author: McCORD, Judge.

text:
    STATE of Florida, Appellant, v. John Edward RAPP, Appellee.
    No. PP-93.
    District Court of Appeal of Florida, First District.
    Nov. 7, 1980.

      Jim Smith, Atty. Gen., and Charles A. Stampelos, Asst. Atty. Gen., for appellant.
    No Appearance for appellee.
   McCORD, Judge.

The state appeals from an order suppressing evidence seized from the trunk of appel-lee’s car. We reverse.

In response to a call reporting that a man was breaking into a car at a Ramada Inn parking lot, Deputy Bradley arrested appel-lee Rapp when he caught him in the act of drilling the lock on the trunk of a car. After the arrest, Bradley was approached by another man who told him that he was spending the night in his camper in the parking lot; that he had heard someone drilling around a car and had observed Rapp breaking into three different ears; that Rapp had taken wrapped Christmas packages out of the cars and placed them in a Lincoln Continental automobile, which was parked in the same parking lo.t. Bradley observed the Lincoln, which was parked with its engine running within 15 to 20 feet from the spot where he had apprehended appellee. He also noticed that the trunk locks of two other cars parked nearby had been drilled out. He and two other deputies approached the Lincoln and viewed therein wrapped Christmas packages, clothing and tools which included screwdrivers and hammers. The officers then, without a warrant, searched the interior and the trunk of the automobile, finding wrapped Christmas gifts in both places.

Rapp was transported to jail and later charged with several counts of grand theft and possession of burglary tools. He filed a motion to suppress all the evidence found in the automobile. The trial court denied the motion as to all items which were in plain view in the passenger compartment but granted the motion as to all items contained in or removed from the trunk of the car because “there were no exigent circumstances to justify a warrantless search of the trunk.”

We find that the automobile exception to the search warrant requirement applies in this case and, therefore, the search of the trunk was valid. Where probable cause exists to believe contraband will be found therein and where exigent circumstances exist, the search of an automobile will be upheld. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); U. S. v. Milhollan, 599 F.2d 518 (3d Cir. 1979), cert. denied, 444 U.S. 909, 100 S.Ct. 221, 62 L.Ed.2d 144 (1979).

In the case sub judice, the record shows clearly that the police officers had probable cause to believe that Rapp’s automobile trunk contained items stolen from other cars in the parking lot. They had been told by an eyewitness that Rapp had stolen packages from the other cars and placed them in the Lincoln, and they saw wrapped Christmas packages in plain view in the passenger compartment of the Lincoln. At that point, they had probable cause to believe that the trunk of the automobile also contained stolen goods. Compare United States v. Soriano, 497 F.2d 147 (5th Cir. 1974).

The facts also establish exigent circumstances. The fact that Rapp’s car was in a parking lot rather than on the open road is immaterial because it was “movable”-its engine had even been left running. The officers had no way of knowing whether Rapp had a friend or accomplice who would have removed the car from the premises after the officers left to escort Rapp to the police station. While no one disputes the officers’ authority to immobilize the car or to seize it until a warrant could be obtained to continue the search, the officers were not required to pursue such course. The Supreme Court in Chambers v. Maroney saw little difference between seizing a car while obtaining a warrant and searching the car immediately, given probable cause to search. The Chambers court said:

Arguably, because of the preference for a magistrate’s judgment, only the immobilization of the car should be permitted until a search warrant is obtained; arguably, only the “lesser” intrusion is permissible until the magistrate authorizes the “greater.” But which is the “greater” and which is the “lesser” intrusion is itself a debatable question and the answer may depend on a variety of circumstanc-. es. For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment.

Compare also United States v. Newbourn, 600 F.2d 452 (4th Cir. 1979), which upheld the search of the trunk of a car which was parked on the shoulder of a public road. On the basis of the above authorities, the warrantless search of Rapp’s car trunk was within constitutional bounds and, therefore, valid.

REVERSED.

LARRY G. SMITH and WENTWORTH, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    R. T. C., a child, R. L. H., a child, v. STATE of Florida.
    Nos. SS-302, SS-303.
    District Court of Appeal of Florida, First District.
    Nov. 7, 1980.
    Louis G. Carres, Asst. Public Defender, Tallahassee, for appellants.
    Jim Smith, Atty. Gen., David P. Gauldin, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

AFFIRMED on the authority of State v. J. R. M., 388 So.2d 1227, (Sup.Ct. 1980); R. P. v. State, 389 So.2d 658 (1st DCA 1980).

MILLS, C. J., and McCORD and THOMPSON, JJ., concur.


text:
    ACTIVE ENTERPRISES et al., Appellants, v. Gordon W. CAVNAR, Appellee.
    No. UU-22.
    District Court of Appeal of Florida, First District.
    Nov. 7, 1980.
    Richard H. Gaunt, Jr., West Palm Beach, for appellants.
    Harry Goodmark, West Palm Beach, for appellee.
   ON MOTION TO RELINQUISH JURISDICTION

PER CURIAM.

