author: COVINGTON, Judge.

text:
    SOUTHERN MOSAIC TILE, INC. v. Marion J. ALESSI, d/b/a Alessi.
    No. 14579.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1982.
    William D. Beck, Jr., Baton Rouge, for plaintiff-appellee Southern Mosaic Tile, Inc.
    Patrick F. McGrew, Baton Rouge, for defendant-appellant Marion J. Alessi d/b/a Alessi.
    Before COVINGTON, COLE and WATKINS, JJ.
   COVINGTON, Judge.

Marion J. Alessi, d/b/a Alessi, appeals the judgment rendered in favor of Southern Mosaic Tile, Inc. against him on March 11, 1981, in the amount of $5,351.78, with legal interest. We affirm.

This suit commenced as a suit on an oral construction contract to collect the sum of $8,366.56, the balance allegedly due under the contract, based on the furnishing, installing and setting of tile by the tile company on Alessi’s property in the City of Baton Rouge, Louisiana, in October and November of 1978. Alessi filed an answer in the nature of a general denial.

After trial on the merits, the court found that there was no contract between the parties because they “did not have a meeting of the minds as to the ultimate cost of the installation of the tile.” However, the court found that Alessi was “liable for a reasonable amount for the labor and materials furnished.” From the proof offered, the trial judge considered that, based on quantum meruit, the tile company was entitled to recover the sum of $5,351.78. The court arrived at this figure primarily from the testimony of the expert witnesses, particularly that of Mary Kibler, a partner in B & E Building Specialities, which is a distributor of the particular tile used on the Alessi job.

In the instant case, we are faced with a situation where the parties intended to enter into a construction contract. This contract must meet the requisites for an ordinary contract. The four requisites of a valid contract are set out in the Civil Code as capacity of the parties, consent of the parties, a certain object, and a lawful purpose. LSA-C.C. art. 1779. Each particular type of contract, e.g., a construction contract, may have other requisites. If a requisite is missing, there is either no contract at all, or a contract of another type. LSA-C.C. art. 1764; Benglis Sash & Door Co. v. Leonards, 387 So.2d 1171 (La.1980).

In addition, this contract must satisfy the requirements for a construction contract as stated in LSA-C.C. art. 2756, as follows:

“To build by a plot, or to work by the job, is to undertake a building or a work for a certain stipulated price.” (Emphasis ours)

The question then becomes, was there a meeting of the minds on price in the oral contract between Southern Mosaic Tile and Alessi? The trial judge answered in the negative, stating:

“In the final analysis, the Court is of the opinion that these two men (Mortensen, for the tile company, and Alessi) in their dealings back and forth with each other did not have a meeting of the minds as to the ultimate cost of the tile for Mr. Alessi on this building.”

The record supports this finding. See Skains v. White, 391 So.2d 1327 (La.App. 2 Cir. 1980); Stupp Corporation v. Con-Plex, Division of U. S. Industries, 344 So.2d 394 (La.App. 1 Cir. 1977). In October of 1978, Alessi got in touch with Southern Mosaic Tile by telephone, and the parties agreed that the tile company would furnish, install, set and finish tile on the floors and walls of Alessi’s commercial building in Baton Rouge. No certain price was stipulated and no total amount of the cost of the materials and labor was agreed upon by the parties. Thereafter, Southern Mosaic Tile purchased the materials, furnished the labor, installed and finished the tile. Plaintiff billed Alessi by submitting itemized records of the cost of the materials, expenses, labor and a profit item. The work was completed and defendant made no complaint of defects. Mrs. Kibler, plaintiff’s expert, described the Alessi job as “custom.” She testified: “.. . it’s beautiful. I saw them when they were installing it. I watched them work. I was amazed at it. It’s a fantastic job. There’s not another job like it in Baton Rouge of that quality.” Alessi contended, in the pretrial order, that plaintiff was paid for work as billed in progress; and “according to the regularly kept business records of the defendant, the defendant still owes the sum of $2,130.14.” This is based on a price at Baton Rouge of $1.25 per tile, plus labor computed at $1.25 per tile.

We think the jurisprudential development of quantum meruit is applicable to this case. See Skains v. White, supra; Custom Builders & Supply, Inc. v. Revels, 310 So.2d 862 (La.App. 3 Cir. 1975). Generally, quantum meruit is based on the legal (and moral) maxim that no one is to enrich himself at the expense of another. LSA — C.C. art. 1965. This rule is aptly set out in Jones v. City of Lake Charles, 295 So.2d 914 (La. App. 3 Cir. 1974):

“Quantum meruit is an equitable doctrine, based on the concept that no one who benefits by the labor and incidental materials of another should be unjustly enriched thereby. Under those circumstances the law implies a promise to pay a reasonable amount for the labor and materials furnished, even in the absence of a specific contract therefor.”

On the question of quantum meruit, appellant contends that the trial court erred in allowing the introduction of evidence on this issue since appellee had not included in its pleadings “quantum meruit” as a basis for recovery. Under the circumstances of this case, there is no merit in this contention.

The Court in Terral v. Bearden, 338 So.2d 141 (La.App. 2 Cir. 1976), examined the reasons underlying the procedural bar to quantum meruit where it had not been set out in the pleadings, and explained, as follows:

“The reason for not allowing recovery in quantum meruit when suit is brought on a contract and no alternative plea is made, is to avoid surprise and resulting injustice to the defendant. The same reason exists in the code requirements that special damages be ‘specifically alleged’ (C.C.P. Art. 861) and that affirmative defenses shall be ‘set forth affirmatively’ (C.C.P. Art. 1005). See Paxton v. Ballard, 289 So.2d 85 (La.1974) and Townsend v. Cleve Heyl Chevrolet, 318 So.2d 618 (La.App. 2d Cir. 1975). In Paxton, the procedural bar was lifted because the adverse party was timely given ‘fair notice’ by factual pleadings of what the other party was seeking, although the pleading was technically deficient when weighed against the Codal authority. In Paxton, the defendant failed to plead contributory negligence as a bar to recovery. In Townsend, the ‘fair notice’ doctrine of Paxton was extended to cover special damages under La.C.C.P. Art. 861. In both instances, the test applied was whether the adverse party had ‘fair notice’ by the factual pleadings of what the other party was contending and was not ‘surprised’ so as to create an injustice. Where this question is affirmatively answered, the procedural bar because of technically deficient pleadings is not applied. These principles are appropriate here.
“In the instant case, defendant was sent an itemized statement before suit was filed showing the hours worked and the respective hourly rates. Plaintiff’s petition alleged the same information and a copy of the itemized statement was attached. Defendant attempted to negotiate with plaintiff’s attorney after suit was filed and was generally informed by this attorney of plaintiff’s contentions as to the hours and the rates. Defendant was afforded ample time to contest the reasonableness of both the hours and the hourly rates on which plaintiff was basing his case. Defendant did not, but could have asked for a continuance to obtain evidence to rebut plaintiff’s testimony regarding the basis of the hours and the rates (C.C.P. Art. 1154).
“Plaintiff expressly alleged in his petition that the itemization submitted to defendant ‘... represents a fair and reasonable charge for services rendered in view of the skill and time involved and plaintiff is entitled to recover same from defendant.’ The reasonableness of plaintiff’s charges and the amount of time involved were put at issue by this allegation and it was not necessary for plaintiff to plead quantum meruit in the alternative. Under this allegation plaintiff was required to prove the reasonableness and fairness of the time and the charges. Plaintiff did this to the lower court’s satisfaction. We hold therefore that defendant was timely given ‘fair notice’ of plaintiff’s contentions and was not taken by surprise so as to cause him an injustice.”

In the instant case, Alessi was furnished a detailed bill by Southern Mosaic Tile in December of 1978 after completion of the job. The final bill set forth in detail the quantity and costs of materials, the cost of labor, other incidental expenses, and profit for the job. In addition, upon Alessi’s refusal to pay the bill, appellee filed a contractor’s lien together with an itemized statement of account with attached invoices detailing materials, labor costs and incidental expenses. Moreover, the pre-trial order sets out:

“Plaintiff contends that it has not received payment in full for the furnishings, installation of and setting of tile on immovable property located at 8700 Florida Boulevard, Baton Rouge, Louisiana in October and November, 1978, and that a balance of $8,366.56 is due and owing by defendant.”

Hence, we find that from December, 1978, until the trial on March 9, 1981, Alessi was made aware of the contentions of Southern Mosaic Tile in this matter. It is noted that Alessi filed only a general denial, did not avail himself of discovery procedures, and did not request a continuance of the trial. We find that appellant was not deprived of fair and timely notice of appel-lee’s cause of action or claim, and was not or should not have been taken by surprise at any of the evidence presented at the trial. Appellee was not required to plead “quantum meruit” under the circumstances of the instant case in order to be allowed recovery under that theory or doctrine. Terral v. Bearden, supra.

LSA-C.C.P. art. 862 further supports the right of the trial court to grant the relief to which the plaintiff is entitled. It mandates every final judgment to grant the full relief to which the parties are entitled, whether or not such relief has been demanded in the pleadings. LSA-C.C.P. art. 2164 authorizes

an appellate court to grant any relief justified upon the record. Our procedural rules are to be liberally construed to allow consideration of any cause of action or defense, even if not properly labeled or demanded, if the pleadings, taken as a whole, contain sufficient factual allegations to afford fair notice to the adverse party of the relief sought. Greer v. Continental Casualty Company, 347 So.2d 70 (La.App. 2 Cir. 1977). We hold that plaintiff’s allegations under the circumstances of the present case afforded fair notice to Alessi of the factual basis upon which plaintiff .sought relief.

Finally, appellant contends that the evidence presented for the purpose of a quantum meruit award was insufficient.

In Swan v. Beaubouef, 206 So.2d 315 (La.App. 4 Cir. 1968), the Court said:

“The determination of this amount owed by the party receiving the benefit shall be derived from a reasonable evaluation of the services performed as adjusted to the circumstances of the individual situation. See Haase v. Brumfield, La.App., 137 So.2d 680. Thus a necessary issue to the suit involving quantum meruit is the reasonable evaluation of the services when such recovery is due and owing.”

Further, in Jones v. City of Lake Charles, supra at 917:

“The general rule is that the plaintiff who establishes his right to be compensated on quantum meruit should recover as much as he reasonably deserves for his services and for the time and labor required for them. There is no specific test which must be applied to determine the reasonable value of such services. It is a matter of equity depending upon the circumstances of each case. Bordelon Motors, Inc. v. Thompson, [176 So.2d 836 (La.App. 3 Cir. 1965)] supra; Duggan Machine Company v. Consolidated Well Serv. Co., 187 So.2d 124 (La.App. 2 Cir. 1966).”

