text:
    Curtis J. PAISANT v. UNIVERSITY OF NEW ORLEANS.
    No. 12948.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 25, 1980.

      Mary E. Howell, New Orleans, for appellant.
    Rutledge C. Clement, Jr. and John F. Whitney, New Orleans, for appellee.
    Before ELLIS, COLE and WATKINS, JJ.
   WATKINS, Judge.

This is an appeal from a ruling by the State Civil Service Commission that appellant’s appeal was not timely filed.

Appellant was a permanent classified employee in the state civil service, working at the University of New Orleans. There were several complaints by appellant’s supervisors as to the quantity and quality of his work. It was decided that appellant should be terminated.

Appellant makes two contentions which we will consider separately, (1) that the Director of Personnel was not notified of the employee’s discharge within fifteen days after the employee was notified, and (2) that the Civil Service Commission improperly dismissed the appeal as not timely filed.

NOTIFICATION

Appellant contends that because Civil Service Rule 12.3(a)(3) requires that the Director be notified within fifteen days after notice is given the employee, and the Director was not so notified, the attempted discharge of the employee was stricken with nullity. However, a recent decision of the Louisiana Supreme Court in Sanders v. Department of Health & Human Resources, 388 So.2d 768, held that the fifteen days notice requirement was not mandatory, but merely directory, and that a breach of the requirement did not invalidate an attempted discharge. The Court overruled its decision in Boucher v. Division of Employment Security, 226 La. 227, 75 So.2d 343 (1949), insofar as it held contrary to its decision in Sanders. The decision in Boucher held the rule as then worded (when the requirement of notice to the Director was substantially different) was mandatory and one might say sacramental. The Court in Sanders also noted that the discharged employee’s rights in that case were not prejudiced by failure to notify the Director timely. The same may be said of the present case. Accordingly, the discharge was not rendered invalid by failure to notify the Director timely.

TIMELINESS OF APPEAL

Mr. Ainsworth, Executive Assistant to the Director of the Physical Plant, prepared a letter of termination. He gave the letter to Mr. Lemoine, Superintendent of Operation and Maintenance. Mr. Lemoine gave the letter to Mr. Murphy, appellant’s immediate supervisor, who then gave the letter to appellant.

All of the above mentioned supervisors testified that appellant received the letter on May 19, 1978. Appellant claims that he received the letter on May 26. However, there was testimony to the effect that appellant was not at work on May 26. Appellant testified on cross examination that he did not remember when he received the letter. The question of when the letter was given to appellant is one of credibility of the witnesses. Upon a careful review of the entire record, this court agrees with the Civil Service Commission’s finding that appellant received the letter on May 19, 1978.

Appellant filed an appeal with the Commission which was postmarked June 19, 1978. Under Rule 13.12(b), appellant had 30 calendar days in which to appeal. The ,30th day on which the appeal should have been postmarked was June 18, 1978. June 18, 1978, fell on a Sunday. Rule 13.12(b) further states:

“Legal holidays and days on which the office of the Department of Civil Service is closed shall not serve to extend the delay period specified in Sub-section (a) hereof.”

The State Civil Service Commission has the power to adopt reasonable rules of procedure. It has set a 30 day limit on the filing of appeals in Rule 13.12(a)(1) and under Rule 13.12(b) has chosen to count legal holidays if the last day for an appeal falls on such a holiday. Under Rule 13.12, an appeal is timely if it is received in the Office of the Director of the State Department of Civil Service or postmarked within the time for appeal. These rules are clear and free from ambiguity. Rule 18.12(a)(1) has been held to be constitutional and a reasonable exercise of the constitutional and statutory authority granted to the Commission. Sutton v. Department of Public Safety, 340 So.2d 1092 (La.App. 1st Cir. 1976). We find the refining or defining rule of 13.12(b) to be a similarly reasonable exercise of the Commission’s authority. We can find no evidence in the record that would indicate that a letter could not have been postmarked on a Sunday, or, more particularly, on Sunday, June 18, 1978. Hence, appellant was given his full 30 days period in which to appeal. For these reasons we find that appellant’s appeal to the Civil Service Commission was not timely filed.

For the foregoing reasons, the judgment of the Commission is affirmed at appellant’s cost.

AFFIRMED.


source: Caselaw Access Project

author: ELLIS, Judge:

license: Public Domain

text:
    David A. TATE v. LIVINGSTON PARISH SCHOOL BOARD.
    No. 13505.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 6, 1980.
    Robert C. Funderburk, Thomas H. Ma-tuschka, Baton Rouge, for plaintiff.
    J. Donald Cascio, Denham Springs, for defendant.
    Before ELLIS, COLE and WATKINS, JJ.
   ELLIS, Judge:

David A. Tate was employed as a teacher and coach at Live Oak High School in Livingston Parish. Under date of May 9,1977, the principal of Live Oak wrote a letter to Caroll P. Leggette, Superintendent of Livingston Parish Schools, recommending that Mr. Tate not be rehired as a coach for the 1977-78 school year. The letter contained a number of reasons for the recommendation.

Pursuant thereto, Mr. Tate was advised by the Superintendent that he would be offered a contract as a teacher only. He would not show Mr. Tate the letter written by his principal. Mr. Tate then wrote a letter to the School Board asking for an open hearing. On Tuesday, May 31, 1977, he was called by Mr. Leggette and told that he would be heard by the School Board on June 2, 1977. Prior to that hearing, however, Mr. Tate had not seen the letter written by his principal, and was therefore not aware of the charges against him. After the hearing, the School Board voted not to rehire Mr. Tate as a coach.

This suit was filed, in which Mr. Tate asked that the School Board be enjoined from terminating his position as coach at Live Oak High School without first granting him a “due process hearing.” A temporary restraining order was denied and, after a hearing, Mr. Tate’s prayer for a preliminary injunction was also denied.

Thereafter, Mr. Tate amended his petition to ask for restoration of his lost pay and emoluments from June 2, 1977, until such time as he might be reinstated. The matter was then heard on the prayer for a permanent injunction and, thereafter, judgment was rendered in favor of plaintiff, ordering the School Board to “grant unto the Plaintiff a due process hearing prior to the termination of, or failure to renew, Plaintiff’s contract as Coach at Live Oak High School.” The School Board was further ordered to restore to plaintiff all benefits of employment as Coach, including salary, from June 2,1977, until such time as the due process hearing is granted. The judgment further specifies that the School Board is not compelled to hire plaintiff as a coach pending the granting of the hearing. From this judgment, the School Board has appealed suspensively. Plaintiff has neither appealed nor answered the appeal.

First, the School Board claims that the court erred in overruling its preemptory exception of constitutional immunity. It is conceded that there is no immunity in suits in contract against a political subdivision. Article XII, § 10, Constitution of 1974; R.S. 13:5105 et seq.; R.S. 17:51. However, it is claimed that this is a suit based on failure to obtain a contract, and not a suit on a contract. There is no merit to the contention. Plaintiff is arguing that, as a tenured teacher, he has a right to be maintained in his position as a coach, and, therefore, a right to receive his contract.

The major question presented by this appeal is whether or not plaintiff’s position as a coach is protected by the Teacher Tenure Law, R.S. 17:441 et seq. It is stipulated by all parties that, in Louisiana, there is no certification for coaches as such. However, according to the testimony, a coach must be the holder of a teacher’s certificate.

R.S. 17:441 reads as follows:

“As used in this Sub-part, the word ‘teacher’ means:
“(1) Any employee of any parish or city school board who holds a teacher’s certificate and whose legal employment requires such teacher’s certificate;
“(2) Any school lunch supervisor employed by a parish or city school board who holds a special parish school lunch supervisor’s certificate issued by the department of education of the state of Louisiana and whose employment requires such certificate.”

R.S. 17:442, provides, in part, as follows:

“Each teacher shall serve a probationary term of three years to be reckoned from the date of his first appointment in the parish or city in which the teacher is serving his probation. During the probationary term the parish or city school board, as the case may be, may dismiss or discharge any probationary teacher upon the written recommendation of the parish or city superintendent of schools, as the case may be, accompanied by valid reasons therefor.”

R.S. 17:443(A) provides:

“A permanent teacher shall not be removed from office except upon written and signed charges of wilful neglect of duty, or incompetency or dishonesty, or of being a member of or of contributing to any group, organization, movement or corporation that is by law or injunction prohibited from operating in the State of Louisiana, and then only if found guilty after a hearing by the school board of the parish or city, as the case may be, which hearing may be private or public, at the option of the teacher. At least fifteen days in advance of the date of the hearing, the school board shall furnish the teacher with a copy of the written charges. The teacher shall have the right to appear before the board with witnesses in his behalf and with counsel of his selection, all of whom shall be heard by the board at the said hearing. Nothing herein contained shall impair the right of appeal to a court of competent jurisdiction.”

It is clear that a teacher who does not enjoy tenure in his position may be discharged by the School Board without notice or a hearing, so long as valid reasons for his discharge are expressed in writing by the Superintendent of Schools. Castille v. Evangeline Parish School Board, 304 So.2d 701 (La.App.3d Cir. 1974). On the other hand, a permanent teacher, one who enjoys tenure, can be discharged only for the specific reasons and under the procedures prescribed by R.S. 17:443(A), supra.

On the face of the record, it appears that, if the Teacher Tenure Law applies to coaches, plaintiff’s removal from his coaching responsibilities was not legally accomplished. The hearing given plaintiff by the School Board falls far short of meeting the standards set by R.S. 17:443(A), so that, if plaintiff is tenured as a coach, his removal from that position is not legal. Nor was his removal legal if he does not enjoy tenure. The record does not contain a written recommendation from the Superintendent to the School Board, expressing valid reasons for his dismissal, as required by R.S. 17:442.