On August 18, 1980, appellee filed a motion asking this court to relinquish jurisdiction to the Deputy Commissioner to determine whether a change of doctors should be authorized. On August 21, we relinquished jurisdiction for thirty days for the sole purpose of having a determination made on the change of doctors. On September 20, jurisdiction revested in this court.

On October 3, 1980, appellee filed a motion requesting that we extend the time of jurisdictional relinquishment through October 15, 1980, because “. . . The hearing could not be held until October 1, 1980.”

Since the briefs have been filed and the cause is ready for disposition, we deny the current motion. However, our retention of jurisdiction over this appeal does not divest the deputy of jurisdiction to determine the issue sought to be raised before him.

The Deputy Commissioner has jurisdiction to consider issues that are not related to the issues pending on appeal. The filing of the notice of appeal vests jurisdiction in this court “. . . to the extent of the issues raised.” Rule 21(a) Fla.W.C.R.P. During the pendency of the appeal, the deputy retains jurisdiction “.. . to enter orders on all matters of the claim which have not been appealed.” Rule 20(b)(3), Fla.W.C.R.P.

In the instant case, the only issue on appeal is whether the attorney’s fee awarded is excessive. The motion to relinquish jurisdiction indicates that the only issue sought to be raised before the deputy is whether a change of doctors is warranted. Therefore, our jurisdiction over this appeal does not preclude the deputy from assuming jurisdiction to determine the latter issue.

WENTWORTH and JOANOS, JJ., and WOODIE A. LILES (Ret.), Associate Judge, concur.


author:
PER CURIAM.
      THOMPSON, Judge,

text:
    David Preston OUTZEN, Appellant, v. Lois Jenkins BOWEN, York C. Bowen, IV, International Service Insurance Company and Jack Eckerd Corporation, Appellees.
    No. UU-37.
    District Court of Appeal of Florida, First District.
    Nov. 7, 1980.
    Woodburn S. Wesley, Jr. of Cotton, Wesley & Pouche, Shalimar, for appellant.
    J. Dixon Bridgers, III of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Pensacola, for Jack Eckerd, appellee.
   PER CURIAM.

Outzen appeals from a summary judgment granted in favor of appellee, Jack Eckerd Corporation, urging there are genuine issues of material fact to be resolved by a jury. We agree and reverse.

The facts as presented give rise to a jury question on the issue of whether Ms. Bowen was within the scope of her employment when she had the automobile accident. Although the facts themselves are not in conflict, they will permit of different reasonable inferences. Jacobi v. Claude Noian, Inc., 122 So.2d 783 (Fla. 1st DCA 1960), Ham v. Heintzelman’s Ford, Inc., 256 So.2d 264 (Fla. 4th DCA 1971). We cannot agree that movant was entitled to judgment as a matter of law. Cohen v. Sloan, 190 So. 14 (Fla.1939), Swartzer v. Food Fair Stores, Inc., 175 So.2d 36 (Fla.1965), Thurston v. Morrison, 141 So.2d 291 (Fla. 2d DCA 1962), Whetzel v. Metropolitan Life Insurance Company, 266 So.2d 89 (Fla. 4th DCA 1972).

Accordingly, the summary judgment is reversed and remanded for a full trial on the issue.

MILLS, C. J., and McCORD, J., concur.

THOMPSON, J., dissents.

THOMPSON, Judge,

dissenting:

There was no issue as to any material facts and no different reasonable inferences could be drawn from those facts. The trial judge correctly entered summary judgment in favor of Jack Eckerd Corporation holding as a matter of law the accident did not arise in the course of and the scope of her employment.

Accordingly, I would affirm the summary judgment entered by the trial judge.


author: GRIMES, Judge.

text:
    Monica Faye MIZE, Petitioner, v. STATE of Florida, and/or Honorable Grissim Walker, Respondent.
    No. 80-1509.
    District Court of Appeal of Florida, Second District.
    Nov. 7, 1980.
    Elliott C. Metchalfe, Jr., Public Defender, and James E. Slater, Asst. Public Defender, Sarasota, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and James S. Purdy, Asst. Atty. Gen., Tampa, for respondent.
   GRIMES, Judge.

This cause is before the court on a petition for certiorari to review an order denying defendant Mize’s motion for an adversary preliminary hearing. A petition for writ of certiorari is a proper vehicle for review of an order denying such a motion. Bell v. State, 361 So.2d 818 (Fla. 4th DCA 1978).

The resolution of this matter depends upon an interpretation of Florida Rule of Criminal Procedure 3.131(b)(1), which reads as follows:

(1) When Applicable. A defendant who is not charged in an information or indictment within 21 days from the date of his arrest or service of the capias upon him shall have a right to an adversary preliminary hearing on any felony charge then pending against him. The subsequent filing of an information or indictment shall not eliminate a defendant’s entitlement to this proceeding.

