WALKER, JJ.
   Appeal from Circuit Court, Marion County; R. I. Prichard, III, Judge.

AFFIRMED.


text:
    Mois LAMB v. TUPELO CONCRETE PRODUCTS, INC.
    No. 52457.
    Supreme Court of Mississippi.
    Feb. 11, 1981.
    Ed W. Jenkins, Comer & Jenkins, Boone-ville, for appellant.
    Gene Barton, Tupelo, for appellee.
    Before SMITH, P. J., and LEE and BOWLING, JJ.
   Appeal from Circuit Court, Lee County; Ralph E. Pogue, Judge.

AFFIRMED.


text:
    Billy Edward SCOTT v. Quida R. SCOTT.
    No. 52449.
    Supreme Court of Mississippi.
    Feb. 11, 1981.
    William H. Myers, Pritchard, Myers & Gordon, Pascagoula, for appellant.
    Frank J. Hammond, Jr., Moss Point, for appellee.
    Before PATTERSON, C. J., and SUGG and WALKER, JJ.
   Appeal from Chancery Court, George County; Robert H. Oswald, Chancellor.

AFFIRMED.


text:
    Billy Willie WILLIAMS v. STATE of Mississippi.
    No. 52428.
    Supreme Court of Mississippi.
    Feb. 11, 1981.
    Aubrey M. Childre, McKinley, Zebert & Childre, Pearl, for appellant.
    Bill Allain, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P. J., and BROOM and HAWKINS, JJ.
   Appeal from Circuit Court, Rankin County; Rufus H. Broome, Judge.

AFFIRMED.


text:
    Lofton MASON v. J. B. WHITE et al.
    No. 52427.
    Supreme Court of Mississippi.
    Feb. 11, 1981.
    M. Charles May, C. Eiland Harris, Jackson, for appellant.
    Joe B. Moss, Jackson, Raymond, Keyes, Moss & Piazza, Jackson, for appellees.
    Before ROBERTSON, P. J., and BROOM and HAWKINS, JJ.
   Appeal from Chancery Court, Hinds County; Paul G. Alexander, Chancellor.

AFFIRMED.


text:
    INTERNATIONAL PAPER COMPANY, INC. v. Jeff FLOWERS.
    No. 52416.
    Supreme Court of Mississippi.
    Feb. 11, 1981.
    M. James Chaney, Jr., Teller & Teller, Vicksburg, for appellant.
    Everette Verhine, Vicksburg, for appel-lee.
    Before PATTERSON, C. J., and WALKER and HAWKINS, JJ.
   Appeal from Circuit Court, Warren County; John E. Ellis, Judge.

AFFIRMED.