We have reviewed the evidence contained in the record and find that it fully supports the trial judge’s award. Jens Mortensen, president of Southern Mosaic Tile, Inc., testified about the purchase orders, invoices for the materials, labor and expenses. Mrs. Mary Kibler testified as an expert and placed a reasonable valuation upon a job of this nature. She also testified about the fine workmanship of the tile job. There is other ample evidence in the record on which the trial judge could arrive at a reasonable evaluation of the materials, labor, expenses, and other costs of this job. See Skains v. White, supra.

Accordingly, we affirm the judgment appealed at appellant’s costs.

AFFIRMED.

      . This type , of contract involves more than a mere sale of materials (tile); it involves primarily the furnishing of labor, materials, and the contractor’s skill in the performance of the job. See Henson v. Gonzalez, 326 So.2d 396 (La. App. 1 Cir. 1976).


source: Caselaw Access Project

author: GARRISON, Judge.

license: Public Domain

text:
    Conrad Joseph DUPONT v. EBASCO SERVICES, INC.
    No. 12399.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 2, 1982.
    Gertler & Gertler, David Gertler and M. H. Gertler, New Orleans, for plaintiff-ap-pellee.
    Lemle, Kelleher, Kohlmeyer & Matthews, Albert H. Hanemann, Jr. and Richard K. Rathbun, New Orleans, for defendant-appellant.

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

This is an appeal from a judgment of the district court granting judgment in favor of plaintiff and awarding to him workmen’s compensation benefits in the amount of $140.59 per week, medical expenses in the amount of $3,470.10 and assessing penalties of 12% of the compensation benefits awarded. The court also awarded attorney’s fees in the amount of $2,000.00 and costs to plaintiff. Prom that judgment, which we affirm in part and reverse in part, defendant appeals.

Defendant argues that the trier of fact was manifestly erroneous in his conclusion that plaintiff was partially disabled due to silicosis and that the trial court erred in assessing penalties and attorney’s fees against it in light of R.S. 23:1201.2.

The trial judge provided the following written reasons for judgment:

“This is a suit for workmen’s compensation benefits wherein plaintiff alleges to have developed an occupational disease known as silicosis while in the course and scope of his employment with defendant, Ebasco Service, Inc.
“Plaintiff was working as a crane operator situated about 80 feet high inside of the reactor core building (R.C.B.) at the Waterford 3 Nucelar Power under construction in Taft, Louisiana. Plaintiff worked in the R.C.B. as a crane operator from December, 1977 to May 22, 1979, or for approximately eighteen months.
“Sandblasting, concrete grinding, and welding were fairly consistent activities inside of the R.C.B. during plaintiff’s employment. This Court finds that plaintiff was exposed at various times throughout his employment with defendant to high levels of airborne silica particles as a result of the sandblasting activities. Plaintiff, along with several other co-workers, testified that the air inside the R.C.B. was often filled with such a concentration of dust during and after the sandblasting activities that visability was often limited to 40 or 50 feet. Plaintiff had to communicate via radio with the ground personnel when operating his crane because he could often not see the ground level because of the dust inside the R.C.B.
“On May 21,1979 plaintiff left work complaining of back and chest pains. The next day when his breathing became very difficult, he was admitted to and placed in the intensive care unit at West Jefferson Hospital and stayed there for approximately nine days. Dr. Martin Brown, recognized by this Court as an expert in the field of pulmonary diseases, has been treating plaintiff since May 22, 1978 and continues to see plaintiff regularly. Dr. Brown testified that on May 22, 1979, plaintiff was suffering and is still suffering today from silicosis caused by inhalation of silicone dioxide particles and other foreign particles as a result of plaintiff’s occupational exposure while employed by Ebasco Services, Inc. Furthermore, Dr. Brown testified that plaintiff is markedly disabled from physical labor and cannot work as a crane operator or as a diesel mechanic, both trades of which plaintiff has had training. However, Dr. Brown did believe that plaintiff could perform manual labor of a sedentary nature. “Under the 1975 amended workmen’s compensation statute, if an employee is prevented from returning to his former employment but is not prevented from engaging in gainful activity at some job, he is considered ‘partly disabled.’ Mc-Elhaney v. Beldon Corporation, 376 So.2d 539 (La.App. 3rd Cir. 1979); Radial v. Highlands Insurance Company, 355 So.2d 1355 (La.App. 3rd Cir. 1978); Kilbourne v. Armstrong, 351 So.2d 802 (La.App. 1st Cir. 1977).
“Therefore, this Court finds, in view of the entire evidence that plaintiff has proven by a preponderance of the evidence that he is partially disabled within the meaning of LSA-R.S. 23:1221(3) as a result of silicosis caused by plaintiff’s occupational exposure while in the course and scope of his employment with Ebasco Services, Inc.
“With respect to penalties and attorney’s fees requested herein by plaintiff, the record reflects that plaintiff’s attorney wrote a letter to defendant on August 2, 1979 advising the defendant of plaintiff’s situation and requesting compensation benefits. Plaintiff received no reply and subsequently filed this suit on August 13, 1979. Finally, on December 20, 1979, the defendant arranged for the plaintiff to be examined by a physician. Said physician, Dr. Hans Weil, submitted his report on January 25, 1980. (Ex. P-12). Upon reviewing this report, this Court believes that penalties and attorney’s fees should be awarded.
“LSA-R.S. 23:1201.2 authorizes penalties and attorney’s fees where the employer arbitrarily, capriciously, or without just cause, fails to pay or discontinues payment of benefits.
“Clearly, Dr. Weil’s report (Ex. P-12) submitted to the defendant suggests that plaintiff could be suffering from the occupational disease, silicosis, especially when considering the nature of the plaintiff’s work.
“Therefore, in accordance with LSA-R.S. 23:1201.2, this Court has awarded a penalty of 12% of the total amount past due plus attorney’s fees in the amount of $2,000.00.”

On appeal the defendant-employer argues that the trial judge erred in his factual determinations of the amount of silica dust to which plaintiff was exposed and his conclusion that plaintiff suffered from silicosis. Defendant further argues that the trial judge erroneously excluded business records and medical reports and that the trial judge erroneously awarded attorney’s fees and penalties by finding that appellant arbitrarily and capriciously refused to pay workmen’s compensation benefits.

Defendant argues that all sandblasting occurred on the 11:00 p. m. to 7:00 a. m. shift, or third shift, and that plaintiff worked on the first shift, so that he was not exposed to the sandblasting. The first shift began at 7:00 a. m. Plaintiff and his coworkers testified that the dust was so concentrated in the air that visibility was limited to 40 feet, that construction activities would cause the residue dust to be disturbed and re-enter the air, and that visibility was so limited that cranes were operated by radio instruction. The foreman testified that he had received numerous complaints and the oiler testified that he was required to clean Dupont’s crane every third day to remove the one and one-half inch of film. The workers further testified that sandblasting was not limited to 11:00 p. m. to 7:00 a. m., but proceeded at all hours.

Defendant argues that there were ventilating fans strategically placed about the work area in order to minimize the risks of silicosis. The workers testified that there was one fan and that it was broken and inoperative more than it was in use.

Defendant relied on the testimony of its expert, Dr. Yehia Hammad, who found that the dust accumulations were significantly below unsafe limits (the T.L.V. or Threshold Limit Value). Dr. Hammad’s calculations were based on factual information provided by the defendant. That information was directly contradictory to the workers’ testimony as discussed above. Dr. Hammad never visited the site or conducted on-site tests; rather, he had the defendant conduct on-site tests for him. Apparently, the trial judge resolved the credibility determination in favor of the workers, thus invalidating the factual basis of the expert’s opinion.

Turning to the question of attorney’s fees and penalties, we find that the trial court committed error in awarding these items of damages to plaintiff. In the instant appeal, the employer relied on the defense that plaintiff had smoked cigarettes for a number of years and argued that plaintiff’s illness was not silicosis, but rather some other smoking-related disorder. This was a valid defense. It has long been held that an employer cannot be penalized by taking close factual questions to the courts for decision and for relying on valid defenses. Thompson v. Natchitoches Parish Hospital Service District, 335 So.2d 81 (La. App. 3rd Cir. 1976); writ denied 338 So.2d 298; Hull v. Liberty Mat. Ins. Co., 236 So.2d 847 (La.App. 1st Cir. 1970); writ denied 256 La. 862, 239 So.2d 361. Reliance upon a valid defense is not an arbitrary or capricious refusal to pay as required by statute.

For the reasons discussed, the judgment of the district court is amended to read as follows and, as amended, is affirmed:

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of plaintiff, CONRAD JOSEPH DUPONT, and against defendant, EBASCO SERVICES, INC., decreeing the plaintiff to be partially disabled within the intendment of the Louisiana Workmen’s Compensation Statute as provided in LSA-R.S. 23:1221(3) and awarding him judgment for workmen’s compensation benefits against the defendant for the sum of ONE HUNDRED FORTY AND 59/100 ($140.59) DOLLARS per week for each weekly period beginning May 22, 1979, together with legal interest thereon from due date until paid so long as plaintiff’s disability continues not beyond a maximum of four hundred fifty weeks.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of plaintiff, CONRAD JOSEPH DUPONT, and against defendant, EBASCO SERVICES, INC., for past due medical expenses for the sum of THREE THOUSAND FOUR HUNDRED SEVENTY AND 10/100 ($3,470.10) DOLLARS.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that defendant, EBASCO SERVICES, INC., pay all costs of this proceeding.

AMENDED AND AFFIRMED.

      . The Louisiana Supreme Court has recently held that silicosis is a statutorily covered occupational disease. Schouest v. J. Ray McDermott and Co., Inc., 411 So.2d 1042, Supreme Ct. (1982).


author: LEAR, Judge.

text:
    Iris LUCIDO v. AETNA LIFE AND CASUALTY COMPANY.
    No. 14478.
    Court of Appeal of Louisiana, First Circuit.
    March 3, 1982.

      Velma O’Neal, and Robert J. Mack, Hammond, for plaintiff.
    Iddo Pittman, Jr., Hammond, for defendant.
    Before CHIASSON, EDWARDS and LEAR, JJ.
   LEAR, Judge.