A Florida warrant was issued for the arrest of petitioner on May 20, 1980. The following day, police in Houston, Texas, arrested her as a fugitive from justice. She waived extradition and was transported from Texas to Sarasota, Florida, on May 30, 1980. On June 20, 1980, thirty days after her arrest in Houston, but only twenty-one days after her return to Florida, petitioner was indicted on the charge of first degree murder.

The state argues that although the indictment was not filed within twenty-one days of petitioner’s original arrest, the time referred to in Rule 3.131(b)(1) did not begin to run until the petitioner returned to Florida. However, the rule only refers to the defendant’s arrest not the defendant’s presence within the state. Since the rule does not mandate that the preliminary hearing be held within twenty-one days, the hearing can await the defendant’s return. The state always retains the means to foreclose the right to a preliminary hearing by filing the information or obtaining an indictment within twenty-one days of the arrest.

The state’s contention that petitioner was arrested for the separate crime of being a fugitive from justice rather than for murder is unpersuasive. Clearly, the Florida warrant was the only basis for her arrest by the Texas authorities.

We hold that petitioner is entitled to an adversary preliminary hearing. We quash the order denying petitioner’s motion and remand the case for further proceedings consistent with this opinion.

HOBSON, Acting C. J., and RYDER, J., concur.


text:
    STATE of Louisiana v. Debbie COOPER.
    No. 80-K-1920.
    Supreme Court of Louisiana.
    Oct. 20, 1980.
    William L. Brooks, Amite, Indigent Defender Program, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Duncan Kemp, Dist. Atty., Johnny S. McGary, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-respondent.
   PER CURIAM.

On February 17, 1978, relator Debbie Cooper was charged by bill of information with theft, a violation of La. R.S'. 14:67. On July 22, 1980, after more than two years had elapsed without the case’s having been brought to trial, relator filed a motion to quash, asserting that prescription had run on the prosecution under Louisiana Code of Criminal Procedure Article 578. Based on its conclusion that the defense had filed a preliminary plea that suspended the running of the time limitation , the trial court denied the motion to quash. We granted writs to consider the correctness of the ruling.

What the trial court regarded as a “preliminary plea” was a motion filed by former defense counsel to withdraw as counsel of record. Although cognizant of this Court’s holding that such a motion would not suspend prescription, State v. Carr, 271 So.2d 871, (La. 1973), the trial court found that here counsel had employed the motion to withdraw as a stratagem for effecting a continuance, thus altering its fundamental character. Were this the case, prescription would indeed have been suspended. However, the record does not support the court’s factual finding that counsel withdrew to force a continuance of the trial. Despite counsel’s release from his representation on November 21, 1979, he appeared in court with relator on December 10, 1979, the next scheduled trial date; and there is nothing in the record to contradict relator’s testimony that she and counsel were prepared on that occasion for trial, which in her account was continued due to the state’s unpreparedness. In fact, relator maintained that she had been present with counsel for all scheduled trial dates until July of 1980. By that time, when retained counsel first made his withdrawal known and occasioned a delay of the trial, prescription had already run.

Accordingly, as there was no suspension of the two-year period of limitation, the ruling denying relator’s motion to quash is reversed, and the motion to quash is granted; the defendant is ordered released.

      . Article 578 provides that in non-capital felony cases no trial shall be commenced after two years from the date of institution of the prosecution.

      . La. C.Cr.P. art. 580 provides: “When a defendant files a motion to quash or other preliminary plea, the running of the periods of limitation established by Article 578 shall be suspended until the ruling of the court thereon; but in no case shall the state have less than one year after the ruling to commence the trial.”

      . The assistant district attorney prosecuting the case confirmed that retained counsel continued to act on relator’s behalf, not disclosing his withdrawal until July 1980.


text:
    Ray H. LEWIS v. TOLEDO NATIONAL INSURANCE COMPANY et al.
    No. 80-C-1787.
    Supreme Court of Louisiana.
    Oct. 24, 1980.
   In Re: Ray H. Lewis, applying for Certiorari, or writ of review, to the Court of Appeal, First Circuit, Tangipahoa, No. 13509; Samuel T. Rowe, Judge Presiding, 388 So.2d 121.

Granted. This Court cannot determine, from the opinion of the Court of Appeal, 388 So.2d 121, whether the judgment of the trial judge is “clearly wrong.” Arceneaux v, Domingue, 365 So.2d 1330 (La.1978). Neither the factual conclusions nor the evi-dentiary bases for the facts supporting the judgment are disclosed.

The case is remanded to the Court of Appeal for a review of the law and facts, La.Const. Art. 5, § 10 (1974), sufficient for us to determine whether the judgment complained of is probably correct.