The School Board seems to be arguing that, since coaches are not certified, they do not enjoy the protection of the Teacher Tenure Law regardless of length of service or ability. From the record as presently constituted, we learn that a coach has regular teaching duties in addition to his duty as a coach. There is testimony that he must be the holder of a teacher’s certificate. A coach receives a higher salary than a teacher of the same class who is not a coach. Plaintiff in this case taught and coached at Live Oak for more than three years, and was tenured as a teacher. R.S. 17:441, supra, defines a teacher as “Any employee . . . who holds a teacher’s certificate and whose legal employment requires such teacher’s certificate.”

In Howell v. Winn Parish School Board, 332 So.2d 822 (La.1976), the court said:

“The Louisiana Teacher Tenure Act is designed to protect the job security of teachers and the statute should, therefore, be liberally construed in favor of the class of person intended to be its primary beneficiaries, the tenured employees.”

On the basis of the record as presented, we can see no reasonable basis for denying the holder of a coaching position the protection of the Teacher Tenure Act. A coach would appear to fall within the provisions of R.S. 17:441, as an employee who holds a teacher’s certificate and whose employment requires such a certificate.

However, it may be that the state has chosen not to regulate those who coach interscholastic extracurricular sports. Unfortunately, we are unable to ascertain whether this assertion is true. No statute of this state purports to regulate high school athletics or coaches. The rules and regulations of the Department of Education are presently not available through the Department of State Register, and we are therefore unable to take judicial cognizance thereof. R.S. 49:956(3). Neither party to the case chose to place these rules and regulations in evidence. We do not know the legal basis, if any, for the factual assertion made herein that a coach must be the holder of a teacher’s certificate.

Under those circumstances, and considering the importance of the question presented, we think the interests of justice will best be served by remanding the case to the trial court for a new trial, at which the parties may offer such additional evidence as is necessary to complete the record, and for a decision based thereon.

The judgment appealed from is therefore reversed and set aside, and the case remanded to the trial court for further proceedings in accordance with this opinion, and according to law. The parties shall share equally the costs of this appeal, and all other costs shall await final determination hereof on the merits.

REVERSED AND REMANDED.


author: COLE, Judge.

text:
    Patricia Ann OLINDE, Widow of Claiborne Olinde, Jr., Individually and as Tutrix of the Minor Children, Clarissa J. Olinde and Clayton J. Olinde v. STATE of Louisiana et al.
    No. 13553.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 6, 1980.
    Rehearing Denied Dec. 15, 1980.

      Fred Belcher, Jr., Lee Herrington, Baton Rouge, for Patricia Ann Olinde, Ind., Etc.
    Frank Gremillion, Richard Creed, Asst. City-Parish Atty., Baton Rouge, for City Parish of Baton Rouge.
    Lawrence Durant, Baton Rouge, for State of Louisiana through its Department of Highways.
    Kenneth Barnette, Baton Rouge, for Louisiana Elec. Co.

      Before ELLIS, COLE and WATKINS, JJ.
   COLE, Judge.

Plaintiff-appellant, Mrs. Patricia A. Olinde, individually and on behalf of her two minor children, filed suit against four defendants alleged to be responsible for the wrongful death of her husband, Claiborne Olinde, Jr. Mr. Olinde was electrocuted when he touched a metal sign that had come into contact with an underground electric cable. The trial court determined that there was no negligence on the part of the State of Louisiana, through the Department of Transportation and Development. The State had designed and implemented the lighting system which was served by the underground cable. The court also found there was no negligence on the part of Louisiana Electric Company, the contractor that was hired by the state and who actually installed the lighting system. The court found the other two defendants, the City of Baton Rouge and the Parish of East Baton Rouge, had breached their duty to exercise reasonable care in the installation of the traffic sign that had become electrically charged. The City-Parish was ordered to pay plaintiff $371,215.00 plus costs.

The plaintiff and the City-Parish have both appealed. The City-Parish contests the trial court’s finding of liability and challenges the damages as being excessive. Plaintiff raises three issues to be considered on appeal. She asserts the trial court erred in finding no negligence on the part of the State of Louisiana, through the D.O.T.D. Plaintiff further argues the court erred in finding no negligence on the part of Louisiana Electric Company. Finally, plaintiff argues the trial court failed to award her adequate damages. She seeks to have the amount of damages raised to $685,976.20. Because we find the trial court was not clearly wrong nor did it commit manifest error as to any aspect of the case, we affirm. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

The details of the case tell the story of a tragic and freakish accident. On August 4, 1975, Claiborne Olinde, Jr., twenty-six years old, was walking along the sidewalk next to College Drive near the 1-10 interchange. He stopped momentarily near a metal post that supported a directional traffic sign. He either intentionally touched or accidentally hit the signpost. He held the post for a moment and then fell to the ground. Police officers arrived at the scene and attempted to revive him but he was pronounced dead upon arrival at Doctor’s Memorial Hospital.

A post accident investigation revealed that Mr. Olinde had been electrocuted. The sign he touched had been energized with 480 volts of electricity. This unique situation had developed when city-parish workers had installed the traffic sign some eighteen days earlier. The evidence showed that the metal signpost had pierced an underground electric cable. Only one of the two wires in the cable was cut so that the current continued to flow. The cable was a part of the lighting system that had been designed by the state and installed by Louisiana Electric Company in 1969. The lighting system was controlled by a sensing device that energized the system only when it became dark. Therefore, at the time the sign was installed (during the daytime), the underground cable was not carrying any electric current. Consequently, the city-parish workers had no indication that the metal post of the sign had pierced the underground line. Experts at the trial hypothesized that both the damp ground and the metal post were receiving current from the underground line. Mr. Olinde’s body served as a conductor for this current when he touched the sign.

NEGLIGENCE OF THE STATE, THROUGH D.O.T.D.

Evidence at trial established that the underground cable was buried eighteen inches deep. All witnesses knowledgeable in the field of electricity agreed the National Electric Code is the code applicable to the work done by the state. The 1965 code, which is the code in effect at the time the lighting system was designed, required a minimal depth of eighteen inches. (It is irrelevant that the code was later changed to require a depth of twenty-four inches).

Plaintiff argues the State was negligent in not burying the cable deeper than the depth required by the code. There was much discussion of this issue at trial. Plaintiff’s two expert witnesses testified that in their professional opinion the code did not establish adequate standards. The defendants’ two expert witnesses said they felt constructions built in accordance with the code were sufficiently safe. In cases where there is conflicting testimony of expert witnesses the appellate court must rely on the fact finder’s impressions. This finding of fact will not be overturned unless manifest error appears in the record. St. Pierre v. Gabel, 351 So.2d 821 (La.App. 1st Cir. 1977). Therefore we accept the trial court’s findings that defendants’ experts established the eighteen inch minimum depth was sufficiently safe, according to the practice and requirements in effect at the time the system was designed.

Plaintiff urges the accident would not have occurred if the cable had been buried twenty-four inches. This is true and unquestionably establishes the actions of the State were a cause in fact of this unfortunate accident. However, the trial court found there was no liability because there was no breach of duty. The State acted reasonably in installing the cable according to the standards of the National Electric Code.

It is well established in Louisiana jurisprudence that mere compliance with a code such as the National Electric Code or the National Electric Safety Code does not per se relieve the defendant of being found negligent. McKowen v. Gulf States Utilities, 358 So.2d 675 (La.App. 1st Cir. 1975). A determination of negligence must be made in light of the circumstances of each case. Burley v. La. Power & Light Co., 319 So.2d 334 (La.1975) rehearing denied 1975. The trial court found several circumstances which justified the State’s action of burying the cable the minimum eighteen inches. One important factor is that the State delivered copies of the “as-built” plans to the City. These plans are drawings that are made as the electrical system is actually being installed. The State was reasonable in assuming the City would refer to these drawings to locate the underground cable before digging. Another factor that justifies minimal burial is the State insulated the cable to a greater extent than was called for by the code. The evidence indicates the code called for a 45 mill insulation. The State used a 65 mill insulation plus a 30 mill outer jacket. The entire line was encased in a conduit for added protection. Although this heavy-duty insulation was obviously insufficient to protect the line from the sharp edge of the metal signpost, the record reflects this amount of insulation would have been more than adequate to protect against most foreseeable disturbances.

The foreseeability of a situation is yet another factor that is indicative of negligence, regardless of compliance with the code. The plaintiff argues the State should have anticipated the city-parish might be digging in this area. The trial court found the State anticipated if the city-parish workers planned to do any excavation in the area, they would first consult the as-built plans and then take whatever steps necessary to locate the underground wires.

The McKowen case is easily distinguishable from the present case because the danger that arose in McKowen was foreseeable. In McKowen, the mast of plaintiff’s sailboat came into contact with an overhead electric wire, causing severe electrical shocks to the plaintiff. The court found the utility’s compliance with the National Electric Safty Code (a code specifically applicable to utility companies) did not per se relieve them of negligence. The court examined the circumstances surrounding the accident. The evidence showed the land directly underneath the line in question had ordinarily been dry land and the clearance met the code requirement. However, on the day of the accident the water had risen so the land directly underneath the line was then covered with water. The clearance between the water and the line was therefore greatly reduced. Testimony at trial clearly established the high water was not ■ an extremely unusual condition, the utility company was well aware of the frequently rising water, the utility company knew the area was heavily traveled by sailboats, and a very similar accident had occurred recently. These factors established the utility company should have anticipated the condition and was negligent for failing to take steps to prevent that type of accident.

To the contrary, the testimony in the Olinde trial indicated this strange phenomena of the sign becoming energized by the underground cable, had never occurred before or since the accident. Professionals from the City-Parish Department of Public Works and from the D.O.T.D. both testified as such. The trial court found that since the situation was not foreseeable, the State was justified in relying on the standards of the code.