Plaintiff, Iris Lucido, was employed by the D. H. Holmes Department Store in Hammond, Louisiana. She testified that, while at work on May 8, 1979, she had been replacing boxes of shirts on the shelves for approximately forty-five minutes. During this restocking, she stooped down and picked up a box containing approximately four shirts. Upon twisting around and putting the box on the shelf behind her, she immediately felt a “crick” in her neck. After informing her supervisor of this incident, he advised her to sit down and take it easy. After work that day plaintiff drove approximately fifteen miles to Amite, Louisiana, to visit a sick friend in the hospital. When leaving the hospital, plaintiff suffered a severe pain in her neck, and immediately went to the hospital emergency room and was treated by Dr. Thomas C. Evans. Dr. Evans found some muscle spasm and that plaintiff was emotionally upset, and he gave her medication (valium) and advised her to see her family physician.

From that time forward plaintiff continued to suffer pain and sought medical assistance. After nine months of conservative treatment by a number of doctors, plaintiff was examined by Dr. R. C. Llewellyn, a neurosurgeon, who found that plaintiff had suffered a ruptured intervertebral disc at the C5-C6 level. Dr. Llewellyn recommended the removal of this ruptured disc, which recommendation plaintiff accepted. Plaintiff underwent surgery by Dr. Llewellyn on February 27, 1980.

Plaintiff filed suit for Workmen’s Compensation benefits seeking total and permanent disability benefits. The trial judge rendered judgment in the plaintiff’s favor, concluding that she was totally and permanently disabled. We affirm.

The employee in a workmen’s compensation action must establish by a preponderance of the evidence that he received personal injury arising out of and in the course of his employment and that a causal relationship exists between his disability and that accident. Cadiere v. West Gibson Products Company, Inc., 364 So.2d 998 (La.1978); Parks v. Insurance Company of North America, 340 So.2d 276 (La.1976). However, the burden of proof shifts to the defendant once the plaintiff shows that the accident and injury are causally connected without an intervening cause. Haughton v. Fireman’s Fund American Insurance Company’s, 355 So.2d 927 (La.1978). Further, we must give a liberal interpretation, in favor of the employee, to the terms “accident” and “injury” in LSA-R.S. 23:1021(1) and (6). Lay v. Allied Chemical Corporation, 340 So.2d 1076 (La.App. 1st Cir. 1976).

The plaintiff’s testimony at trial concerning the incident which caused her to experience a “crick” in her neck is an incident within the statutory definition of the term “accident” as used in our workmen’s compensation statute. The existence of the injury is well documented in the record and is not in dispute. Thé plaintiff’s testimony that the accident caused the injury is supported by the expert testimony of Dr. Llewellyn, who testified that the type of disc injury suffered by plaintiff can be initiated by seemingly minor trauma, and he ascribed plaintiff’s ruptured disc to her work injury. In further support of her contention, the record indicates the plaintiff was in good health prior to the work incident on May 8th and that her symptoms commenced with her accident at work and continued to manifest themselves continuously thereafter.

The reviewing court must give great weight to the factual conclusions arrived at by the trier of fact, and reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed even though the appellate court may feel that its own evaluations and inferences are as reasonable. Cadiere v. West Gibson Products Company, Inc., supra; Aleman v. Lionel F. Favret Co., Inc., 349 So.2d 262 (La.1977); Canter v. Koehring Co., 283 So.2d 716 (La.1973). The reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared to the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between respective courts.” Canter v. Koehring Co., supra at 724.

With regard to plaintiff’s disability, Dr. Llewellyn stated that “I feel that she was disabled as to working in a regular job assignment outside her home, particularly one that would require lifting or using her arms at shoulder level or above her head.” He further stated that plaintiff, in the normal course of events, would probably continue to have some episodes of uncomfortableness when she exceeds her exertional tolerance.

Plaintiff herself testified that, after her operation, she was limited in her physical activities and had to be careful even in doing things around her house. She testified that she was unable to vacuum her whole house or work in her yard as she used to do. She also stated that her neck would bother her if she kept her arms above her head too long and that she was only able to work in the yard for fifteen to thirty minutes.

Our review of this record convinces us that the evidence, taken as a whole, supports the finding of the trial court that plaintiff was permanently disabled from working due to a ruptured disc injury, which she sustained while in the course or scope of her employment.

With regard to the penalties and attorney fees awarded, in its written reasons for judgment, the trial court stated that “counsel for plaintiff wrote four letters to defendant which were ignored.” All the doctors seen by Mrs. Lucido recognized the fact that she had a problem in the cervical region. However, the record indicates that the only compensation paid to plaintiff was in the amount of Two Hundred Eighty-seven and No/100 ($287.00) Dollars covering the period from June 18, 1979, to August 16, 1979. The record is otherwise devoid as to any evidence indicating why plaintiff’s compensation was discontinued. Defendant was aware that plaintiff was continuing to suffer from and to seek medical treatment for her neck injury. This is confirmed by a letter sent to defendant by plaintiff’s attorney, dated February 12, 1980, which included a letter from Dr. Llewellyn indicating that plaintiff was to enter the hospital for diagnosis and treatment of a suspected cervical disc. We find that the evidence supports the trial court’s conclusion that the insurer failed to act reasonably in terminating and/or refusing to reinstate compensation benefits.

In fixing attorney fees, the trial court noted the unusual amount of time required of plaintiff’s counsel in preparing this ease, including thirteen depositions, five of which were taken in New Orleans. Considering the travel, time and expense involved in preparation and trial of this case, we do not find that the trial court erred or abused its discretion in fixing the amount of attorney fees awarded in this case. Williams v. Liberty Mutual Insurance Company, 327 So.2d 462 (La.App. 3rd Cir. 1976).

We do find merit, however, in defendant’s contention that the trial court erred in failing to give it credit for compensation benefits which were paid to plaintiff. The record indicates, and plaintiff has admitted, that she received compensation benefits in the amount of Two Hundred Eighty-seven and No/100 ($287.00) Dollars, covering the period from June 18, 1979, to August 16, 1979. The trial court also noted that plaintiff returned to work for one week after her accident and defendant is also entitled to a credit for this time.

For the foregoing reasons, the judgment of the trial court is hereby amended to allow defendant a credit for compensation paid to plaintiff in the amount of Two Hundred Eighty-seven and No/100 ($287.00) Dollars, plus one week of compensation. The judgment of the trial court in all other respects is hereby affirmed. Defendant is to pay all costs, both at trial and on appeal.

AMENDED, AND AS AMENDED AFFIRMED.


text:
    Judy COLLINS v. MCDONALD’S CORPORATION.
    No. 14549.
    Court of Appeal of Louisiana, First Circuit.
    March 3, 1982.
    Charles R. Moore, Moore & Walters, Baton Rouge, for plaintiff & appellee.

      Vincent P. Pornias, Kantrow, Spaht, Weaver & Walter, Baton Rouge, for defendant & appellant.
    Before CHIASSON, EDWARDS and LEAR, JJ.
   LEAR, Judge.

Plaintiff, Judy Collins, filed this workmen’s compensation action seeking reinstatement of benefits for total and permanent disability. Plaintiff also asserted a right to penalties and attorney fees, due to allegedly arbitrary and capricious action of her employer, McDonald’s Corporation, in terminating her benefits. Defendant answered in the form of a general denial. However, shortly before the date set for trial, defendant brought plaintiff’s workmen’s compensation benefits up to date. The case went to trial solely on the issue of plaintiff’s entitlement to penalties and attorney’s fees. The trial court subsequently issued written reasons for judgment, finding that defendant had been arbitrary and capricious in terminating benefits, and, accordingly, awarded plaintiff $2,500.00 in attorney fees, together with statutory penalties. Defendant has taken the instant appeal from that judgment of the trial court.

On October 24, 1977, plaintiff sustained a work-related back injury while in the employ of defendant. As a result, defendant began paying workmen’s compensation benefits to plaintiff in the amount of $73.37 per week, and continued doing so until August 30, 1979.

Plaintiff’s injury consisted of a disc herniation at the L4-5 interspace of her spine. As a result, she underwent surgery in November of 1977, consisting of a laminecto-my of the disc at the L4r-5 interspace. The operation did not completely solve plaintiff’s back problems, and she underwent surgery for the removal of her disc at L3 — 4 level and a lumbosacral fusion in November of 1978.

During the period from the date of her injury until the date her benefits were terminated, plaintiff primarily consulted two physicians, Dr. J. Thomas Kilroy, an orthopedic specialist, and Dr. James A. Poche, a neurosurgeon. Defendant had continuously paid benefits during that period, based upon the reports of these two physicians. However, in May of 1979, Dr. Kilroy sent a report to defendant’s adjuster, Denis J. We-bre, indicating that he had examined plaintiff on May 17, 1979, and that: “At that time, I discharged her from this office with no restrictions and told her to return to Dr. James Poche, for a final evaluation.” Dr. Kilroy further indicated that he was leaving any final disability rating to Dr. Poche, since he felt that the lumbosacral fusion had been a success and that no restrictions of activity were warranted.

Mr. Webre interpreted the May report from Dr. Kilroy to mean that plaintiff could return to work with no disabilities. Mr. Webre then sought further clarification of plaintiff’s condition from Dr. Poche. On August 22, 1979, Dr. Poche sent a report to Mr. Webre, which indicated that he had discharged plaintiff from his care on November 13, 1978, and that at that time she was doing quite well. Dr. Poche further stated that plaintiff’s “final prognosis and residual disability would appear to have more bearing in regards [to] her lumbar fusion and this information can be obtained from Dr. Kilroy.”

Mr. Webre interpreted Dr. Kilroy’s report of May 24, 1979, to mean that plaintiff was able to return to work. Mr. Webre felt that Dr. Poche’s report of August 22, 1979, confirmed his interpretation. Hence, Mr. Webre sent plaintiff’s attorney a letter on September 4, 1979, notifying him that defendant was terminating workmen’s compensation benefits for plaintiff, effective August 30, 1979.

The sole issue on appeal is whether or not the trial court erred in awarding plaintiff penalties and attorney fees.