Remanded to Court of Appeal.

WATSON and LEMMON, JJ., would deny the writ.


author: LEMMON, Justice,

text:
    STATE of Louisiana Through the DEPARTMENT OF HIGHWAYS v. Gibson J. AUTIN, Jr., et al.
    No. 80-C-2243.
    Supreme Court of Louisiana.
    Oct. 24, 1980.
   In Re: Gibson J. Autin, Jr., applying for Certiorari, or writ of review, to the Court of Appeal, First Circuit, No. 13517, Parish of Terrebonne; 388 So.2d 76.

Denied.

.CALOGERO, J., would grant the writ.

LEMMON, J., concurs in the denial for reasons assigned.

LEMMON, Justice,

concurring.

An order compelling production of a list of the sales consideration by an expert in making his appraisal does not order production of any part of a writing which reflects the opinion of the expert.


text:
    SUCCESSION of Clifton Anthony DONOHUE.
    No. 67023.
    Supreme Court of Louisiana.
    March 14, 1980.
   In re Irene M. Keller, applying for certio-rari, or writ of review, and stay order, to the Court of Appeal, Fourth Circuit, Parish of Jefferson. 388 So.2d 56.

Writ denied.


text:
    STATE of Louisiana In the Interest of Terry HILL.
    No. 66411.
    Supreme Court of Louisiana.
    March 28, 1980.
   In re Terry Hill, applying for writs of certiorari, mandamus and stay Orleans. Orleans Parish Juvenile Court No. 184-464.

State’s motion granted. Case remanded to Orleans Juvenile Court for future consideration in light of State in the Interest of Erin Hunter, La., 387 So.2d 1086, 1980.


text:
    STATE of Louisiana ex rel. Larry SMITH v. Frank BLACKBURN et al., Warden, Louisiana State Penitentiary.
    No. 67162.
    Supreme Court of Louisiana.
    June 13, 1980.
   In re Larry Smith applying for writ of habeas corpus and motion to proceed in forma pauperis, Parish of Orleans, Nos. 244-172 and 244-173.

Denied. Relator must first file in district court.


text:
    GUARANTY SAVINGS ASSURANCE COMPANY v. Peter A. UDDO.
    No. 67716.
    Supreme Court of Louisiana.
    June 13, 1980.
   In re Guaranty Savings Assurance Company, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge, 19th Judicial District Court. 386 No.2d 670.

Denied.


text:
    Beverly Sue MILLER v. BELDEN CORPORATION.
    No. 67779.
    Supreme Court of Louisiana.
    June 23, 1980.
   In re Belden Corporation, applying for certiorari, or writ of review to the Court of Appeal, Third Circuit, Parish of LaSalle, 386 So.2d 974.

Denied.


text:
    STATE of Louisiana ex rel. Joe L. BATES v. Frank C. BLACKBURN, Warden.
    No. 67818.
    Supreme Court of Louisiana.
    July 7, 1980.
   In re Joe L. Bates applying for remedial writ, Parish of East Feliciana, No. A15,801.

Denied.


text:
    STATE of Louisiana ex rel. Jimmy Wade WILLIS v. Frank BLACKBURN, Warden.
    No. 80-K-1366.
    Supreme Court of Louisiana.
    July 7, 1980.
   In re Jimmy Wade Willis applying for writ of habeas corpus, Parish of Rapides, No. 175-409.

Writ denied. Relator must first seek relief in the district court.


text:
    Sam GIALLANZA, Captain Sam V. Gardner, Captain E. B. Hendrix, and Warren A. Maher, Individually and as Industrial Commissioners of the Cresent River Port Pilots Fee Commission v. LOUISIANA PUBLIC SERVICE COMMISSION.
    No. 80-C-1975.
    Supreme Court of Louisiana.
    Aug. 29, 1980.
   In re Captain Charles E. F. Arnoult, Captain E. G. Bach, III, Captain Mark Deles-dernier, Jr., and Captain R. E. Ducros, applying for remedial writs and stay order, East Baton Rouge Parish, No. 238-482.

Granted. Stay order set aside. Remanded to the trial court, and the trial judge is ordered to establish an escrow account pending final determination of the appeal, which shall be expedited.


text:
    STATE of Louisiana v. Tommie BATTIE.
    No. 80-K-1722.
    Supreme Court of Louisiana.
    Sept. 3, 1980.
   In re Tommie Battie, applying for writs of certiorari, prohibition and mandamus. Parish of Jefferson, No. 80-940.

Writ denied. Respondent has an adequate remedy by appeal, if convicted.


text:
    STATE of Louisiana v. John E. SCAVONA.
    No. 80-K-1842.
    Supreme Court of Louisiana.
    Sept. 4, 1980.
   In re John E. Scavona applying for writs of certiorari, prohibition, mandamus and stay order. Parish of East Baton Rouge, No. 2-80-589.