NEGLIGENCE OF LOUISIANA ELECTRIC

Plaintiff urges that Louisiana Electric was negligent for installing the underground line at the eighteen inch depth. The trial court found no merit to this claim. Louisiana Electric, like any other person or legal entity, has a duty to use reasonable care. The record reveals Louisiana Electric acted reasonably in installing the line exactly as the plans dictated. The plans meet the specifications of the National Electric Code. The Code was designed to set forth guidelines, which if followed, would result in constructions free from hazard, although not necessarily efficient, convenient or adequate for good service or for future expansion. National Electric Code, § 90-1A (1965). Therefore, it was completely adequate and reasonable for them to comply with the plans as presented to them.

NEGLIGENCE OF CITY OF BATON ROUGE AND THE PARISH OF EAST BATON ROUGE

The trial court found the city acted negligently in installing the traffic sign without making any attempt to first locate the underground cable. The record reflects the city workers who actually installed the sign were well aware of the fact there was underground cable in the area. This could be readily observed by noticing there were no visible overhead wires running between the light standards. One worker, Mr. Lipscomb, testified they simply looked around the area and then dug the hole at a spot they felt was safe. He testified they assumed the line ran directly between the two light standards although the evidence indicated the line actually ran several feet in front of the light standards.

While it is understandable these workers would make such an assumption, the City must exercise more care in the installation of signs in areas where it is known underground cables exist. The record reflects the standard practice at the time of the accident was to give complete discretion to the workers who installed the sign. The risk of making contact with an underground cable is a serious one, therefore it is simply not reasonable to allow this much discretion to laborers who have no training in the area of electricity.

The record establishes the State sent a copy of the “as built” plans to the City-Parish. The City had these plans in its possession at the time the sign was installed, yet the plans were not consulted. There is conflicting testimony as to the accuracy of the as built plans, but all parties agree they are not exact. The City-Parish argues even if the plans had been consulted the line could not accurately have been located. Certainly it can not be contended if the City had consulted these plans this situation would definitely not have arisen. The relevant point is the City-Parish made no attempt whatsoever to locate the underground lines before digging.

It is well known in the electrical community that the as built plans are not exact. There was much conflicting testimony at trial as to how helpful the plans would have been. The evidence establishes a well trained person is able to determine the approximate location of the lines from these plans. Defendants’ experts contend they were able to locate the cable by carefully studying the ground in the area. An engineer for the D.O.T.D. testified a person desiring the exact location of the lines can obtain this information from the district engineer of the Highway Department. Another witness testified if there is any uncertainty about the exact location of the lines the area should be hand excavated to pinpoint the location before proceeding with machinery. The record is abundant with evidence that there are several steps that can be taken in order to locate underground electric lines. But the City-Parish did not take any precaution at all. The workers were given no supervision in the matter and were simply allowed to “guess.” Such a lack of care clearly falls below the standard of a reasonable person.

DAMAGES

The trial court is granted wide discretion in determining the amount of damages to be awarded. This finding will not be disturbed unless there is a finding the court has abused its discretion. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976), rehearing denied 1977. We find the award of $231,543.00 in favor of Patricia Ann Olinde is adequate. Plaintiff contends the award for pain and suffering of Claiborne Olinde, Jr. should be raised . from $6,000 to $15,000. The record does not support this claim. There is no testimony to establish the extent of Mr. Olinde’s suffering. It is certainly impossible to state he suffered nothing or he suffered a great deal. Expert medical testimony suggested he was killed almost instantly. The testimony indicates he was probably not conscious after coming into contact with the sign. In light of these circumstances it is reasonable to award the $6,000.

Plaintiff further contends the funeral expense award of $3,278 is inadequate. She offered into evidence a funeral bill totaling $9,039.20 and stated this amount was necessary to have the type funeral she wanted. Mr. Robert Williams, director of Gilbert’s Funeral Home, testified at the trial. He stated this was an unusually expensive funeral, costing at least three times as much as the average funeral at the same funeral home. It is certainly up to Mrs. Olinde to spend whatever amount she deems appropriate on her husband’s funeral, but the defendant can not be expected to bear the cost of such an extravagant affair. Mr. Williams specifically testified the average funeral cost from $2,000 to $3,000 so the award granted is adequate.

Plaintiff contests the amount of damages awarded for the loss of love and affection for herself and her children. There has been no abuse of discretion by the trial court. The awards for the children are reasonable. Plaintiff cites Cheatham v. City of New Orleans, 378 So.2d 369 (La. 1979), rehearing denied 1980, and claims because the ages of the parties involved are similar, the trial court should have granted similar amounts to the Olindes. The awards in other cases serve only as an aid in determining whether there has been an abuse of discretion. Miller v. Thomas, 246 So.2d 16 (La.1971). Considering the significant amount of testimony concerning the stormy relationship between the plaintiff and her late husband, it can not reasonably be argued the trial court abused its discretion in granting $50,000 to Mrs. Olinde. The record reflects there were frequent physical separations, fights serious enough to require police intervention, a filing of a suit for separation, and a request for a restraining order. This evidence simply does not paint the picture of the “close-knit” family plaintiff claims the family to have been. The City-Parish argues the amount of damages is excessive. Again, the trial judge has great discretion. Although there may be valid arguments that the award should be less, the record simply does not indicate the judge abused this discretion. The City-Parish cites Case v. Arrow Trucking Co., 372 So.2d 670 (La.App. 1st Cir. 1979) for the proposition $30,000 is the highest possible award allowable for a minor child. This is a misinterpretation of the case. In Case, the court found the trial judge had abused his discretion in awarding an excessively high amount. Under the rule of Coco v. Winston Industries, supra, the appellate court is then required to survey similar cases to find the highest award allowed. At the time Case v. Arrow was written $30,000 was the maximum amount granted. But this procedure has no application at all to cases where there has been no abuse of discretion. Without the abuse of discretion, the amount of damages may stand.

For the foregoing reasons the judgment of the trial court is affirmed. All costs are to be assessed to the City-Parish.

AFFIRMED.


author: ELLIS, Judge.

text:
    Cleveland L. PLAIN v. MOTORS INSURANCE CORPORATION et al.
    No. 13565.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 6, 1980.
    Rehearing Denied Dec. 15, 1980.
    Writ Refused Feb. 13, 1981.
    Johnnie A. Jones, Baton Rouge, for plaintiff-appellant Cleveland L. Plain.
    R. Ryland Percy, III, Gonzales, for defendant-appellee Motors Insurance Corp.
    Elizabeth Stewart, J. Glenn Dupree, Baton Rouge, for defendant-appellee General Motors Acceptance Corp.

      Ralph E. Hood, Baton Rouge, for defendant-appellee Mclnnis-Peterson Chevrolet, Inc.
    Before ELLIS, COLE and WATKINS, JJ.
   ELLIS, Judge.

Cleveland L. Plain purchased a truck from Mclnnis-Peterson Chevrolet, Inc., on March 26, 1977. Morris Plain co-signed the note and mortgage given in connection therewith. The contract price for the purchase of the vehicle included $630.00 for collision insurance. When giving the insurance information to the finance and insurance manager of Mclnnis-Peterson, Cleveland Plain advised him that he had received one speeding ticket during the three years preceding the sale. The manager telephoned this information to Motors Insurance Corporation, which attempted to verify Mr. Plain’s record of driving violations, but because of the malfunction of a computer was unable to do so. MIC therefore issued a ten-day binder covering Mr. Plain, based on his statement, pending receipt of his driving record. On April 5, 1977, it was found that Mr. Plain had had four moving violations in the preceding three years. As a result, MIC declined the application for insurance.

A notice to this effect was mailed to Mr. Plain at 2658 Badley, Baton Rouge, the address shown on the chattel mortgage. Mr. Plain, whose address was 2658 Bradley, testified that he never received the notice. After learning of the rejection of Mr. Plain’s application, Mclnnis-Peterson, in accordance with the terms of the chattel mortgage, obtained a “single interest” policy, which protected the holder of the chattel mortgage note only, and paid for same with a portion of the $630.00 charged to Mr. Plain for insurance. The balance of the $630.00 was credited to his account.

On November 29, 1977, Mr. Plain was involved in a one-vehicle accident, as a result of which he damaged the truck to such an extent that $3,213.28 would have been necessary to repair it. Mr. Plain testified that it was after the accident when he learned for the first time that he was uninsured.

Thereafter, Cleveland Plain filed this suit against Motors Insurance Corporation, CIM Insurance Corporation, General Motors Acceptance Corporation and Mclnnis-Peterson Chevrolet, Inc., alleging that he had paid the premium for the collision insurance in his name, and was entitled to his policy. He asks for an amount sufficient to repair the vehicle, penalties and attorney’s fees, as well as damages for the loss of use of his truck.

Sometime later, Mclnnis-Peterson filed suit on the note and chattel mortgage, seeking judgment against Cleveland Plain and Morris Plain for the full balance due on the note, plus interest and attorney’s fees, and asking for recognition of its lien and privilege on the vehicle arising from the chattel mortgage.

The two cases were consolidated for trial and, after trial on the merits, judgment was rendered in the first case in favor of defendants, dismissing Cleveland Plain’s suit at his cost, from which judgment Mr. Plain has appealed.

Two specifications of error are made in this case. The first of these reads as follows:

“The Trial Court erred insofar as it failed to find or maintain that MIC did not bear its burden of proof that Plain was notified prior to the date of the accident that his application for dual-interest insurance coverage had been rejected and that $474.00 of the $630.00 was being used to purchase single-interest insurance coverage for the protection of GMAC and that he was due a credit of $156.00 at GMAC; neither did GMAC bear this burden of proof.”