In its written reasons for judgment, the trial court found that “defendant terminated compensation without any just cause and that its termination was arbitrary under the circumstances entitling plaintiff to attorney fees and penalties.” This formulation of the trial court is consistent with the requirements set out in Guillory v. Travelers Insurance Company, 294 So.2d 215 (La.1974), i.e., that penalties and attorney fees should only be imposed in instances wherein the insurer discontinued workmen’s compensation payments arbitrarily, capriciously, or without probable cause. The lower court’s decision on penalties and attorney fees is essentially a question of fact, Cryer v. Gulf Insurance Company, 276 So.2d 889 (La.App. 1st Cir. 1973), and should not be reversed, unless a review of the entire record reveals that its finding was clearly wrong. Lucito v. Louisiana Hospital Service, Inc., 392 So.2d 700 (La.App. 3rd Cir., 1980); Gauthier v. Employers National Insurance Company, 316 So.2d 769 (La.App. 1st Cir. 1975), writ denied, 320 So.2d 911 (La.1975).

In the instant case, defendant terminated plaintiff’s benefits on the basis of the May 24th report of Dr. Kilroy and the August 22nd report of Dr. Poche. While Dr. Kilroy’s report indicated that he was placing no restrictions of activity upon plaintiff, he stated that he was deferring any assignment of disability to Dr. Poche. Dr. Poche’s August 22nd report was silent as to plaintiff’s ability to return to work and indicated that any disability should be determined by Dr. Kilroy. These reports were somewhat ambiguous and neither report indicated that plaintiff was not in fact disabled from returning to work. These reports were at best incomplete.

We find no manifest error in the trial court’s ruling that the insurer’s actions in terminating plaintiff’s compensation benefits constitute arbitrary, capricious or unreasonable behavior under this statute. Horn v. Vancouver Plywood Company, 322 So.2d 816 (La.App. 3rd Cir. 1975).

For the foregoing reason, the judgment of the trial court is hereby affirmed. All costs, both at trial and on appeal, are to be paid by McDonald’s Corporation, defendant-appellant.

AFFIRMED.


author: WATKINS, Judge.

text:
    Wayne SIMS v. MARCO EQUIPMENT RENTALS, INC.
    No. 14702.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1982.
    Robert H. Morrison, III, Denham Springs, for plaintiff.
    John P. Calmes, Jr., Baton Rouge, for defendant.
    Before COVINGTON, COLE and WATKINS, JJ.
   WATKINS, Judge.

This appeal was fixed on the February 1982 Docket and all attorneys of record were notified. At the time scheduled for argument, the appellant was not present or represented, nor had any brief been filed on behalf of appellant, nor had any motion been filed for continuance.

On authority of Rule VII, Section 5(b), this Court ex proprio motu, considers this appeal as abandoned; therefore, it is ordered that this appeal be dismissed with prejudice.

APPEAL DISMISSED.


author: SAMUEL, Judge. REDMANN, Judge,

text:
    Merlin FLAIR v. The BOARD OF COMMISSIONERS OF the ORLEANS LEVEE BOARD, The City of New Orleans Through the Department of Streets, T. L. James and Co., Inc. and Atlas Construction Co., Inc.
    No. 12350.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 9, 1982.
    Dillon & Cambre, Gerard M. Dillon, New Orleans, for defendants-appellees.
    Roger J. Larue, Jr., Metairie, for plaintiff-appellant.
    Before SAMUEL, REDMANN and GU-LOTTA, JJ.
   SAMUEL, Judge.

Plaintiff, Merlin Flair, filed suit against defendants, The Board of Commissioners of the Orleans Levee Board, the City of New Orleans Through the Department of Streets, T. L. James and Co., Inc., and Atlas Construction Co., Inc., seeking damages for injuries he sustained on September 23, 1976 when he drove his automobile off the end of the crown of a levee constructed along the south shore of Lake Pontchartrain by defendant, Atlas Construction Co., Inc. Defendants answered denying liability.

After a trial on the merits, judgment was rendered in favor of defendants, Atlas and T. L. James, and against plaintiff, dismissing his suit but assessing costs against those two defendants. (In the remainder of this opinion T. L. James and Atlas are referred to as “defendants”.)

Plaintiff has appealed and defendants have answered the appeal seeking reversal of the assessment of costs against them.

At the intersection of Interstate 10 and U. S. Highway 11 in eastern New Orleans, a shell service road begins and runs toward New Orleans in an east-west direction parallel to 1-10. Approximately one mile from its beginning, the service road crosses the top of an old levee, proceeds down its western side, and makes a 90° turn in a northward direction. From the turn the shell road proceeds northerly along the base of the old levee. Near the point where the old levee meets Lake Pontchartrain, a parking area exists on the eastern side. Near this point a new levee, the one constructed by Atlas, off which plaintiff drove, intersects with the old levee and the shell road ends. The new levee, called a hurricane protection levee, proceeds in an east-west direction along the shore of Lake Pontchartrain. The crown of the new levee has a clay surface and a width of 20 feet. Pursuant to a contract with the United States Corps of Engineers, Atlas was required to leave a large gap in the hurricane protection levee at the point of the accident to avoid building the levee across large gas transmission pipelines. The levee resumed on the other side of the space left for the pipelines. At the time of the accident in suit, construction of the levee had not been fully completed, and no remaining work had been done for a considerable period of time.

The elevation of the levee where plaintiff’s automobile went off was 15.0 feet, and the spot where plaintiff’s automobile struck the ground had an elevation of 3.4 feet. Plaintiff’s car traveled 55 feet in the air before striking the ground.

The trial judge felt that Atlas was guilty of negligence by allowing the gap in the levee to remain without adequate warning to oncoming vehicles or pedestrians. Testimony was adduced that wooden barricades originally were placed on the levee to prohibit trespassing by vehicles, but after finding the barricades broken on several occasions, Atlas decided to use dirt mounds as a hinderance to keep people and vehicles off the crown. From this evidence, the court drew the conclusion that Atlas was on notice the crown of the levee was used by vehicles and therefore held it had a duty to warn of the existence of the gap, which he characterized as a “trap”. The court cited as authority Shelton v. Aetna Casualty & Surety Company, La., 334 So.2d 406. We agree with this finding and holding. The court also found plaintiff guilty of contributory negligence.

The evidence concerning plaintiff’s contributory negligence basically emanates from his own testimony. He admitted knowledge of a sign, posted by the Orleans Levee Board, advising motorists not to ride on the levee. This sign was posted pursuant to R.S. 38:213 which provides in pertinent part:

“No person shall ride, drive, or haul upon the public levees except where, in the judgment of the levee commissioners of a district and the Department of Public Works, ample provision has been made to guard against any damage to which the levees may thereby be exposed from wear, tear, and abuse.” LSA-R.S. 38:213.

Plaintiff testified he was driving along the top of the levee looking for a “red fish hole”. In discussing this activity, he made the following significant statement:

“And I thought the red fish hole should be about this point, somewhere along in here. When I was looking to the lake at intervals, this particular time, evidentally, I looked too long. But when I came back, that’s when I went in the hole.”

The plaintiff also gave the following testimony:

“I was driving about 30-35 miles an hour. And I was looking towards the lake ... And at this particular time, I guess I looked toward the lake too long. When I looked back, I’ll give you an estimate, I, maybe from here to the wall, I will say 40 feet, 50 feet, say 50 feet, maybe 60 feet, I couldn’t believe my eyes and next thing, I think subconsciously, I jumped the brake.”

While plaintiff testified tire tracks were apparent on the top of the levee, he admitted it was not a roadway, public or otherwise. Consequently, and contrary to cases involving public highways, as a matter of law plaintiff was not entitled to presume the road ahead of him was safe for travel, and he was charged with the duty of guarding against unusual or unexpected obstructions.

In Desselle v. State, Department of Public Highways, La.App., 328 So.2d 389, at page 393, the court said:

“The driver of a motor vehicle, ... is under a never ceasing duty to maintain a proper lookout and to see what he reasonably should have seen. His failure to see that which he should have seen constitutes negligence.... ”

In Jackson v. Cook, 189 La. 860, 181 So. 195, at page 197, the Louisiana Supreme Court stated the proposition as follows:

“... the duty of those in charge of motor cars and engines to look ahead and observe never ceases; that what they can see they must see and in legal contemplation they do see; that their failure to see what they could have seen by the exercise of due diligence does not absolve them from liability.”

The testimony is somewhat conflicting regarding visibility of the levee on the opposite side of the gap. The indication is that it was of similar color to the top of the crown of the levee on which plaintiff’s vehicle was proceeding, and the testimony further indicates no water could be seen in the gap until one was only a few feet from the edge. From the testimony of the plaintiff and experts called for that purpose, it appears plaintiff was traveling at approximately 44 to 45 miles per hour at the time he ran off into the gap. The trial court found “... that the plaintiff could and should have seen the gap in the levee had he been keeping a proper lookout .... and that this negligence is also a proximate cause of the accident.”

We agree with the trial court’s holding. By plaintiff’s own admission, he was proceeding on a levee in violation of a Levee Board warning sign. He admitted dividing his attention alternately between the pathway ahead of him on top of the levee and the lake, where he sought to find a red fish hole. Had plaintiff been driving at a reasonable speed and looking in the direction in which he was proceeding, he would have seen the gap, or at least become aware of the dangerous situation, i.e., that the levee did not extend beyond the gap, in more than sufficient time to bring his vehicle to a halt. On the contrary, the evidence shows plaintiff drove off the edge of the levee at a relatively high speed under all the circumstances. As we have said, his car traveled 55 feet in the air before it struck the ground. Under these circumstances we conclude plaintiff did not follow the simple requirements of driving at a proper speed and of looking and seeing what he could and should have seen.

Plaintiff also argues defendants are liable to it under the theory of strict liability set forth in Civil Code Article 2317 as recognized by the Louisiana Supreme Court in the case of Loescher v. Parr.

In pertinent part, Civil Code Article 2317 provides:

“We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody.” LSA-C.C. Art. 2317.

The Loescher court set forth three elements of strict liability under Article 2317: (1) The thing which caused the injury was in the care or custody of the defendant; (2) the thing contained a vice or defect (i.e., the thing created an unreasonable risk of injury); and (3) the defect in the thing in fact caused the injury.