Writ denied. Relator has adequate remedy by appeal.


text:
    STATE of Louisiana v. Robert Lee JACKSON.
    No. 80-K-2032.
    Supreme Court of Louisiana.
    Sept. 5, 1980.
   In re Robert Lee Jackson, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of DeSoto, No. 41,-195.

Granted. Bond reduced to $50,000.00.


text:
    SOUTHERN NATURAL GAS COMPANY v. Charles Wesley JORDAN et al.
    No. 80-C-2067.
    Supreme Court of Louisiana.
    Sept. 9, 1980.
   In re Barbara J. Matthews Sutton, et al., applying for remedial writs of certiorari, prohibition or mandamus or for supervisory writs, and stay order. Parish of Bienville, Nos. 24-557, 24-562; 24-569; 24-570; 24-573; 24-576; 24-577; 24-582; 24-594.

Writ denied. Applicant’s right to apply to the trial court for continuance is reserved.


text:
    Curt E. BOWERS et al. v. GREENE’S MARINE PRODUCTS, INC., and D. C. Greene.
    No. 80-C-1402.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   In re Greene’s Marine Products, Inc., and D.C. Greene, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Jefferson Davis, 386 So.2d 925.

Denied.


text:
    Morgan P. CHRISHAM v. Donald BLUM et al.
    No. 80-C-1398.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   In re Morgan P. Chrisham, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of St. Charles, 383 So.2d 458.

Writ denied.

DIXON, C. J., and CALOGERO, J., would grant the writ.

LEMMON, J., recused.


text:
    Jimmy HARPER v. BROWN AND ROOT, INC., et al.
    No. 80-C-1479.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   In re Jimmy Harper, applying for certiorari, or writ of review, to the court of Appeal, Third Circuit. Parish of Rapides, 383 So.2d 1079.

Writ granted.


text:
    Jimmy HARPER v. BROWN AND ROOT, INC., et al.
    No. 67834.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   In re Brown and Root, Inc., applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Rapides, No. 7544.

Denied.

CALOGERO, DENNIS and LEMMON, JJ., would grant the writ.


text:
    L. D. OLIPHANT et ux. v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    No. 80-C-1395.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   In re Natchitoches Parish School Board, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Natchitoches, 386 So.2d 983.

Denied.


text:
    James Harlan POWELL v. DEPARTMENT OF HIGHWAYS, State of Louisiana and Joseph J. Janusa.
    No. 80-C-1392.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   In re Department of Highways, et al., applying for certiorari, or writ of review, to the court of Appeal, Fourth Circuit. Parish of Jefferson, 383 So.2d 425.

Writ denied.

LEMMON, J., recused.


text:
    STATE of Louisiana v. Wallace ISTRE.
    No. 80-K-2094.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   In re Wallace Istre, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Acadia, No. 33,555.

Denied. Adequate remedy by review in event of conviction.


text:
    WATSON, BLANCHE, WILSON & POSNER v. CHARLES CARTER & COMPANY, INC.
    No. 80-C-1379.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   In re National Surety Corporation, applying for certiorari, or writ of review, to the Court of Appeal, East Baton Rouge Parish, First Circuit, 385 So.2d 359.

Denied.


author: FORET, Judge.

text:
    PRAIRIE FINANCE, INC., Plaintiff-Appellant, v. Wiley James PERRY, Jr., Defendant-Appellee.
    No. 7794.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1980.
    Whitaker & Doggett, Monty L. Doggett, Natchitoches, for plaintiff-appellant.

      Kelly & Salim, Robert L. Salim, Natchi-toches, for defendant-appellee.
    Before FORET, STOKER and LA-BORDE, JJ.
   FORET, Judge.

This action involves a suit by the plaintiff to have a Kansas judgment on a promissory note recognized and made executory. Defendant answered, alleging that the Kansas court lacked personal jurisdiction over him at the time the judgment was rendered. Defendant argued that the Kansas judgment was invalid and should not be recognized, based on this lack of personal jurisdiction. From a decision in favor of the defendant, plaintiff brings this appeal.

In September, 1964, the plaintiff obtained a money judgment against the defendant from the County Court of Butler County, Kansas. This judgment was revived by that same court in February, 1970, and in January, 1977.

On February 1, 1978, plaintiff filed a petition in the City Court, Ward One, Natchitoches, Louisiana, for recognition and enforcement of the September 28, 1964, Kansas judgment. Defendant answered, alleging the lack of personal jurisdiction over him of the Kansas court as the basis upon which the Louisiana courts should refuse to recognize and enforce the Kansas judgment. -The City Court found that the Kansas court lacked personal jurisdiction over the defendant and refused to give full faith and credit to the Kansas judgment. Plaintiff appeals from this decision.