As pointed out above, MIC sent the notice to the address furnished it by Mr. Plain through Mclnnis-Peterson. Mr. Plain admitted to having received his payment book, which had been sent to him at the same address. The important fact in this case is that MIC was not obligated to write insurance for Mr. Plain, and was certainly justified in the refusal in the light of the false representations on the application and Mr. Plain’s poor driving record. We fail to see what duty MIC owed Mr. Plain, or how they could have done any more than they did.

Mr. Plain also objects to this dismissal of the case as to GMAC. GMAC was in the case as an assignee of the note and mortgage. It was not involved in any of the circumstances surrounding the insurance. There is no basis for liability on the part of GMAC.

Mr. Plain assigns no other errors. The judgment herein is therefore affirmed, at his cost.

AFFIRMED.


text:
    McINNIS-PETERSON CHEVROLET, INC. v. Cleveland L. and Morris PLAIN.
    No. 13566.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 6, 1980.
    Rehearing Denied Dec. 15, 1980.
    Writ Refused Feb. 13, 1981.

      Ralph E. Hood, Baton Rouge, for plaintiff-appellant Mclnnis Peterson Chev. Co.
    Johnnie A. Jones, Baton Rouge, for defendants-appellees Cleveland L. Plain and Morris Plain.
    Before ELLIS, COLE and WATKINS, JJ.
   ELLIS, Judge.

The facts of this case are fully set forth in our opinion in the case of Plain v. Motors Insurance Corporation, 391 So.2d 1249, (La.App. 1st Cir. 1980) to which reference is made.

Judgment was rendered herein favor of Mclnnis-Peterson, recognizing its lien and privilege against plaintiff’s truck, and ordering that the title of the truck be transferred into the name of Mclnnis-Peterson. From that judgment, Mclnnis-Peterson has appealed.

In his appeal brief in the other consolidated case, Mr. Plain makes various assignments of error which relate to this case. We cannot consider these assignments. Mr. Plain neither appealed nor answered the appeal herein, and the judgment is final as to him. The fact that the two cases were consolidated for trial is of no moment. Darouse v. Mamon 201 So.2d 362 (La.App. 1st Cir. 1967).

The plaintiff herein, Mclnnis-Peterson, prayed for a money judgment for the stipulated balance due on the note and for recognition of its lien and privilege under the mortgage.

The judgment rendered recognized the lien and privilege, but did not award a money judgment. Instead, it ordered title transferred to plaintiff from Mr. Plain. In so ruling, the trial judge was attempting to insure that Mclnnis-Peterson would collect the single interest insurance and that Mr. Plain would have no further liability under the note. Unfortunately, the judgment exceeds the authority of the trial judge, who cannot arbitrarily change title to a chattel from one party to another, particularly in a suit in which no such relief is requested by either party.

It is clear that Mclnnis-Peterson is entitled to judgment on the note and to recognition of its lien and privilege on the truck. Assuming that, thereafter, it executes on the judgment and acquires title to the truck at sheriff’s sale, it would then have a right to the proceeds of the single interest policy. If it should subsequently attempt to levy on Mr. Plain’s property or wages to satisfy any alleged deficiency in the judgment, Mr. Plain may protect his interest in any insurance payment made by a proceeding under Article 2298(2) of the Code of Civil Procedure.

Accordingly, the judgment appealed from is reversed and there will be judgment in favor of Mclnnis-Peterson Chevrolet, Inc., and against Cleveland Plain and Morris Plain, in solido, in the sum of $5,188.53, together with interest thereon at the rate of 14.74% per annum from June 26, 1978, until paid, plus 25 per cent of the principal and interest due as attorney’s fees, and all costs of this proceeding.

It is further decreed that the lien and privilege of Mclnnis-Peterson Chevrolet, Inc. on the following described chattel be recognized and maintained.

“One new 1977 8 cylinder Chevrolet pickup truck, bearing serial number CCS 147A154428.”

REVERSED AND RENDERED.


text:
    WRAY WILLIAMS DISPLAY COMPANY OF LOUISIANA v. Jerry FINLEY, Individually and as head and Master of the Community Existing Between himself and June Finley and June Finley, d/b/a “June’s Apparel”.
    No. 13576.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 6, 1980.
    Rehearing Denied Dec. 15, 1980.
    Writ Refused Feb. 13, 1981.

      G. Thomas Arbour, Baton Rouge, for plaintiff-appellee Wray Williams Display Company of Louisiana.
    John R. Rarick, St. Francisville, for defendant-appellant Jerry Finley, Individually & as head & master of the community existing between himself and June Finley and June Finley d/b/a “June’s Apparel”.
    Before ELLIS, COLE and WATKINS, JJ.
   ELLIS, Judge.

This is a suit on open account, brought by Wray Williams Display Company of Louisiana against Jerry Finley and June Finley. After trial on the merits against Mr. Finley only, judgment was rendered in favor of plaintiff and against Mr. Finley, individually, and as head and master of the community existing between him and June Finley, and he has appealed.

Mr. and Mrs. Finley were married in Virginia in July, 1976, and shortly thereafter established their matrimonial domicile in Denham Springs, Louisiana. In April, 1977, Mrs. Finley opened a dress shop in East Baton Rouge Parish under the name of June’s Apparel. About three months later, she opened a second store, Gar Dar Fashions. At the time that Gar Dar Fashions was opened, Mr. and Mrs. Finley were not living together, although no legal separation ever took place. The parties had reconciled by the time of the trial of this case in August, 1979. Apparently there were other separations and reconciliations during that time.

On June 30, 1977, Mrs. Finley went to plaintiff’s store in New Orleans and purchased a number of items for use in her two stores, totalling $1,586.26. A portion of the purchase price was paid in cash, and some was charged. Mrs. Finley opened a charge account in the name of June’s Apparel with plaintiff on that day. She presented a financial statement in the names of Jerry I. and June E. Finley in support of her application. Mrs. Finley took with her the merchandise purchased that day. On July 13, 1977, one further order was placed with plaintiff, and the merchandise delivered by truck line.

At the trial, plaintiff’s credit manager testified as to the purchases made by Mrs. Finley, and stated that two payments had been made thereon: one of $800.44 on June 30th, when the first order was made, and a second payment of $100.00 made by mail on July 21,1977, leaving a balance of $1,169.46. Offered in evidence in support of her testimony were Xerox copies of carbon copies of the original invoices.

Mrs. Finley testified that, at the time of the original purchase, she gave plaintiff the check for $800.44 and $500.00 in cash, for which she could produce no receipt. She did, however, produce a check written to cash for $600.00, on June 30, 1977, which she said was the source of the money. She testified that she later made two $100.00 payments by mail, but she did not have any cancelled checks or receipts to substantiate this testimony. Finally, she testified that she paid cash to the truck driver who delivered the July 13, 1977, order. She had no receipt but produced another check for cash, dated July 25,1977, for $700.00, which she said was the source of the cash used. The amount of the July 13th invoice was $483.64, and Mrs. Finley said the shipping charges were about $100.00. The freight line ticket shows that the merchandise was shipped freight collect, but not C.O.D. She further testified that, on her books, she still owed plaintiff about $483.00.

The trial judge, saying that he did not find Mrs. Finley’s testimony credible as to the payments made, rendered judgment for the full amount prayed for. In this court, Mr. Finley raises a number of assignments of error.

After the petition was filed herein, Mr. Finley filed declinatory exceptions to the venue and jurisdiction over his person. He later filed a dilatory exception to the procedural capacity of plaintiff. The trial judge overruled the declinatory exceptions on their merits, but added that he thought that, by later filing the dilatory exception, Mr. Finley waived all objections which might have been raised by the declinatory exception. Mr. Finley now complains of the latter ruling. We find that we need not rule on this assignment of error. The trial judge correctly overruled the declinatory exceptions on their merits, and Mr. Finley raises no question as to the propriety of his ruling in this respect. The ruling complained of is surplusage, having no bearing on the ultimate disposition of the exceptions.

Mr. Finley next complains that the court erred in forcing him to trial when his wife was before the court, but issue had not been joined as to her. The record shows that Mrs. Finley was not served until well after service was effected on Mr. Finley. She filed all of the exceptions which had been previously filed by Mr. Finley and overruled by the court. One of these exceptions was still outstanding at the time of trial herein. All parties were aware of the procedural posture of the case when it went to trial, and no objection was raised by Mr. Finley. There is no merit to the assignment of error.

Mr. Finley next complains that, since he and his wife were married outside of Louisiana, and the debt sued on herein was contracted within a year after they moved to Louisiana, the court erred in presuming the existence of a community of acquets and gains between them. He further alleges that the court erred in finding him liable for the debts of his wife which were incurred while they were not living together.

Former Articles 2401 and 2329 of the Civil Code, which were in effect when the parties moved to Louisiana, provide:

“Art. 2401. A marriage, contracted out of this State, between persons who after-wards come here to live, is also subjected to community of acquets, with respect to such property as is acquired after their arrival.”
“Art. 2329. Every matrimonial agreement can be altered by the husband and wife jointly before the celebration of marriage; but it cannot be altered after the celebration. Provided that in the case of married couples removing to this State and settling therein from other States and countries after marriage, they shall have the right at any time within one year after the passage of this Act, or a like period after such settlement in this State, to make a valid marriage contract, subject in all other respects to the laws of this State.”

There is no showing made that a marriage contract was entered into by Mr. and Mrs. Finley after they moved to Louisiana. Therefore, there was a community existing between Mr. and Mrs. Finley.