Assuming for the sake of argument the doctrine of strict liability applies to non-highway cases, we conclude it does not justify plaintiff’s recovery in this case. Here, there was no vice or defect in the thing. The levee was intentionally constructed with the gap to allow passage of the gas transmission lines at the specific instruction of the United States Corps of Engineers. The gap was in the levee for a legitimate public purpose, and any danger it may have presented was patent to anyone exercising reasonable care under the circumstances. Under Loescher the defenses to strict liability are victim fault, third party fault, and an irresistible force. We are not at all certain as to what is meant by “victim fault” or as to what amount of such fault is sufficient to exonerate a defendant in a strict liability situation. However, in the recent case of Dorry v. Lafleur, La., 399 So.2d 559, at pages 560 and 561, the Supreme Court made the following pronouncement:

“Where a plaintiff’s negligence contributes to his own damage, there is no reason to ignore his fault in every case simply because the defendant’s liability is based on some legal fault other than negligence. Quite to the contrary, the plaintiff’s negligence should carry more, not less, consequence when the defendant is strictly liable, but less culpable than the plaintiff.
The idea that contributory negligence is not a defense in a strict liability case was borrowed from the common law.
Under what circumstances a plaintiff’s contributory negligence should bar his recovery in a strict liability case should be developed on a case by case basis.”

The factual basis for our conclusion that plaintiff was guilty of contributory negligence is set forth above. His conduct demonstrates such a disregard for his own safety that, even if a defect existed in the levee, and here we find no defect, it cannot be said the defect caused his injury. On the contrary, plaintiff caused his own injury by his reckless and wanton act of driving on the crown of a levee, without maintaining a sufficient lookout, at a speed inconsistent with his perilous position. We conclude these facts constitute the- “victim fault” referred to in Loescher v. Parr, supra.

The final issue, raised by defendants’ answer to the appeal, is whether the trial court committed error in casting the successful defendants for costs. In the recent case of Bowman v. New Orleans Public Service Inc., La.App., 410 So.2d 270, we made the following pronouncement:

“The basic rule is that all costs — both the prevailing side’s and his or her own— are to be paid by the party cast, although the court may make an ‘equitable’ different provision for costs.”

We find no equitable basis for changing the basic rule in this case, and therefore conclude the judgment must be amended by casting plaintiff for all costs in this proceeding.

For the reasons assigned, the judgment appealed from is amended so as to cast the plaintiff, Merlin Flair, for all costs in both courts. As thus amended, and in all other respects, the judgment is affirmed.

AMENDED AND AFFIRMED.

REDMANN, J., concurs with written reasons.

REDMANN, Judge,

concurring.

Defendants were in no way at fault. They owed plaintiff no duty and therefore breached no duty to protect him against injury from driving 44 m. p. h. on a non-road while looking elsewhere than where he was going.

      . Insofar as is shown by the record before us, all named defendants, including T. L. James and excepting only Atlas, appear to have been dismissed by stipulation. However, T. L. James makes no complaint regarding its apparent dismissal and subsequent inclusion in judgment.

      . The court rejected any distinction between a trespasser as opposed to a licensee or invitee, based on Cates v. Beauregard Electric Cooperative, Inc., La., 328 So.2d 367, and Bourg v. Redden, La.App., 351 So.2d 1300.

      . See Parker v. Continental Ins. Co., La.App., 341 So.2d 593.

      . Photographs introduced into evidence also support this conclusion.

      . The record also contains evidence that the slope of the levee from its crown into the gap was sufficiently shallow that an automobile traveling 20 m. p. h. could have negotiated the slope without mishap. This evidence strongly indicates that under the circumstances plaintiff was traveling much too fast.

      . La., 324 So.2d 441.

      . The early case of Langlois v. Allied Chemical Corporation, 258 La. 1067, 249 So.2d 133, indicates contributory negligence is not a defense to strict liability. A similar conclusion was reached by Professor Ferdinand Stone in 12 Civil Law Treatise: Tort Doctrine, § 439, p. 566.

      . No. 12,572 of the docket of this court, handed down January 22, 1982, and as yet unreported.


author: SAMUEL, Judge.

text:
    BARBATO, SUPER AND ROBINSON, INC. v. John T. COOPER.
    No. 12979.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 9, 1982.
    Trudy H. Oppenheim, New Orleans, for plaintiff-defendant in reconvention-appel-lee.
    Cooper & Hingle, John T. Cooper, New Orleans, for defendant-plaintiff in recon-vention-appellant.
   ON RULE TO SHOW CAUSE

Before SAMUEL, BOUTALL and GARRISON, JJ.

SAMUEL, Judge.

This matter is before us on our ex proprio motu rule to show cause why this appeal should not be dismissed.

The suit (on an open account for $514.50, interest and attorney fees) was filed in the First City Court for the City of New Orleans on June 13, 1978. On November 19, 1978, following trial, there was judgment in favor of plaintiff as prayed. On November 23, 1978 defendant appealed suspensively to the Civil District Court for the Parish of Orleans, the proper appellate court at that time under the provisions of Code of Civil Procedure Article 5001. However, such appeals are no longer taken to the district courts. Article 5001 was changed by Act 46 of 1979 so that, effective January 1, 1980, appeals from city and parish court judgments “shall be taken” to the courts of appeal.

Defendant’s suspensive appeal, timely taken to the district court in 1978, was heard by that court on January 31,1980 and on that date judgment was rendered affirming the judgment of the city court. Defendant then took this suspensive appeal to this court.

Appellant contends that since the matter was heard by the district court after the effective date of the change in C.C.P. Art. 5001, his appeal to this court is proper. We do not agree.

The district court was the only appellate authority to which the 1978 appeal could have been taken and that court had jurisdiction to hear the same. Act 46 of 1979 has reference only to the court to which an appeal “shall be taken”; it does not deprive the district court of jurisdiction to hear the appeal which was taken properly and timely to that court; and the appeal to the district court was the only one appellant was entitled to take. Act 46 of 1979 does not give him an additional appeal. He has had his appeal and this court is without jurisdiction to hear another appeal from the conclusion reached by the district court. Nor, as no appeal lies to this court, do we have supervisory jurisdiction.

For the reasons assigned, the appeal is dismissed.

APPEAL DISMISSED.

      . See Caire v. Stassi, La., 379 So.2d 1056; Kao v. McKenzie, La.App., 385 So.2d 423; Crain v. Dearmond’s, La.App., 369 So.2d 1171.

      . Article 5, Section 10, of the 1974 Louisiana Constitution.


author: REDMANN, Judge.

text:
    Andrew FIORELLA v. SEWERAGE & WATER BOARD.
    No. 12634.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 9, 1982.
    Louis L. Robein, Jr., Barker, Boudreaux, Lamy, Gardner & Foley, New Orleans, for plaintiff-appellant.

      John A. Gordon, Sp. Counsel, Vincent T. LoCoco, Gen. Counsel, Gerard M. Victor, Senior Counsel, Sewerage and Water Bd. of New Orleans, New Orleans, for defendant-appellee.
    Before REDMANN, GULOTTA and KLEES, JJ.
   REDMANN, Judge.

The employee concedes he was “unable” to do his work and that suffices to affirm his discharge under C.S.C.Rule IX. (There is no evidence to suggest he was “unwilling” and the Commission’s finding that he “cannot” continue in his position means only that it is impossible for him, i.e., that he is unable, to do so.)

Art. 1 § 3 protects a public employee only against arbitrary or unreasonable discharge because of physical condition. It is not arbitrary or unreasonable to discharge an employee because his physical condition prevents him from performing the duties of his position, and that was the basis for this employee’s discharge.

The employee also argues that the employer did not reasonably attempt to accommodate him, presumably by assigning other duties or another position. In fact the employer did previously demote him to a less demanding position — and that demotion was the subject of an earlier appeal to the Commission. The problem is that the employee’s physical condition makes him unable to do physical labor, and that has been the character of all his employment. The legal basis for the employee’s argument on this point is not wholly clear to us, but the conceded factual basis of his inability to do the work justifies his termination.

The employee also argues that the Commission failed to express a factual finding (as we understand the argument) so as not to affect the employee’s claim for a pension (a claim not within the jurisdiction of the Commission). We believe this argument answered by our ruling that the Commission did find the fact of inability to do the work (rather than unwillingness).

Finally we note the employee had argued that the employer had refused to allow him to exhaust his accrued annual leave time. The employer’s letter of dismissal authorized payment to him “for any annual leave which you may have accrued,” so we assume that the argument is that he should have been carried on the payroll as on annual leave until exhausted, rather than simply have been paid his leave. This point is not separately argued in brief, but we mention it because we were initially under the misapprehension that accrued leave had been forfeited. On the point as we now understand it, we cannot say that the Commission erred.

Affirmed.


author: GULOTTA, Judge.

text:
    Suzanne Fowler, Wife of/and Robert Hugh MATTHEWS v. Henry J. CALAMARI.
    No. 12625.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 9, 1982.

      R. Collins Vallee, New Orleans, for plaintiffs-appellees.
    Reuter & Reuter, Normand F. Pizza, New Orleans, for defendant-appellant.
    Before REDMANN, GULOTTA and KLEES, JJ.
   GULOTTA, Judge.

Appealing from a $1,500.00 reduction of a $24,000.00 purchase price on a residence for roof defects, defendant-seller contends plaintiff-purchasers failed to make an adequate pre-sale, simple inspection that would have disclosed the defect. We agree. Accordingly, we reverse.

The trial judge concluded that the roof defects existed at the time of purchase and were unknown to plaintiffs, but he made no finding regarding the discoverability of the defect through simple inspection of the premises.

Under LSA-C.C.Art. 2521, apparent defects such as the buyer might have discovered by simple inspection are not considered redhibitory vices. In Pursell v. Kelly, 244 La. 323, 152 So.2d 36 (1963), the Louisiana Supreme Court held that the term “inspection” as used in this Codal article is not a mere casual observation but “an examination of the article by the vendee with a view of ascertaining its soundness.” As pointed out in Pursell, the proper test is whether a reasonably prudent buyer would have discovered the vice. This is not to require the buyer, however, to examine the inner or hidden parts of the object of the sale for the purpose of ascertaining the existence of latent defects. See also, Kolwe v. Owens, 357 So.2d 1333 (La.App. 4th Cir. 1978).

In our case, although plaintiffs testified that they had found no evidence of water marks on the walls and ceilings in the house before the sale and were told there were no leaks upon inquiry of a tenant who lived in the house, it is apparent that they inspected only a portion of the interior. They chose to make an offer to purchase the residence with plans for renovating it without a prior inspection of the entire premises.

Plaintiffs’ renovation contractor observed during a simple inspection of the residence shortly after the sale that there were water stains on the ceilings and rotten plaster inside the house indicative of roof leakage at some time. Later inspection of the roof surface indicated that the cause of the leaks was the application of several layers of soft roofing over gaps in sheathing that was originally constructed for hard shingles. According to this witness, nails from the top layers of shingles were “poking” through gaps in the sheathing and required replacement of the entire roof.