The sole issue for our determination in this appeal is whether or not the Kansas court did in fact have personal jurisdiction over the defendant.

The Constitution of the United States commands that the courts of Louisiana give full faith and credit to judgments of the courts of our sister states. Louisiana may deny full faith and credit to a foreign judgment only when it is shown that the court which rendered it lacked jurisdiction over the parties or the subject matter of the litigation. U.S.C.A.Const. Art. 4, § 1; LSA-C.C.P. Art. 1; Magnolia Petroleum Company v. Hunt, 320 U.S. 430, 64 S.Ct. 208, 88 L.Ed. 149 (1943); Holden v. Holden, 374 So.2d 749 (La.App. 3 Cir. 1979).

The only issue which a Louisiana court may concern itself with in a proceeding for the recognition of a foreign judgment is whether or not the foreign court had jurisdiction over the parties or subject matter of the action. Rice v. Kliebert, 330 So.2d 374 (La.App. 4 Cir. 1976); Holden v. Holden, supra.

There is a general presumption that a court of a sister state had the jurisdiction to render judgment in a case before it. The person attacking such a judgment has a heavy burden of proving otherwise. Berry v. Berry, 307 So.2d 821 (La.App. 3 Cir. 1975); Holden v. Holden, supra. The burden to establish that the court of the foreign state was without jurisdiction can only be discharged by clear and positive proof. Turpin v. Turpin, 175 So.2d 357 (La.App. 2 Cir. 1965); Holden v. Holden, supra.

The defendant, Wiley Perry, Jr., attacks the foreign judgment in the present case. He has the burden of proving, by clear and positive evidence, that the Kansas court lacked jurisdiction over him when it rendered judgment against him. The evidence presented at the trial of this matter on the issue of service of process on the defendant consisted of the return of the Sheriff of Butler County, Kansas, showing personal service of process on him. The defendant gave oral testimony to the effect that such service had not been made on him. The law utilized to determine whether the foreign court had jurisdiction is the law of the foreign state rendering the original judgment. Fountain v. Fountain, 365 So.2d 1139 (La.App. 3 Cir. 1978).

The defendant failed to introduce any evidence of the law of Kansas with respect to the effect of a sheriff’s return showing personal service of process on a defendant. Where a party contends that the law of the foreign state applies, but does not introduce or demonstrate what the law of that state is with respect to the relevant issue, it is presumed that the law of the foreign state on the questioned point is the same as the existing law of Louisiana. Robertson v. Jimmy Walker Chrysler-Plymouth, Inc., 368 So.2d 747 (La.App. 3 Cir. 1979), writ denied, La., 371 So.2d 833, 834; Holden v. Holden, supra.

LSA-C.C.P. Article 1292 provides that a sheriff’s return, when received by the clerk, shall form part of the record, and shall be considered prima facie correct. Louisiana law is settled that a return cannot be impeached by the uncorroborated testimony of the party upon whom service is stated to have been made by the officer. Hood Motor Company, Inc. v. Lawrence, 334 So.2d 460 (La.App. 1 Cir. 1976), writ denied, 338 So.2d 288 (La.1976). The trial judge in the case before us found, as a fact, the lack of service of process over the defendant. The only evidence in the record which would support such a finding is the uncorroborated oral testimony of the defendant. We conclude that this finding is clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978), on remand La.App., 370 So.2d 1262, writ denied, 374 So.2d 660 (La.1979). We find that service of process and citation was made on the defendant.

We hold that the Kansas court did have personal jurisdiction over the defendant, Mr. Perry.

Finding that the Kansas court had jurisdiction over the person of the defendant and that its judgment was valid, the judgment of September 28, 1964, finding the amount owed by the defendant to the plaintiff in the full sum of $998.29, together with interest thereon at the rate of 10% per annum from September 9, 1964, until paid, together with all costs of those proceedings, is hereby recognized and made executory in the courts of the State of Louisiana.

The judgment of the trial court is reversed, and the matter is remanded to the said trial court for further proceedings. All costs of this appeal are assessed against defendant-appellee.

REVERSED AND REMANDED.

      . “Art. 1292. Sheriffs return
      The sheriff shall endorse on a copy of the citation or other process the date, place, and method of service and sufficient other data to show service in compliance with law. He shall sign and return the copy promptly after the service to the clerk of court who issued it. The return, when received by the clerk, shall form part of the record, and shall be considered prima facie correct. The court, at any time and upon such terms as are just, may allow any process or proof of service thereof to be amended, unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process issued.”


author: CUTRER, Judge.

text:
    Lowana Czahajda DeVILLIER, Plaintiff-Appellee, v. HIGHLANDS INSURANCE COMPANY, Defendant-Appellant.
    No. 7837.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1980.