Article 131 of the Civil Code, which was in effect at the time of the trial herein, provides:

“If the wife is a public merchant, she may, without being empowered by her husband, obligate herself in anything relating to her trade; and in such case, her husband is bound also, if there exists a community of property between them. “She is considered as a public merchant, if she carries on a separate trade, but not if she retails only the merchandise belonging to the commerce carried on by her husband.”

Admittedly, the earnings of the wife, while living separate and apart from her husband, are her separate property under former Article 2334 of the Civil Code. However, former Article 2403 of the Civil Code specifically provides that debts contracted during the existence of the community “must be acquitted out of the common fund.” Further, it is not at all clear exactly when these parties were separated and when they were living together. It is clear that Mr. Finley was fully aware of Mrs. Finley’s business activities; that he permitted his financial statement to be used in connection therewith; that he provided legal counsel to Mrs. Finley, and that he advanced funds for use in the business. We think the trial judge correctly found that Mr. Finley could be legally liable for this debt.

Mr. Finley’s argument that Article 131 is unconstitutional because it contains a gender based classification cannot be considered because it was not pled in the lower court.

Mr. Finley further claims that he should not have been found liable “individually” for the debt, and that his separate property should not be liable for it. This is an incorrect statement of the law. The husband’s estate is liable for community debts. Article 2403, Civil Code; Ward v. Trimble, 20 So.2d 765 (La.App. 2nd Cir. 1945).

Finally, Mr. Finley alleges that the trial judge erred in admitting into evidence the Xerox copies of the invoice, when the originals were readily available. This is, of course, correct. The best evidence rule requires that the originals must be produced, absent proof that they could not be located following a diligent effort. In this case, the originals are in plaintiff’s files. We do not think that the fact that the credit manager testified that she personally made the Xerox copies relied on is sufficient to excuse the failure to produce the originals. However, we find the error to be harmless. Mrs. Finley examined each of the invoice copies and admitted to having purchased the merchandise shown thereon. Therefore, the matters in proof of which the invoices were produced are not in contest.

The judgment appealed from is therefore affirmed, at the cost of Jerry Finley.

AFFIRMED.


text:
    Ralph T. THORNHILL, Individually and as Administrator of the Estate of his minor Son, Allen Arthur Thornhill v. BLACK, SIVALLS & BRYSON, INC. et al.
    No. 13577.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 6, 1980.

      H. Alva Brumfield, III, Baton Rouge, Emile Rolfs, III, and Steve Vogt, Baton Rouge, for plaintiff-appellant, Ralph T. Thornhill, Indiv., etc.
    A. Michael Dufilho, Baton Rouge, for defendants-appellees, Black, Sivalls & Bryson, Inc. et al.
    Ben Louis Day, Baton Rouge, for U. S. Fidelity & Guaranty Co., Inc., Clayton Grain Elevator, Inc.
    John Barkley Knight, Jr., Winnsboro, for Mayes H. Brister, Larry W. Robinson and William E. Moroni.
    William B. Ragland, Lake Providence, for defendants-appellees, Otis C. Raley & Walter Beebe.
    Dermont S. McGlinchey and J. Michael Johnson, New Orleans, for intervenor-ap-pellee, Screw Conveyor Corp.
    Before ELLIS, COLE and WATKINS, JJ.
   COLE, Judge.

This is a devolutive appeal by the plaintiff-appellant, ALLEN ARTHUR THORN-HILL, from judgment granting summary judgment in favor of Mayes Brister, Larry W. Robinson, William Moroni, Clayton Grain Elevator, Inc., United States Fidelity & Guaranty Company, Gary Mitchell and Walter Beebe, dismissing the plaintiff’s suit. We affirm.

The incident giving rise to the present litigation occurred on November 12, 1976, when Allen Arthur Thornhill, in the course and scope of his employment as a general manual laborer for Clayton Grain Elevator, Inc., was seriously injured when his left leg became entangled in a screwtype auger which rotated in a trough below the grain bin which Thornhill was cleaning. As a result of the injury, Thornhill had to have his left leg amputated. At the time of his injury Thornhill was 16 years old and had been working for a period of six weeks on the job with Clayton Grain Elevator, Inc.

The grain storage facility where Thorn-hill worked consisted of two silos or bins both of which were served by a screwtype auger conveyor system for transporting stored grain outside. The conveyor system consisted of a trough recessed in the floors of the bins containing the auger and a cover. There were three access openings to the conveyor system equidistant from each other, one hatch being in the center of the bin and the other two about five feet from the sides. The access openings were controlled by handles located outside the bin. At the time of his unfortunate accident, Thornhill was cleaning grain hulls from the inside walls of the bin and sweeping them and any debris on the floor into the rotating auger through the access openings, all of which were in the open position. Thornhill had been instructed in the proper cleaning method and was aware of the dangerous nature of the machinery.

After the hearing on the motions for summary judgment, the trial court ruled the summary judgment was appropriate on the ground that workmen’s compensation benefits are the plaintiff’s exclusive remedy inasmuch as the conduct complained of was not “intentional” within the meaning of LSA-R.S. 23:1032, citing in support the cases of Guidry v. Aetna Casualty and Surety Company, 359 So.2d 637 (La.App. 1 Cir. 1978), writ denied, 362 So.2d 578 (La.1978), and McLaughlin v. Boykin, 127 So.2d 86 (La.App. 4th Cir. 1961).

The right to workmen’s compensation is the exclusive remedy of an injured employee as to his employer. LSA-R.S. 23:1032; Branch v. Aetna Casualty & Surety Company, 370 So.2d 1270 (La.App. 3 Cir. 1979), writ denied, 374 So.2d 660 (La.1979). By the enactment of Act No. 147 of 1976, amending LSA-R.S. 23:1032, the exclusivity of a remedy in workmen’s compensation now covers damage claims against fellow employees, executive officers, directors, stockholders, foremen, etc., unless the damage was caused by an intentional act.

It is the plaintiff’s position that this suit is not covered by the exclusivity of LSA-R.S. 23:1032, as amended, in that the defendants are liable for an intentional tort. The second paragraph of the provision reads:

“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.”

In interpreting LSA-R.S. 23:1032, this Court in Guidry v. Aetna Casualty and Surety Company, supra, at page 638 said:

“To constitute the requisite intent to result in civil liability, the defendant must have entertained a desire to bring about the result which followed and he should have believed that the result was substantially certain to follow.”

There is no merit in the plaintiff’s contention that certain conduct of Clayton’s employees must be construed as satisfying the “intentional act” under the statute. The record reflects that this was not an “intentional act” that caused the accident and resulting injury to Thornhill. There is nothing in the record to indicate that any of these defendants entertained a desire to bring about the result obtained, or could possibly have believed that the result was substantially certain to follow anything they did or did not do. No serious argument can be made that any employee of Clayton connected with this work or accident had any active desire that the accident with resulting injuries should happen. On the contrary, the depositions of Gary Mitchell and Walter Beebe, the supervising employees, positively show that none of these defendants entertained a desire to bring about the result here or that they believed the result was substantially certain to follow. There is no plausible arrangement of the facts that would suggest that the harm in the instant case resulted from an intentional act within the meaning of the statute. Johnson v. Narcisse, 373 So.2d 207 (La.App. 4 Cir. 1979).

We do not agree with the rationale of the Court in Bazley v. Tortorich, 380 So.2d 727 (La.App. 4 Cir. 1980), that the foregoing interpretation of the statute extends “total immunity in tort” to the persons named in the statute, and is thus an unconstitutional interpretation of LSA-R.S. 23:1032, as amended by the 1976 act. The intentional act, as distinguished from the negligent act, has long been recognized as an established category of tort law. Restatement of Torts 2d, Section 8A; Prosser, Law of Torts (West 1964), p. 32.

The Restatement of Torts 2d, Section 8A defines “intent” as follows:

“The word ‘intent’ is used throughout the Restatement of this Subject to denote that the actor desires to cause consequences of his act, or that he believes that the consequences are substantially certain to result from it.”

We believe that Guidry and Johnson, supra, correctly interpret the meaning of “intentional act” as contained in LSA-R.S. 23:1032, and we choose to adhere to those judicial decisions rather than the interpretation placed upon the statute by the Baz-ley Court.

Next, the plaintiff contends that by employing a minor as a general manual laborer at a grain elevator the defendants violated LSA-R.S. 23:151 et seq., commonly known as the Child Labor Law, and that such violation constituted actionable fault within the meaning of LSA-R.S. 23:1032. In effect, the plaintiff argues that civil liability is imposed upon the defendants for their violations of the Child Labor Law.

In support of this contention the plaintiff cites LSA-R.S. 23:161(1) as follows:

“Minors (except those indentured as apprentices in accordance with Chapter 4 of this Title) shall not be employed, permitted or suffered to work:
(1) in oiling, cleaning, or wiping machinery or shafting, or in applying belts to pulleys;”

The plaintiff was not involved in or hired to do any of the jobs described in the quoted provision. The record reveals that Thornhill’s duties were those of a general manual laborer. At the time of his injury the plaintiff was cleaning the walls and floor of the grain bin, which can not be classified as machinery or shafting. The plaintiff was not engaged in oiling, cleaning or wiping the auger assembly. He was not applying belts to pulleys. That type of work was not within the job specifications of a general manual laborer, and he was not performing such work. As described, the job the plaintiff was doing was a normal cleaning operation, by removing grain hulls and trash from the walls of the bin and then sweeping the hulls and residue into the open hatches for removal outside. Such a job is not proscribed by the Child Labor Law. The fact that his cleaning chores brought him in close proximity to the auger does not constitute a violation of the Child Labor Law. It is only the minor under 16 years of age who is not allowed to work about or around power-driven machinery. LSA-R.S. 23:163.