It is clear that plaintiffs made only a cursory examination of a portion of the premises and failed to discern stains in the ceiling and plaster that were obvious to their contractor on his simple inspection.

This conclusion of the inadequacy of plaintiffs’ inspection is supported by the real estate agent’s testimony that plaintiffs inspected the interior of only one side of the double house. Although plaintiffs did not expressly testify they had inspected only one side, it was incumbent on them to rebut the agent’s testimony if indeed they examined the entire interior of the residence.

We conclude plaintiffs failed to make a simple inspection that would have disclosed the defect and are not entitled to recovery.

Accordingly, the judgment is reversed and set aside. Plaintiffs suit is dismissed. Costs to be paid by plaintiffs.

REVERSED.

      . LSA-C.C. Art. 2521 provides as follows:
      “Art. 2521. Apparent defects discoverable by buyer
      Apparent defects, that is, such as the buyer might have discovered by simple inspection, are not among the number of redhibitory vices.”


text:
    Mrs. Catherine E. HURST, et al. v. Audrey E. MASSEY, et al.
    No. 12738.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 9, 1982.
    McCann, McCann, Schroeder & Mirabile, John J. McCann, New Orleans, for plaintiffs-appellants.
    Walker & Bordelon, Alvin J. Bordelon, Jr., New Orleans, for defendants-appellees.
    Before GULOTTA, KLEES and AUGUSTINE, JJ.
   GULOTTA, Judge.

In this wrongful death action, plaintiffs seek recovery against corporate executive officers based on their “intentional act”, pursuant to LSA-R.S. 23:1032 as amended by Acts of the Louisiana Legislature 1976, No. 147.

The trial judge maintained exceptions of no cause of action and dismissed plaintiffs’ suit. Plaintiffs appeal. We reverse and remand.

This suit arises out of a labor dispute in St. Bernard Parish where acts of violence occurred during a strike at the Tenneco Oil Company. John A. Hurst, Jr., a maintenance supervisor for Tenneco was shot and killed when violence erupted at the defendant-company site. The pertinent allegations of the original petition upon which plaintiffs base their claim that the death resulted from defendants’ “intentional act” are as follows:

VI.
On January 18, 1980, in the midst of this tense situation, John A. Hurst, Jr., husband of your first named petitioner and father of your 2nd, 3rd, and 4th named petitioners was ordered, directed, permitted and allowed to be posted at the Foster-Wheeler gates (Gate # 6) to set up a barricade and, in effect act and be a security guard for Tenneco, despite the fact that he was a maintenance supervisor for Tenneco and known to it and its executive officers to be totally untrained for these highly delicate duties in such a precarious position.
VII ...
VIII ...
IX.
The liability of Tenneco Oil Company, Tenneco, Inc. and its executive officers, and more particularly Albert P. Caldwell, Jr., William E. Heck and Jerry Singletary attaches as a result of sending, and permitting to be sent, a maintenance man, totally untrained, to be exposed in the proximate area of danger when they knew the extreme probability of violence that could, and did, result in severe injury and death to one of its own employees. Further liability attaches for a failure to properly protect him, and for a failure to order trained security personnel service companies to man the gates. All of the above constitute intentional acts within the framework of our laws.”

In a “First Supplemental and Amended Petition”, the petition was supplemented as follows:

“By adding to Paragraph IX of the original petition filed herein the following: Said defendants’ acts also render them liable because the injurious consequences of their acts were substantially certain to follow said acts; and thus said defendants’ acts are treated by the law as intentional.”

In a “Second Supplemental and Amended Petition” the petition was further supplemented as follows:

“By adding to Paragraph IX of the original petition the following:
Plaintiffs allege that said defendants believed, knew or should have known that said injurious consequences and physical results of their actions complained of herein were certain or substantially certain to follow from their acts and conduct, yet defendants still went ahead.”

In the landmark case of Bazley v. Tortorich, 397 So.2d 475 (La.1981) the Louisiana Supreme Court in defining “intentional act” as incorporated in LSA-R.S. 23:1032 as amended, supra, stated:

“The meaning of intent in this context is that the defendant either desired to. bring about the physical result of his act or believed they were substantially certain to follow from what he did.”

The Supreme Court went on to say that:

“Intent is not, however limited to consequences which are desired. If the actor knows that the consequences are certain, or substantially certain, to result from his act, and still goes ahead, he is treated by the law as if he has in fact desired to produce the result. Restatement (Second) of Torts, Section 8A Comment; Prosser, supra, § 8.”

See also, Mayer v. Blue Cross Ins. Co., Inc., 402 So.2d 273 (La.App. 4th Cir. 1981); Woolridge v. Mouledoux, 398 So.2d 1272 (La. App. 4th Cir. 1981).

The petitions in the instant case do not allege that defendants “desired” to bring about the physical results. Therefore, if plaintiffs petitions assert a cause of action here, it must be based on a claim that defendants knew or believed that the consequences resulting from their acts are certain or substantially certain to follow.

Applying the language of the original petition together with the supplemental and amended petitions and taking these allegations as true, we conclude plaintiffs state a cause of action. In the original petition, plaintiffs assert that the decedent, totally untrained, “was exposed to danger by defendants, when they knew the extreme probability of violence that could, and did, result in severe injury and death. ...” In the First Supplemental and Amended Petition they state that “injurious consequences of their [defendant’s] acts were substantially certain to follow said acts; ... ”, and in the Second Supplemental and Amended Petition they allege that defendants “... believed, knew .. . that said injurious consequences and physical results of their actions . .. were certain or substantially certain to follow....”

Although the petition does not state that defendants ordered the decedent to set up barricades when they knew or believed that the consequences of their act were certain or substantially certain to cause John Hurst’s death or serious injury, nonetheless the allegations when read together do assert the Bazley definition of “intentional act”, albeit in perhaps different language carrying the same meaning.

We find no merit to defendants’ argument that plaintiffs’ use of the phrase “or should have known” in the Second Supplemental and Amended Petition claiming defendants’ knowledge of the injurious consequences of their acts goes beyond alleging an intentional act. Although this phrase is associated with negligence pleadings, in the context of the original and amended petitions in our case, it is “overpleading” or superfluity. Furthermore, because the amended petition alleges that defendants “believed, knew” that said injurious consequences of their actions were certain or substantially certain to follow, we conclude the Bazley test has been satisfied.

We likewise reject defendants’ contention that plaintiffs’ allegations are in the nature of conclusions of law. Allegations of the commission of an intentional act necessarily require assertions dealing with one’s frame of mind and thereby involve knowledge and belief that go beyond factual allegations. These assertions of defendants’ frame of mind require conclusions by the pleader of knowledge or belief on the part of defendants that bring their actions within the “intentional act” definition. Whether these allegations of guilty knowledge or belief may or may not be proved is not our concern here when considering whether the petition states a cause of action.

Accordingly, when we consider the allegations contained within the four corners of the original, first and second supplemental and amended petitions, we are led to conclude that plaintiffs state a cause of action against the executive officers. Having so concluded, we reverse the judgment of the trial court. The matter is remanded for further proceedings consistent herewith. Costs to await the final outcome of the litigation.

REVERSED AND REMANDED.

      . LSA-R.S. 23:1032 provides as follows:
      “§ 1032. Exclusiveness of rights and remedies; employer’s liability to prosecution under other laws.
      The rights and remedies herein granted to an employee or his dependent on account of an injury, or compensable sickness or disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights and remedies of such employee, his personal representatives, dependents, or relations, against his employer, or any principal or any officer, director, stockholder, partner or employee of such employer or principal, for said injury, or compensable sickness or disease. For purposes of this Section, the word ‘principal’ shall be defined as any person who undertakes to execute any work which is a part of his trade, business or occupation in which he was engaged at the time of the injury, or which he had contracted to perform and contracts with any person for the execution thereof.
      Nothing in this Chapter shall affect the liability of the employer, or any officer, director, stockholder, partner or employee of such employer or principal to a fine or penalty under any other statute or the liability, civil or criminal, resulting from an intentional act.
      The immunity from civil liability provided by this Section shall not extend to: 1) any officer, director, stockholder, partner or employee of such employer or principal who is not engaged at the time of the injury in the normal course and scope of his employment; and 2) to the liability of any partner in a partnership which has been formed for the purpose of evading any of the provisions of this Section.”

      . See Haskins v. Clary, 346 So.2d 193 (La.1977); Pence v. Ketchum, 326 So.2d 831 (La.1976).


text:
    Clem T. SEHRT, Mrs. Gretchen Sehrt Burton, Succession of Clem H. Sehrt, and Edward J. Boyle, Sr. v. TASTEE DONUTS, INC.
    No. 12740.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 9, 1982.
    Virgil M. Wheeler, Jr., Gerald E. Meunier, Kierr, Gainsburgh, Benjamin, Fallon & Lewis, New Orleans, Antonio E. Papale, Jr., Hailey, McNamara, McNamara & Hall, Me-tairie, for plaintiffs-appellees.
    Lanny R. Zatzkis, Lynne W. Wasserman, New Orleans, for defendant-appellant Gilbert E. Copeland, Sr.
    Before GULOTTA, KLEES and AUGUSTINE, JJ.

      . LSA-C.C.P. Art. 1091 provides:
      “Art. 1091. Third person may intervene A third person having an interest therein may intervene in a pending action to enforce a right related to or connected with the object of the pending action against one or more of the parties thereto by:
      (1) Joining with plaintiff in demanding the same or similar relief against the defendant;
      (2) Uniting with defendant in resisting the plaintiff’s demand; or
      (3) Opposing both plaintiff and defendant.”

   GULOTTA, Judge.

Sub-lessee-intervenor, Gilbert Copeland, appeals from a judgment in favor of plaintiff-lessors terminating a commercial lease and evicting the lessee for failure to obtain insurance and to furnish certificates of insurance timely as required by the lease. Copeland claims the required insurance was obtained and that the lessee’s failure to furnish a certificate of insurance was not a “material” breach entitling lessors to dissolution of the lease. We disagree. Accordingly, we affirm.

Under the November 4, 1970 lease on 7249-7251 West End Boulevard, Tastee Donuts, Inc., lessee, was obligated to maintain liability and property insurance and to deliver to lessor “certificates” of coverage. The lease further provided that lessors were entitled to cancellation of the lease where a violation occurred and lessee failed to correct it within 30 days after written notice.