      Davidson, Meaux, Sonnier & Roy, L. Lane Roy, Lafayette, for defendant-appellant— appellee.
    Morrow & Morrow, J. Michael Morrow, Opelousas, for plaintiff-appellee-appellant.
    Hudson, Potts & Bernstein, Ben R. Han-chey, Monroe, for intervenor-appellee-ap-pellant.
    Before CULPEPPER, DOMENGEAUX and CUTRER, JJ.
   CUTRER, Judge.

This is a suit by the widow and surviving children of Charles DeVillier for workmen’s compensation benefits, medical expenses, penalties and attorney’s fees arising out of injuries received by DeVillier in an automobile accident on December 22, 1978. DeVil-lier died on January 22, 1979 as a result of the accidental injuries.

The suit was filed by Mrs. Lowana DeVil-lier against Highlands Insurance Company (Highlands). Highlands, was the workmen’s compensation insurer of Movable Homes, Inc. (Movable). DeVillier was president and manager of Movable at the time of the accident. Included in the suit against Highlands is a claim for medical expenses in the amount of $38,012.95 which had been paid by Prudential Insurance Company of America (Prudential).

Prudential had issued a group health and life policy to Movable affording hospitalization and medical coverage for Movable’s employees. This policy excluded any claims that were subject to workmen’s compensation payments. Prudential received information that DeVillier’s injuries were not work related and paid $38,012.95 in medical expenses that had been incurred by DeVillier.

Prudential intervened in the suit seeking judgment against Highlands or, in the alternative, against Mrs. DeVillier for the $38,012.95 allegedly paid in error.

The trial court rendered judgment in favor of Mrs. DeVillier for workmen’s compensation benefits, all medical expenses, including those paid by Prudential, plus penalties and attorney’s fees. The court also found that Prudential was entitled to reimbursement from Mrs. DeVillier for its claim. Highlands and Prudential appeal. Plaintiff answered the appeal seeking an increase in attorney’s fees. We affirm.

The issues herein presented are: (1) Whether Mr. DeVillier’s injuries arose out of and in the course of his employment; (2) whether Prudential is entitled to reimbursement, and if so, from whom, Mrs. DeVillier or directly from Highlands; and (3) was the trial court correct in assessing penalties and attorney’s fees, and if so, whether the attorney’s fees are in the proper amount.

COURSE AND SCOPE OF EMPLOYMENT

Highlands urges that DeVillier’s accidental injuries and death did not arise out of and in the course of employment. The issue of “arising out of and in the course of employment” was recently presented to this court in the case of Vickers v. Continental Southern Lines, Inc., 383 So.2d 80 (La.App. 3rd Cir. 1980). This court held that, where a bus driver was required by his employer to get eight hours of rest and, when he was struck by a vehicle as he was walking from the bus station to a motel at which the employer provided free accommodations, said employee was injured in an accident which arose out of and in the course of his employment. In arriving at this conclusion, this court made the following observation:

“R.S. 23:1031, the applicable statute, provides in pertinent part:
‘If an employee not otherwise eliminated from the benefits of this Chapter, receives personal injury by accident arising out of and in the course of his employment, his employer shall pay compensation in the amounts, on the conditions, and to the person or persons hereinafter designated. ’
“In Lewis v. Bellow. 212 So.2d 540 (La.App. 3rd Cir. 1968), this court stated:
‘An employee protected by the Louisiana statute is entitled to receive workmen’s compensation if disabled “by accident arising out of and in the course of his employment.” LSA-R.S. 23:1031. In Kern v. Southport Mill. 174 La. 432, 141 So. 19, 21 (1932), a lead case, our Supreme Court stated that, for purposes of the workmen's compensation act, (a) “an accident occurs in the course of an employment when it takes place during the time of such employment”, and (b) it arises out of the employment when it is “the result of some risk to which the employee is subjected in the course of his employment to which he would not have been subjected had he not been so employed.” (Italics oúrs)’
$ * * * . * *
. . Protection of the compensation act extends not only to disabilities incurred in the performance of employment duties, but also to activities reasonably connected with or incidental to them. Bates v. Gulf States Utilities Co.. 249 La. 1087, 193 So.2d 255 (1966).’

With these principles in mind, we examine the facts of the case to determine whether DeVillier’s accident “arose out of and in the course of employment.”

Charles Wayne DeVillier was president, owner and manager of Movable. Movable was engaged in the construction of conventional homes at its yard in Eunice, Louisiana. The houses were sold in the Eunice and Lafayette areas. When a sale was made, the house would be transported to the customer’s lot where it was set in place.

DeVillier’s work was varied and unstructured. Far from being limited to ordinary office hours, he frequently worked into the night and traveled to and from future home sites. On the day of the accident, December 22, 1978, DeVillier had given a bar-b-que for his employees and some sales representatives of Lafayette. Among those attending were Sid Turner and Nikki Potier. Sid Turner was a Lafayette realtor and Nikki Potier worked with Turner. Later that afternoon, DeVillier, along with Turner and Nikki Potier, traveled to Lafayette from the Movable office in Eunice and there discussed business arrangements between Movable, Sid Turner and Nikki Potier. After that meeting, DeVillier gave Ms. Potier a ride to her mother’s house in Sunset. Shortly after leaving Nikki Potier, the company jeep he was driving overturned, causing serious injuries to DeVillier.