In view of our finding that the defendants did not violate the Child Labor Law, LSA-R.S. 23:151 et seq., it is unnecessary for us to decide whether a violation of the statute would constitute an intentional tort within the meaning of LSA-R.S. 23:1032 and the rationale of Boyer v. Johnson, 360 So.2d 1164 (La.1978).

It is also not necessary for us to rule upon the constitutionality of LSA-R.S. 23:1032, as amended by Act No. 147 of 1976, because the unconstitutionality of the statute was not pleaded in the court below. It is well established that a litigant who fails to plead the unconstitutionality of a statute in the trial court can not raise the constitutional issue in the appellate court. Johnson v. Welsh, 334 So.2d 395 (La.1976), and cases cited therein.

The granting of a motion for summary judgment requires a finding by the court that there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966. We think, as the trial judge obviously did, that the factual assertions in the instant case are undisputed, and support a conclusion that these defendants were guilty of no “intentional act” which could impose civil liability upon them and that they did not hire Thornhill in violation of the Child Labor Law. Thus, summary judgment was proper.

For the above reasons, the judgment of the trial court is affirmed. The appellant is cast for all costs of this appeal.

AFFIRMED.

      . The suit was originally filed by the father of the minor, Robert T. Thornhill, but upon the minor reaching the age of majority, Allen Arthur Thornhill was substituted as party plaintiff. (R117)

      . The defendants can be aligned into two groups: first, the employer and its officers and stockholders, consisting of Clayton Grain Elevator, Inc., and Mayes Brister, Larry W. Robinson and William Moroni (and their insurer); second, the two supervising employees of Clayton, Gary Mitchell and Walter Beebe.

      .See Thornhill v. Black, Sivalis & Bryson, Inc., 385 So.2d 336 (La.App. 1st Cir. 1980) for the decision concerning the suit filed by the same plaintiffs against the manufacturer of the auger, Screw Conveyor Corporation.


author: EDWARDS, Judge.

text:
    Ted V. BAGWELL v. COLEMAN OLDSMOBILE, INC. d/b/a Coleman RV Center and General Motors Corporation.
    No. 13432.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 6, 1980.
    James Holliday, Jr., Baton Rouge, for Ted Bagwell.
    Henry D. Salassi, Baton Rouge, for General Motors Corp.
    Robert Kleinpeter, Baton Rouge, for Coleman Oldsmobile, Inc.
    Richard Creed, Baton Rouge, for Coachmen Industries, Inc.
    Terrence C. Mcrea, Baton Rouge, for Onan Corp.
    Before EDWARDS, LEAR and WATKINS, JJ.
   EDWARDS, Judge.

Coleman Oldsmobile, Inc., d/b/a Coleman RV Center, hereinafter Coleman, appeals a trial court judgment nullifying the sale to plaintiff, Ted V. Bagwell, of a twenty-three foot long motor home and casting Coleman for $20,207.10 in damages and $1,000.00 in attorney fees, subject to a credit of $952.50. We affirm.

With several observations, we adopt the trial court’s excellent written reasons for judgment as our own.

“This is a suit by Ted V. Bagwell (Bag-well) for redhibition and rescission of the sale of a 1976 motor home. By amending petition, Bagwell’s original petition was amended to show that Gulf Service & Supply, Inc., was the registered owner of the motor home and the actual plaintiff herein.
The evidence established that on May 16, 1977, Bagwell entered into a contract with Coleman Oldsmobile, Inc., d/b/a Coleman RV Center (Coleman), for the purchase of a 1976 motor home for a price of Thirty-Two Thousand Six Hundred Seven and 01/100 Dollars ($32,607.01), including taxes, registration and license fees. Bagwell was given credit of Ten Thousand Five Hundred Forty-Nine and 61/100 Dollars ($10,549.61) for the trade of a 1975 Lincoln Continental Mark IV, leaving a net cash price of Twenty-Two Thousand Fifty-Seven and 40/100 Dollars ($22,057.40) which was financed at GMAC.
Bagwell encountered many delays and difficulties initially in obtaining the vehicle even though Coleman knew it was intended to be used on an imminent vacation trip. Problems with the motor home manifested themselves on this initial trip, as well as during Bagwell’s limited use of the vehicle for some 6,350 miles (the vehicle had 1,800 miles on it when plaintiff bought it, and according to Bagwell, it had 8,150 miles on it at the time of the trial); it has been parked since August of 1977 when it was tendered back to Coleman. Bagwell testified that although the Coleman personnel were always agreeable about fixing anything that was wrong, Coleman never, in fact, fixed anything. The difficulties included stained and dirty drapes and carpets which had been observed when the vehicle was bought, but which Coleman agreed at the time of purchase to either satisfactorily clean or replace. According to the testimony of Bagwell, confirmed in large part by the testimony of his wife, on the first trip the vehicle vibrated badly, the air conditioning would not cool the module down, the windshield washers would not work, the vehicle leaked badly, mainly in the left front, and around all the windows, the generator designed to cool the motor home when it was not traveling never functioned properly, the drawers were either too tight or too loose, the steering was loose, the bed was hard to make, the seat was hard to move, the butane tank gauge did not register properly, the load levelers worked in reverse, the CB installed by Coleman did not work properly, and the electrical system did not function properly; in fact, at one time it went out completely. In addition, the radiator mounts for the air conditioning for the vehicle proper broke, causing some radiator damage. Although there is some variance in the testimony, the Court finds that these defects, cumulatively at least, were such that they rendered the use of the vehicle so imperfect that Bag-well would not have bought same had he known thereof. For that reason, the Court will order the sale between Coleman and the plaintiff rescinded and fix the amount of plaintiffs recovery at $20,-207.10, together with reasonable attorney’s fees, which the Court fixes at $1,000.00. This amount is subject to a credit of $952.50, which the Court fixes as the reasonable value of plaintiff’s use of the vehicle for some 6,350 miles.
The liability of the other parties to plaintiff and to each other is a different matter. The evidence shows that the vehicle in question was a 23-foot motor home. It was fabricated in large part by third party defendant Coachman (sic) Industries, Inc. (Coachman) at its plant in Indiana, for which Coleman was billed $7,421.30 by Coachman. Prior to that fabrication, General Motors Corporation (GMC) sold the chassis, engine, driver compartment, body shell, and power dash to Martin GMC Trucks, Inc. (Martin), of Lake Charles, Louisiana, an independent authorized GMC dealer. Martin in turn sold the transmode van to Coleman, but it was shipped directly to Coachman. This was apparently an accommodation to Coleman and to Coachman inasmuch as Coleman was not an authorized GMC dealer. The GMC components are collectively described in the industry as a ‘tran-smode.’ The GMC invoice for the tran-smode reflects Martin GMC’s request that the transmode be shipped directly from GMC to Coachman’s Jimmy Division, located in Elkhart, Indiana, but it was invoiced to and paid for directly by Coleman. Upon receiving the unit at its factory, Coachman added some $7,400.00 worth of components to the transmode. The largest addition was Coachman’s 23-foot transmode package, a package which included the interior fittings for the home, such as the refrigerator, seats, drapes, carpeting, tables, drawers and cabinets, paneling, etc. Coachman also cut holes in the side of the home and installed their window package for GMC transmodes. In addition, Coachman supplied a second air conditioner, a snack tray, an auxiliary battery, and a generator which powered all accessories. Many of the components utilized by Coachman in fabricating the unit were secured from third party manufacturers, which required extensive wiring, rewiring, plumbing and fitting to install. The accessory generator was purchased from third party defendant Onan Corporation, which was granted a severance from this trial. After Coachman assembled the unit, it invoiced the completed unit to Coleman, who was an authorized Coachman dealer. Coleman then sold the motor home to Bagwell.
Prior to the sale to Bagwell, the vehicle had been on Coleman’s lot for some nine months, during which time some 1,800 miles were placed on it. The unit had incurred some water damage prior to the time it was sold to plaintiff and had been damaged on the lot to the extent that the replacement of two tires, leak caulking, a window and certain repair work and repainting to one side was required. The vehicle was sold as a new unit to Bagwell, although he was aware of the dirty and stained condition of the carpets and the drapes and knew that the vehicle had 1,800 miles on it. From the preponderance of the evidence, the Court is satisfied that the defects were in existence when the vehicle was sold to plaintiff. However, it is unable to conclude from this evidence the cause of or responsibility for the defects vis-a-vis Coleman, GMC or Coachman. It is significant, the Court believes, that the vehicle had been used to the extent previously referred to and to the extent that, according to Coleman’s former general manager of the RV section, certain alignment and balancing to alleviate wear on the front tires was required, that the Onan generator never worked properly, that Coleman had no qualified mechanic for GMC maintenance, that no warranty claims were made against Coachman or GMC, that repairs had been made improperly, apparently by Coleman personnel, to the dining room table, and Coleman was aware of many of the defects at the time of sale. Under the facts developed in this case, there, of course, can be no presumption that the defects for which the Court has granted redhibition were defects which existed at the time of the delivery of the vehicle to Coleman. Coupled with the fact that Coleman made no serious effort to correct the defects or to call upon either Coachman or General Motors for assistance during the three months prior to the tendering of the vehicle to Coleman, the Court believes that it would not be proper to grant indemnity to Coleman against GMC or Coachman. Perrin v. Read Imports, Inc. (La.App. 4th Cir., 1978) 359 So.2d 738, Daigle v. Robinson Brothers, Inc. (La.App. 1st Cir., 1979) 368 So.2d 186. For the same reasons, the reciprocal third party petitions of GMC and Coachman should be dismissed.
Judgment will be signed accordingly.” (footnotes omitted)

On appeal, Coleman specifies as errors the trial court’s factual findings and dismissal of Coachmen Industries, Inc. and General Motors Corporation as third party defendants.