Tastee subsequently sub-leased 7251 West End Blvd. to H. Richard Runnels, III, who operated a Tastee Donut franchise, Buddy’s Tastee No. 1, Inc. (Buddy’s). Tastee also sub-leased 7249 West End Blvd. to Copeland.

When the lessors sued to evict Tastee for non-compliance with the insurance provisions of the lease, the trial judge allowed the sub-lessees to intervene. From the judgment terminating the lease and dismissing the interventions, only Copeland has appealed. Tastee and Buddy’s have not appealed.

MOTION TO DISMISS

Plaintiffs have filed a motion to dismiss Copeland’s appeal on the ground that the matter is now moot because Tastee has not appealed and Copeland’s rights as a sub-lessee, which are derived from the original lessee, have ceased to exist. In response to the motion, Copeland claims that under LSA-C.C.P. Art. 1091 , he, as a sub-lessee, has a justiciable right related to the subject matter of the suit and the appeal is not moot as to his rights. Because we affirm the judgment of the trial court terminating the lease, we conclude that no purpose is served in considering the motion to dismiss.

MERITS

In written “FINDINGS OF FACT AND REASONS FOR JUDGMENT”, the trial judge stated:

“The lessee failed to furnish the certificates of insurance timely as required by the lease and further failed to furnish such certificates within the thirty day grace period following notice given in accordance with the lease terms. The lessee’s claim herein that even though certificates of insurance were not timely furnished lessors, the required insurance as to 7249 West End Boulevard was in force timely is not supported by credible evidence. The witness Arceri’s testimony as to that matter is not believable. I find that the required insurance, at all material times, was not in effect and lessors were without the protection to which they were entitled. Thus lessee was guilty of a major, material and important violation of the lease terms and lessors are entitled to cancellation of the lease and possession of their property.”

The record supports these conclusions. Commencing on April 6, 1977, and thereafter, the lessee failed to comply with the lessors’ written requests to obtain the required coverage and furnish certificates of insurance. Patrick Drury, Copeland’s insurance agent, testified that coverage on the leased property was cancelled on May 28, 1980.

Lynn Rose Mayeux, service office manager for Security Insurance Company, testified that in late December, 1979 or early January, 1980, an insurance agent, Frank Arceri, had discussed insurance coverage on the West End Blvd. property. Although an application for coverage with Security was sent by Mayeux to Arceri on January 23, 1980, it was not until June 24, 1980 that Arceri’s office requested a policy on the property, retroactive to April 13, 1980. Mayeux agreed to issue the retroactively dated policy upon assurances that no loss had occurred in the interim. The July 11, 1980 application was reviewed by Mayeux on July 14, and the predated policy was mailed on August 15, 1980.

Arceri testified that Copeland had called him in early April, 1980 requesting coverage on the property. According to Arceri, he orally bound coverage but issued no written binder. No notice was given by Arceri to Mayeux that an oral binder had been made.

Mayeux stated that Arceri has authority to bind coverage on behalf of Security Insurance, but is required to submit written notification within three days after orally binding coverage. According to Mayeux, because Arceri did not meet the three day written notification requirement to bind the policies, the company would not have been obligated to bind a claim occurring, for example, on June 1, 1980.

The evidence considered, we conclude, as did the trial judge, that no insurance coverage, as required by the lease, was provided by lessee between May 28, 1980 and August 15, 1980. The retroactive dating of the “effective” date of the policy cannot cure the obvious lapse in coverage. As pointed out by the trial judge, this lapse in coverage was a “major, material and important violation of the lease terms” entitling lessors to terminate the lease. See Pledge Dev. Corp. v. Big Kahuna Enterprises, 376 So.2d 600 (La.App. 4th Cir. 1979).

We likewise are not persuaded by Copeland’s contention that the trial judge erred in permitting parol evidence to vary the insurance contract by showing a different effective date from that set forth on the face of the policy. The evidence was not offered to vary or contradict the terms of the policy but to explain the ambiguity of the retroactively April 13, 1980 effective date of the August, 1980 policy. Furthermore, it was Copeland who called Mayeux to testify.

Finally, we find no merit to plaintiffs’ claim for damages and attorney’s fees for frivolous appeal under LSA-C.C.P. Art. 2164. Although we affirm the judgment appealed from, we cannot say the issues raised by Copeland are not serious. We, therefore, decline to award damages for frivolous appeal. See Parker v. Interstate Life & Accident Insurance Co., 248 La. 449, 179 So.2d 634 (La.1965); Neustadter v. Bridges, 406 So.2d 738 (La.App. 4th Cir. 1981). Accordingly, the judgment is affirmed.

AFFIRMED.


author: BOUTALL, Judge.

text:
    Wilbert L. ROTH v. B & L ENTERPRISES, INC., and F. Robert Porter.
    No. 12326.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 9, 1982.
    Writ Granted May 7,1982.

      Garland R. Rolling, Metairie, for Wilbert L. Roth, plaintiff-appellant.
    Gordon K. Konrad, Metairie, for B & L Enterprises, Inc. & F. Robert Porter, def endants-appellees.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   BOUTALL, Judge.

A purchaser of real estate sues his vendor in warranty based upon an uncancelled lien outstanding against the property. Cancellation was to have been made by the notary public who passed the act of sale, but who instead absconded with the money to pay the lien. From a judgment dismissing his suit against the vendor, the purchaser appeals.

Most of the facts are not in contest. On January 6, 1977, the plaintiff, Wilbert B. Roth, signed an agreement to purchase a piece of real estate located in Rural Park Subdivision, Jefferson Parish, from the defendant, B & L Enterprises, Inc., for a cash price of $12,000.00. The agreement provided that the act of sale was to be passed before the purchaser’s notary public, and Roth appointed F. Robert Porter, an attorney at law and notary public. At the time of the sale the purchaser delivered to the notary public his check for $12,000.00 payable to Porter. There is a dispute between the parties as to who requested the check to be made in that fashion and the extent of Roth’s knowledge of an existing lien on the property, but it is uncontested that some $5,200.00 of those proceeds were to be used to pay off the outstanding lien on the property. Instead of cancelling the lien, the notary public kept the money and the lien remains outstanding, causing the purchaser to pay it off in installments.

It is Roth’s contention that the property was purchased under full warranty and that the vendor is responsible to cancel the lien and reimburse the purchaser for the payments made. He filed suit against both the vendor, B & L Enterprises, Inc., and F. Robert Porter, the notary public, but the notary public wasn’t able to be found and served. The present proceeding is only against the vendor.

Our evaluation of the evidence is somewhat hampered by the absence of the notary public and the lack of a mortgage certificate attached to the stipulated act of sale. The testimony in this case consists of the purchaser, the president of the vendor, and an attorney at law expert in the area of passing real estate transactions in the State of Louisiana. Additionally, there was stipulated into evidence the purchase agreement, the act of sale and the check issued in payment of the price.

The purchaser contends he is entitled to a judgment because he purchased the property with full warranty and had no knowledge of any outstanding liens. He testified that he made out and delivered his check for the purchase price to Porter at the request of the vendor’s president, Melvin Berthelot. In turn he expected that Porter would give him a bill of sale and a receipt. He testified that he knew of no liens or encumbrances against the property and expected to receive the property free and clear of any encumbrances. On the basis of this testimony and the documents stipulated in evidence, he makes out a prima facie case that would entitle him to a release in warranty.

The vendor, through its president Melvin Berthelot, offered testimony that it, the vendor, knew there was a lien on this property and that the notary public was also aware of it and was to cancel the lien. Berthelot testified that it was the notary who requested that the check be made payable to himself in order that he could deduct the cost of the lien cancellation and give the net proceeds to the vendor. However, the notary did not cancel the lien but instead kept the money, and turned over to the vendor only the net proceeds.

It is apparent that there are two innocent parties to this transaction and that one of them must suffer the consequences of the notary public’s theft and failure to cancel the lien. The trial judge resolved this question by finding that the notary was chosen by Roth and that he chose an unreliable and perhaps dishonest notary. He concluded that Roth was bound by the notary’s activity and not entitled to any relief. We agree. Although Roth purchased with warranty, it was his employment of the dishonest notary that caused his loss to occur.

The trial judge made no finding of fact as to the extent of knowledge of the lien by Roth , but it makes little difference whether he knew, because he should have known. One of the statutory obligations of a notary public in passing an act of sale of real estate is the production of a mortgage and privilege certificate required by Civil Code Article 3364:

“Every notary who shall pass an act of sale, mortgage or donation of an immovable, shall be bound to obtain from the office of mortgages of the place where the immovable is situated, a certificate declaring the privileges or mortgages which may be inscribed on the object of the contract, and to mention them in his act, under penalty of damages towards the party who may suffer by his neglect in that respect.

We are not aware if the certificates were actually ordered but the act declares that the certificate is annexed hereto and that it does not appear that the property is subject to any encumbrances whatever. Accordingly, any lack of knowledge of existence of the lien is due to the violation of the statutory obligation of the notary public to the purchaser by whom he was appointed.

This position is supported by the testimony of the expert, Mr. Ferdinand Lob, attorney at law, who testified the usual and customary situation, in a case as this where liens exist in an amount less than the purchase price, is that the notary withholds a sufficient amount of money to pay off any liens or mortgages that show up against the property on the title examination or mortgage certificate. The practice is for the purchaser’s notary to receive the money from the purchaser and then to disburse the money to pay off whatever debt might be owed that would affect the property out of the proceeds of the sale. The balance of the proceeds is then paid by the notary to the vendor.

Under the facts of this case, we can ascribe no fault to the vendor for the failure to cancel the inscription of lien against this property and accordingly, we do not feel compelled to hold him in warranty.

For the reasons assigned, the judgment is affirmed.

AFFIRMED.

      . Relevant to this issue would be the production of the missing mortgage certificate supposed to be attached to the act of sale and the notary public’s reconciliation of account, which Roth testified he was given but which he left at home.

      . Article 3364 was repealed by Act No. 651 of 1978, but the events herein took place in 1977.


text:
    Stanley GUIDRY v. Milton HOOGVLIETS v. STAN WEBER & ASSOCIATES, et al.
    No. 12351.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 9, 1982.

      Daniel E. Becnel, Jr., Reserve, for Milton Hoogvliets, defendant-appellant.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   BOUTALL, Judge.

This is an appeal from a judgment maintaining the peremptory exception of prescription of one year against a third party petition.