Despite Bagwell’s knowledge that some defects existed at the time of sale and despite indications in the record, contrary to the trial court’s findings, that the motor home had been driven by Coachmen to Coleman and had not been driven for 1,800 miles by Coleman, the record overwhelmingly supports a finding that latent defects were so numerous as to justify rescission of the sale.

The trial court found that Coleman “was aware of many of the defects at the time of sale.” This finding, with which we agree, justified the trial court’s award of attorney fees.

A careful reading of the entire record convinces us that not only was Coleman technically in bad faith at the time of the sale (and consequently unable to seek indemnity from either Coachmen or General Motors on the basis of LSA-C.C. Art. 2531), but also that Coleman’s acts after the sale showed continuing bad faith.

Coleman ignored plaintiff’s repair request letters throughout the summer of 1977. Only one of three was even answered. Simple repairs were never made. The rug was never cleaned as promised. The drawers were never fixed. The air-conditioning vents were never cleared. And, contrary to Coleman’s claims, the windshield wipers were not properly repaired. On one occasion, Coleman held the motor home for three weeks without making any repairs.

At trial, Coachmen testified that it stood ready to repair any defective materials or workmanship for which it was responsible. Yet, Coleman never sought Coachmen’s assistance. In fact, Coachmen never heard of any problems until February 2, 1979, seventeen months after suit was filed. The trial court properly denied Coleman’s claim for indemnity.

For the foregoing reasons, the trial court judgment is affirmed. All costs, both trial and appellate, are to be paid by Coleman Oldsmobile, Inc.

AFFIRMED.

      . LSA-C.C. Art. 2545 provides:
      “The seller, who knows the vice of the thing he sells and omits to declare it, besides the restitution of price and repayment of the expenses, including reasonable attorneys’ fees, is answerable to the buyer in damages.”


text:
    Vera Jenkins MILLER and Ivy Lea Miller v. Ralph SMITH, d/b/a Skinneys, and Aetna Casualty and Surety Co.
    No. 13521.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 6, 1980.
    Rehearing Denied Dec. 15, 1980.
    Writ Granted Feb. 6, 1981.

      Paul H. Due, Baton Rouge, William M. Quin, Kentwood, for plaintiffs.
    Iddo Pittman, Jr., Hammond, for defendants.
    Before EDWARDS, LEAR and WATKINS, JJ.
   EDWARDS, Judge.

Defendants, Ralph Smith, d/b/a Skin-neys, and Aetna Casualty and Surety Co., hereinafter collectively called Skinney’s, appeal a trial court judgment awarding damages to Vera Jenkins Miller and Ivy Lea Miller. We reverse.

On the evening of May 13,1977, plaintiffs went to dinner at Skinney’s, a combination restaurant and lounge with a dance floor. They ordered a Wop salad and fried chicken. While eating, they observed Dominick Sassone, the bartender, spreading wax on the dance floor adjacent to their table. After Mrs. Miller had taken a few bites from a drumstick, a one-man band began to play “Today I Started Loving You Again.” Mrs. Miller characterized the song as slow. The Millers got up and began to dance. Mrs. Miller found that the dance floor was “slippery, unusually slippery.” Mr. Miller noticed “a spot if you put your foot in it it’d just take you down — I mean, it was real slippery.”

Despite their observation of the floor’s condition, the Millers continued to dance until the song ended. Mrs. Miller testified she continued to dance because “It was a slow song” and “I didn’t know I was going to fall.”

After the dance was over, plaintiffs decided to leave the dance floor because, according to Mrs. Miller, “it was slippery, too slippery for us.” As they headed towards their table, plaintiffs met Charles Addison and stopped momentarily to speak to him. Then, without saying anything to Mr. Miller, Mrs. Miller again headed for their table. Mr. Miller “told her to watch it” but after they had each taken a step or so, she fell and suffered a wrist fracture.

Plaintiffs brought suit against Skinney’s and, following trial, judgment was rendered in Vera Miller’s favor in the amount of $125,000.00 and in Ivy Miller’s favor for $2,719.05. All costs were assessed against defendants who have appealed suspensively.

Appellants specify that the trial court erred in:

1. making a grossly excessive award;
2. finding Skinney’s liable at all;
3. failing to find Vera Miller contributo-rily negligent; and
4. failing to find that plaintiffs had assumed the risk.

At our first reading, the trial court’s written reasons for judgment seemed unusual and unlike the reasons for judgment generally found in a record. On oral argument, counsel for defendants-appellants raised the issue of authorship. Counsel for plaintiffs-appellees voluntarily acknowledged having written the reasons for judgment.

As an additional articulation of plaintiffs’ case, we find the reasons for judgment to be excellent. We are, however, deprived of the court’s own thoughts which often prove most valuable.

When a trial judge has provided no reasons for judgment, a reviewing court must divine them. When reasons are provided, a reviewing court must be assured that the thinking process was that of the judge and not an advocate in the lawsuit. It is one thing for victorious counsel to prepare a judgment comprised of the stark, final determinations of a case. It is quite another for counsel to present as the inner thoughts of a judge what amounts to a well-written brief.

In the present case, the reasons for judgment are counsel’s, not the judge’s. Counsel, in brief, repeatedly cites his own written reasons, a highly self-serving act. Contrary to our general practice, we cannot place any real value on the written reasons presented.

Appellants’ claim that the amount awarded was grossly excessive appears valid. Because of our decision, however, there is no reason to review quantum.

Kavlich v. Kramer, 315 So.2d 282 (1975), and Gonzales v. Winn-Dixie Louisiana, Inc., 326 So.2d 486 (1976), changed the law in slip and fall cases. Once the plaintiff establishes a prima facie case, the burden of proof then shifts to the defendant to go forward with the evidence to exculpate himself from the presumption that he was negligent. To establish a prima facie case, the plaintiff must show that he slipped, fell and was hurt because of a dangerous condition. In the present case, plaintiffs have not proven a prima facie case. While it is clear that Mrs. Miller slipped, fell and was hurt, it is not clear and was not proved that the dance floor was in a dangerous condition.

Dance floors are intended to be slippery to a degree, more so than the floors of supermarkets. The mere slipperiness of a dance floor is not negligence per se. Hammonds v. Jackson, 132 Ga.App. 528, 208 S.E.2d 366 (Ga.App.1974); Nolan v. North Hills Golf Club, Inc., 21 App.Div.2d 695, 250 N.Y.S.2d 471 (1964). The court in Robinson v. Ipswich Post 1093, V. F. W., Inc., 343 Mass. 771, 178 N.E.2d 24 (1961), stated that a “highly polished surface is to be expected on dance hall floors.”

Only when a dance floor is excessively slippery or when dance wax has been improperly applied will the floor be found unreasonably dangerous. Howard v. Johnoff Restaurant Co., 312 S.W.2d 55 (Mo.1958); Durden v. Dranetz, 99 So.2d 716 (Fla.App.1958).

In the present case, there is no proof that dance floor wax was improperly applied. Nor is there proof that the dance floor was excessively slippery.

Mrs. Miller testified that she saw Dominick Sassone, the bartender, “shaking it (the wax) or throwing it out of a” container. Mr. Miller related that Sassone had dipped wax out of a cigar box. Shirley Blades “saw the wax being sprinkled.” Wilhelmina Raley, a waitress at Skinney’s, testified that when she applied dance wax, she sifted it in her hand and then “would just throw it around.” She also stated that in her opinion, at times prior to plaintiff’s accident, Sassone used too much wax and that, contrary to her own mode of spreading wax, Sassone would “just take it and throw it out.” Miss Raley did not, however, see Sassone apply any dance wax on the night of plaintiff’s fall.

There is no meaningful difference in any of the above testimony insofar as the manner Sassone spread dance wax is concerned. Whether he shook it or threw it out of a container, dipped it from a cigar box, sprinkled it, or, like Miss Raley, “just threw it out,” the fact remains that he spread dance wax on the floor to be spread by the dancers.

Sassone’s method of distributing wax is not negligent. Fishman v. Brooklyn Jewish Center, 234 App.Div. 319, 255 N.Y.S. 124, appeal dismissed without opposition 263 N.Y. 685, 189 N.E. 757 (1932), held that the scattering of wax particles intended to be spread by dancers themselves in the course of dancing could not be regarded as an uneven application of wax constituting actionable negligence. See also Jones v. Benevolent Protective Order of Elks, 17 Pa.D. & C.2d 233 (1958) and Kalinowski v. Young Women’s Christian Association, 17 Wash.2d 380, 135 P.2d 852 (1943).

Mr. and Mrs. Miller testified that the dance floor was excessively slippery. Mrs. Miller described her fall: “I could see a shadow, I don’t know—after I fell I thought that must’ve been what it was, wax, it was a shadow of something a little dark, and by then I had had my foot up and I put it on down right into where he said. My foot went out from under me.”

Ollie Dell McNaff Gore and Shirley Blades also testified that the floor was too slippery. However, Ralph Smith, the proprietor, stated that wax was never spread until requested by the customers and Miss Raley noted that if the floor was not “slippery and slick,” people would ask for wax because they couldn’t dance without it.

Clearly, the dance floor was not excessively slippery on May 13, 1977. Only Mrs. Miller fell. Appellees cite Rosensweig v. Travelers Insurance Company, 333 So.2d 334 (La.App. 4th Cir. 1976), for the proposition that “a two foot square, very slippery area on a ballroom floor is an unreasonable hazard.” We agree. However, in Rosen-sweig, a woman slipped twice on the same spot and told a person in authority, after which nothing was done for over one-half hour. The plaintiff then slipped and fell and two friends coming to his aid likewise slipped and fell. Five slips in addition to a half-hour’s inaction conclusively proved the defendant liable. In the present case, only one person slipped and her testimony manifestly failed to prove either a foreign substance on the floor as in Rosensweig or a state of excessive slipperiness. Plaintiff’s fall alone cannot create a presumption of defendant’s fault. Bueche v. Alvin Roys, Inc., 348 So.2d 731 (La.App. 1st Cir. 1977).

Plaintiff’s explanation of why she fell is remarkably similar to that found insufficient to fix liability in Hammonds v. Jackson, supra. In Hammonds, plaintiff slipped on a “slick spot” which at “this one spot was—must have been mighty slippery, heavy wax or something(.)” In the present case, plaintiff saw “a shadow of something a little dark(.)” No wax was ever found, however. This statement, even taken with the explanation that the shadow was wax which was dispersed when plaintiff fell, is simply not enough to establish a dangerous condition.

A careful examination of the entire record convinces us that plaintiffs have failed to establish a prima facie case that Mrs. Miller fell because of a dangerous condition. There must be more than mere recitals of slipperiness plus the fact of a fall. Everyone who goes onto a dance floor takes some chance of slipping. Hammonds v. Jackson, supra; Durden v. Dranetz, supra. Plaintiffs simply did not carry their burden of proof. For the trial court to have found otherwise (as his judgment, without considering the “reasons,” indicates he must have) was manifest error.

For the foregoing reasons, the judgment appealed from is annulled and reversed. Plaintiffs’ petition is dismissed and all costs, both trial and appellate, are to be paid by Vera Jenkins Miller and Ivy Lea Miller.

REVERSED.

      . Skinneys was the named defendant. In actuality, the establishment involved was Skin-ney’s.

      . That slipperiness of a floor per se need not result in a proprietor’s liability is shown by Bueche v. Alvin Roys, Inc., 348 So.2d 731 (La. App. 1st Cir. 1977). In that case, plaintiff slipped on the moisture on a steam room floor. The court held that there was no presumption of fault of the defendant simply because plaintiff was hurt, that the accident by itself did not establish the fact of an unusually slippery or unsafe condition, and that “ ‘wet’ was the normal condition of the steps during business hours.” See also Gatti v. World Wide Health Studios of Lake Charles, Inc., 323 So.2d 819 (La.App. 2d Cir. 1975).


text:
    Susan A. ALTAZIN v. Joseph PIRELLO.
    No. 13613.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 6, 1980.
    Rehearing Denied Dec. 15, 1980.
    J. Donald Cascio, Denham Springs, for appellant.
    R. J. Calongne, Jr., Baton Rouge, for appellee.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

Susan A. Altazin brought suit against Jasper Pirello and Pirello Properties, Inc., seeking $70 in unused rent, $50 in rent deposit, $200 in damages, attorney fees and costs. From a trial court judgment awarding $50 in rent deposit but denying all her other claims, Altazin appeals. We reverse in part.

In December of 1975, Susan Altazin signed a rental agreement to lease apartment 209 in the Drusilla Apartments in Baton Rouge. Apartment 209 was not available so Altazin accepted apartment 207. The agreement was executed under the name Susan Dupaquier, since at that time Miss Altazin anticipated marrying Gary Dupaquier. A rent deposit of $50, required by Drusilla Apartments rule number 6, was paid by check by Mrs. J. I. Altazin, plaintiff’s mother.

Subsequently, plaintiff decided not to marry Dupaquier and she informed the Drusilla manager. Her name was changed to Altazin on at least two documents including the rental agreement. Paul Pirello, son of the defendant, admitted records of the apartment complex reflected Altazin’s name change. Evidence admitted at trial substantiates this.

Following a fire in apartment 207, plaintiff moved into apartment 232. On August 10, 1977, Altazin received instructions from Drusilla’s manager “to vacate your apartment by 8/31/77, due to repairs needed in this sectionQ” Plaintiff moved out by August 15, 1977, and was informed by the manager that she would be refunded both her deposit and one-half month’s rent ($70). The manager later informed plaintiff that she had not posted a deposit and was due no refund.

Plaintiff sought aid from the Consumer Protection Center which wrote defendant. By letter, Pirello denied ever having received a deposit from Altazin and, in addition, falsely accused plaintiff of starting the fire in apartment 207.

Plaintiff then wrote Pirello a letter of demand seeking her rent and deposit. Pi-rello received the letter November 23,1977, but neither sent the funds nor answered with itemized reasons for failing to do so. Plaintiff subsequently filed this suit.

Clearly, plaintiff is owed $70 in unused rent. Defendant’s agent instructed Altazin to vacate “by” August 31, 1977. Therefore, plaintiff was free to leave anytime between August 10, 1977, the day she received notice, and August 31. Whatever rent remained unused must be refunded.

At trial, plaintiff was awarded $50 in rent deposit. Her claims for statutory damages and attorney fees were denied in oral reasons by the trial court because

“one is not entitled to a windfall because of a mistake — mistake not necessarily having been brought on in toto by the defendants themselves. The Court feels that part of the mistake can be attributed to the plaintiff. The plaintiff assumed the name of Dupaqueir (sic). Upon the initial application for the apartment. Subsequently went to change her name from Susan Dupaqueir to Altazin. The ledger records of the apartment complex shows that a Dupaqueir on 12/27 rented an apartment from the apartment complex in question tendered a Hundred and Twenty-Five Dollars plus a Fifty Dollar deposit. Said ledge shows a transfer to 207 . of Fifty Dollars on that — on that.deposit. The Court does not feel that the apartment complex has been willfull in its failure to turn over a Fifty Dollar deposit.”

Under the applicable statutes, LSA-R.S. 9:3251-54, plaintiff is entitled to her rent deposit, damages and attorney fees.

Contrary to the trial court, we find that defendant’s confusion regarding plaintiff’s deposit is entirely its own fault. No apartment was rented without a deposit. Defendant accepted and cashed plaintiff’s deposit check. Any errors in record keeping were solely defendant’s fault and not due to plaintiff’s name change.

. [2-4] The purpose of LSA-R.S. 9:3251 et seq. is to provide tenants with a mechanism to recover rent deposits and to prevent the arbitrary withholding thereof. Calix v. Whitson, 306 So.2d 62 (La.App. 4th Cir. 1974); Cantelli v. Tonti, 297 So.2d 766 (La. App. 4th Cir. 1974). When a landlord cites specious or arbitrary and capricious reasons for withholding a deposit, the statutes shall apply. Likewise, when the reasons for withholding a deposit are simply unjustifiable or clearly wrong, the statutes will provide relief. Even if there is a valid dispute over a lease, the lessor must comply with the statutes or suffer the penalties provided. Bradwell v. Carter, 299 So.2d 853 (La.App. 1st Cir. 1974); Moore v. Drexel Homes, Inc., 293 So.2d 500 (La.App. 4th Cir. 1974), writ denied 295 So.2d 812 (1974).

At all times defendant owed plaintiff her $50 rent deposit. The willful refusal to pay same requires the imposition of $200 in statutory damages. Furthermore, plaintiff had no way to recover her deposit save by contacting a lawyer and filing suit. LSA-R.S. 9:3253 allows attorney fees to be awarded. Without this provision, plaintiff would possess a legal right economically unfeasible to pursue. Calix v. Whiteson, supra; Cantelli v. Tonti, supra. Plaintiff’s attorney fees will be fixed at $1,000.

Defendant’s contention that his answer to the Consumer Protection Center sufficed as an itemized statement in reply to plaintiff’s letter of demand is incorrect. R.S. 9:3251 requires that the lessee, not some organization which in no way is plaintiff’s agent, be given notice. Furthermore, unjustified reasons for retaining a deposit, regardless of their specificity, can never satisfy R.S. 9:3251.

For the foregoing reasons, the judgment appealed from is affirmed, insofar as plaintiff was awarded $50 in rent deposit. The judgment is otherwise reversed and there is judgment in favor of Susan A. Altazin and against Jasper Pirello and Pirello Properties, Inc., for $200 in statutory damages, $1,000 in attorney fees and $70 in unused rent. The total judgment is therefore $1,320. All costs of these proceedings, both trial and appellate, are to be paid by Jasper Pirello and Pirello Properties, Inc.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.

      . Suit was initially brought against Joseph Pi-rello. However, answer was made and the suit was defended by Jasper Pirello.

      . At trial, Captain McCoy of the Baton Rouge Fire Department stated that the fire originated in an air conditioning unit and was not plaintiffs fault.

      .LSA-R.S. 9:3251.
      “Any advance or deposit of money furnished by a tenant or lessee to a landlord or lessor to secure the performance of any part of a written or oral lease or rental agreement shall be returned to the tenant or lessee of dwelling premises within one month after the lease shall terminate, except that the landlord or lessor may retain all or any portion of the advance or deposit as is reasonably necessary to remedy a default of the tenant or to remedy unreasonable wear to the premises. If any portion of an advance or deposit is retained by a landlord or lessor, he shall forward to the tenant or lessee, within one month after the date the tenancy terminates, an itemized statement accounting for the proceeds which are retained and giving the reasons therefor. The tenant shall furnish lessor a forwarding address at the termination of the lease, to which such statements may be sent.
      The foregoing provisions shall not apply when the tenant abandons the premises, either without giving notice as required, or prior to the termination of the lease.”
      LSA-R.S. 9:3252.
      “The willful failure to comply with R.S. 9:3251 shall give the tenant or lessee the right to recover actual damages or two hundred dollars, whichever is greater, from the landlord or lessor. Failure to remit within thirty days after written demand for a refund shall constitute willful failure.”
      LSA-R.S. 9:3253.
      “In an action brought under R.S. 9:3252, the court may in its discretion award costs and attorney’s fees to the prevailing party.”
      LSA-R.S. 9:3254.
      “Any waiver of the right of a tenant under this part shall be null and void.”