Stanley Guidry brought a suit for breach of contract against Milton Hoogvliets, seeking to recover as liquidated damages the sum of $4300.00 representing the deposit made by Hoogvliets in an agreement to purchase real estate from Guidry. Ho-ogvliets answered denying liability for breach of contract and filed a third party petition against the real estate agent handling the transaction, Stan Weber & Associates, Inc., and its employee, Lynn Schroeder. The third party defendants responded with the peremptory exception of prescription based upon the one year prescription of Civil Code Article 3536, contending that this is a simple action ex delicto and is untimely filed. When the matter came for hearing there was no appearance by the attorney for third party plaintiff, and after argument and reference to the pleadings and the contract of sale, the court rendered judgment maintaining the exception and noted the non-appearance of third party plaintiff.

The allegations of the third party petition are to the effect that Hoogvliets had entered into a contract to purchase a home from C. & F. Builders, Inc., conditioned upon a mortgage loan of $50,200.00. He felt that that loan was going to be rejected because he did not have sufficient income to pay such a large mortgage and became aware of a smaller house in the neighborhood for a lesser amount of money. Believing that he could obtain a loan for a lesser amount, he applied to Stan Weber and Associates, Inc., the agent for the sale of that house, owned by Guidry, and was advised by Lynn Schroeder, Weber’s employee, that he could make an offer to purchase which would become effective only if the sale with the first house fell through. Unknown to him Schroeder actually submitted the offer on the second house and it was accepted. The petition alleges that Hoogvliets had to employ an attorney to represent him in this suit for breach of that contract and asks for judgment against Weber and Schroeder for attorney’s fees and costs as well as the $4,300.00 claimed by Guidry.

The original suit is of course a suit on the contract to buy real estate and all of these parties are participants and signatory to the contract. The record shows that the $4,300.00 deposit was comprised of $500.00 cash and a $3800.00 demand note, which had been held by Weber until after the judgment on the exception was rendered, at which time he deposited those items into the registry of the court by way of intervention. Hoogvliets’ third party demand against Weber is allowable under both C.C.P. Article 1031 and C.C.P. Article 1111. By the terms of the contract, Weber is obliged to turn over the deposit to the party entitled to it. To this extent, the suit against him is governed solely by the provisions of the contract.

Beyond that issue the suit is one for indemnification. The contract provides for an award of attorney’s fees and costs to any party who is entitled to assert his rights thereunder. All that the third party petition asks is attorney’s fees, costs, and if judgment is rendered against Hoogvliets forfeiting the deposit, indemnification of that judgment by Weber to Hoogvliets. Appellees in their exception referred to the case Kearney v. Maloney, 296 So.2d 865 (La.App. 4th Cir. 1974) on limited rehearing. However, the facts in that case are readily distinguishable from the facts here. That case was based upon the fraudulent act of failing to disclose the true condition of the property. Our case is based upon the premise that a conditional offer was made and the condition does not appear as a portion of the written agreement. We do not discuss this in detail, because recovery of course is a matter for the merits. The situation in the present case is one of enforcement of the contract terms, and alternatively indemnity. Prescription does not begin to run on claims for indemnification until the party seeking same is itself cast in judgment. Blue Streak Enterprises, Inc., v. Gulf Coast Marine, Inc., et al., 370 So.2d 633 (La.App. 4th Cir. 1979) and the cases cited therein.

For the reasons assigned, the judgment appealed is reversed, and there is judgment in favor of third party plaintiff and against third party defendants dismissing their exception of prescription. Costs of these proceedings to await final outcome of the litigation.

REVERSED.


text:
    Earl NICHOLAS v. Thomas JENKINS, Hallaway Brothers, Paul Wolling, Inc., Winn Dixie of Louisiana, Inc., & Their Workmens Compensation Carriers, Employers Casualty Insurance Company & American Fidelity Fire Insurance Company.
    No. 5-177.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 9, 1982.

      R. K. Christovich, New Orleans, for Winn-Dixie of Louisiana, Inc. defendant-ap-pellee.
    Robert R. Faucheux, Jr., Reserve, for Earl Nicholas plaintiff-appellant.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   BOUTALL, Judge.

A worker was injured while unloading some produce from the back of a truck onto a grocer’s dock. He sues the grocer, the trucking agency, and the produce seller seeking workmen’s compensation benefits. The defendant grocer filed a motion for summary judgment which was later granted by the trial court. The plaintiff appeals that decision. We affirm.

On May 27, 1976, Earl Nicholas was sitting with a few of his friends at the corner of Washington and Claiborne when a truck driver named Thomas Jenkins stopped to ask Nicholas the location of the warehouse of Winn-Dixie Louisiana, Inc. The truck, which was owned by Hallaway Brothers, was carrying a load of watermelons which was to be unloaded that afternoon. However, the truck arrived at the warehouse too late in the evening to be unloaded that day. Jenkins gave Nicholas a few dollars for his help and asked Nicholas to return with a friend the next day to unload the truck. On the morning of May 28, 1976, Nicholas and his friend returned to unload the watermelons. Jenkins checked in at Winn Dixie’s receiving gate and backed the truck up to the dock in order for Nicholas and his friend to unload. The dock at Winn-Dixie is approximately four feet off the ground and is fronted by a lip which is about two feet wide. This lip is held up by a chain when the truck is up against the dock and is later released when the truck has pulled away. They proceeded to unload the watermelons from the truck into a food bin located just inside the warehouse. When Jenkins pulled the truck away after it was unloaded, the lip on the dock went down causing Nicholas to fall injuring himself. Apparently the lip of the dock was not properly secured when Jenkins backed his truck to the dock. Nicholas was taken to the hospital and now sues Winn-Dixie and others seeking workmen’s compensation benefits. Jenkins paid Nicholas’ friend for their efforts.

Appellant argues that he should be considered an employee of Winn-Dixie as set out in R.S. 23:1021. In the alternative, he argues that he should be considered a subcontractor of either Winn-Dixie or the trucking agency. However, the issue that confronts this court concerns the ruling on the motion for a summary judgment. When considering such a motion, the question concerns contestable facts not conclusions of law. In Chaisson v. Dominque, 372 So.2d 1225 (La.1979), the Supreme Court stated as follows:

“It is well settled that a motion for summary judgment should be granted if, and only if, the pleadings, depositions, answers to interrogatories, admissions ■ on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.”

See also Employers’ Surplus Line Insurance Company v. City of Baton Rouge, 362 So.2d 561 (La.1978). The basis for the granting of a motion for summary judgment is C.C.P. Articles 966 and 967. According to Article 967, when affidavits are filed, a party must file countervailing affidavits setting forth specific facts showing that there is a material issue of fact which is in controversy. It is our belief that even viewing appellant’s arguments in a most favorable light, there still seems to be no contestable issues of fact which would serve to overturn the trial court’s determination. It is for this reason that we affirm the trial court’s decision of granting Winn-Dixie’s motion for Summary Judgment.

AFFIRMED.


author: SCHOTT, Judge.

text:
    Hans NATERSKI, Individually and as Father and Administrator of the Estate of Tanya Naterski, Age 15 v. Glen P. McGRATH.
    No. 12755.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 9, 1982.
    Herman M. Schroeder, New Orleans, for petitioner-appellant.
    Robert E. Peyton, Christovich & Kearney, New Orleans, for defendants-appellees.
    Before SCHOTT, AUGUSTINE and LO-BRANO, JJ.
   SCHOTT, Judge.

This is before us on a judgment granting a motion for summary judgment dismissing plaintiff’s suit. The issue is whether the trial court properly granted the motion considering the record and the jurisprudential principles applicable to the trial court’s granting of such a motion.

Plaintiff is the father and administrator of the estate of his daughter, Tanya Nater-ski, who was 14 years of age at the time of the subject accident. The suit was filed on January 17, 1980, against Glen P. McGrath, and although service was not effected on him an answer was filed by his insurance company in July, 1980. The answer contained a general denial and an affirmative plea of contributory negligence on Tanya’s part. On July 22 defendant took Tanya’s deposition and on September 24 it moved for a summary judgment, which was argued and granted on October 17. No affidavit was filed by defendant and although interrogatories were propounded to and answered by him they did not contain any information concerning the facts of the accident. Thus, the record is devoid of any showing by defendant as to McGrath’s version of the facts of the accident.

However, in her deposition, Tanya testified substantially as follows: The accident occurred on Wren Street in a residential neighborhood in New Orleans. She had been operating a friend’s “go-cart” and entered Wren Street from a short cul-de-sac perpendicular to Wren Street. She traversed approximately three quarters of Wren Street intending to enter a lane leading to a park when she was struck on her left by the automobile operated by McGrath. She admitted that she did not look before she entered Wren Street and that McGrath tried to avoid her by swerving his automobile.

It is on the basis of her admission that she did not look that defendant contends it is entitled to a judgment as a matter of law based on her own confessed contributory negligence. However, while contributory negligence is a bar to plaintiff’s recovery as a general rule the doctrine of last clear chance is an exception to that rule. The doctrine has evolved to the point where plaintiff’s negligence would not preclude her recovery where McGrath either appreciated plaintiff’s peril or should have with the exercise of reasonable care and attention at a time when he could have prevented the injury. Baumgartner v. State Farm Mut. Auto. Ins. Co., 356 So.2d 400 (La.1978). See also Jackson v. Cook, 189 La. 860, 181 So. 195 (1938).

The record does not contain anything suggestive of McGrath’s speed or other operative facts which may enable plaintiff to recover despite Tanya’s admitted negligence in failing to look before she entered the street. Without McGrath’s version of how this accident occurred we are left with many unanswered questions which could, upon a trial, establish liability on his part despite Tanya’s conduct.

The law does not automatically excuse a motorist for running over a plaintiff who failed to look before entering the motorist’s path, and the isolated admission by Tanya that McGrath swerved to avoid her does not insulate him from liability under theories of constructive or even actual last clear chance.

The cases are too numerous to warrant citation for the principles that a motion for summary judgment is not a substitute for a trial, it is to be viewed in the light most favorable to the party opposing the motion and any doubt must be resolved against granting of the motion and in favor of trial on the merits. See, for example, Duvalle v. Lake Kenilworth, Inc., 396 So.2d 1268 (La.1981), Thornhill v. Black, Sivails & Bryson, 394 So.2d 1189 (La.1981).

Accordingly, the judgment appealed from is reversed and set aside, and there is judgment in favor of plaintiff, Hans Nasterski, and against defendant, denying its motion for summary judgment. The case is remanded to the trial court for further proceedings.

REVERSED AND REMANDED.