Uncontradicted testimony establishes that the route being traveled by DeVillier, while not the shortest route to his home, was the route to a lot onto which Movable was to place a house. The testimony of Nikki Potier discloses that he had never before been to this particular lot and that she, the last person to see Mr. DeVillier before the crash, explained the location of the lot to him before he dropped her off at her mother’s home. It was his established practice to ride the backroads between the future location of a house and Movable’s construction site so that he could determine if there were any obstacles to moving a house to the desired location.

Other testimony establishes that the residence of a Mr. Domingue, who was indebted to Movable, was in the vicinity of the crash and that Mr. DeVillier had indicated an intent to attempt to collect this overdue debt. Thus, two business motives existed to place the decedent at the scene of the accident. With these undisputed facts before him, the trial judge concluded that the evidence was sufficient to prove that the accident arose out of and was in the course of employment of DeVillier. The evidence clearly supports this conclusion.

The duties that were being attended to by DeVillier on the fatal evening in question were duties reasonably connected with his employment. Further, the necessity of extensive travel on secondary roads, to carry out his duties with Movable, exposed him to a risk that he would not have otherwise been exposed to had he not been so employed. Since the accident and death arose out of and in the course of DeVillier’s employment, benefits are due his surviving dependents.

PRUDENTIAL’S INTERVENTION

Highlands denies that Prudential is entitled to any restitution of the $38,012.95. Highlands bases its contention on two arguments: (1) Prudential had a natural obligation to pay the medical expenses; and (2) Prudential was negligent in making the payments.

Highlands’ argument that Prudential had a natural obligation to pay .the medical expenses is without merit. DeVillier’s accidental injuries were clearly excluded by the Prudential policy. This is not disputed. There was no obligation imposed upon Prudential to make any payments, either by contract or by natural obligation. The case of Muse v. St. Paul Fire and Marine Insurance Company, 328 So.2d 698 (La.App. 1st Cir. 1976), cited by Highlands, is inapposite. In that case the court held that the obligation of an indigent, to pay a charity hospital a fair cost of medical services rendered to him, constituted a “natural obligation” barring a recovery by the indigent from his attorney who mistakenly paid said hospital expenses from the proceeds of a disability policy. In the case at hand, Prudential received no benefits from the services rendered by the hospitals or doctors as did the indigent in Muse, thus, no natural obligation can be imposed upon Prudential.

Highlands’ claim, that Prudential was barred from any recovery due to its negligent payment, is also without merit. As a matter of fact, Prudential was not negligent in its payment.

Donald Sattler, Agent of Prudential in Eunice, was well acquainted with the DeV-illier family. The day following the accident, Sattler was informed of DeVillier’s automobile accident by DeVillier’s brother. Sattler later filled out the necessary claim forms to be sent to Prudential. He had received no information, during the interval between the date of the accident and the date of the forms, that the accident was work related. In filling out the claim forms, Sattler noted that the accident was not work related. The form was sent to Mrs. DeVillier’s attorney where they were signed by Mrs. DeVillier. The medical expenses were paid by Prudential on March 5, 1979.

The claim against Prudential was handled as a routine matter without unnecessary delay and with no knowledge that the accident was work related and excluded from the policy. We cannot label such actions as negligent acts. Furthermore, the jurisprudence has not treated negligence as a bar to recovery of a payment which was paid in error. In the case of Central Surety & Ins. Corp. v. Corbello, 74 So.2d 341 (La.App. 1st Cir. 1954), the court held as follows:

“This action, as we view it, is one which is sanctioned by Articles 2301 et seq. of the LSA-Civil Code and particularly Art. 2302, which provides that ‘He who has paid through mistake, believing himself a debtor, may reclaim what he has paid’.
It is obvious, as we have previously pointed out, that payment here was made through error and we fail to see how the question of negligence on the plaintiff’s part in making payment should control his right of recovery. The defendant has admittedly received a large sum of money which, as we have found, was not due him. There is nothing in the record which would tend to show that he was injured or damaged, in any way as the result of receiving the money. Under these circumstances we do not think he should be allowed to capitalize upon and be enriched by the error made by the plaintiff.” 74 So.2d 344.

In the recent case of Dynamic Exploration v. Sugar Bowl Gas Corp., 367 So.2d 18 (La.App. 1st Cir. 1978), writ den., 368 So.2d 142 (La., 1979), the court held as follows:

“Additionally, we adhere to what we believe to be the proper interpretation of the Code and the one which a majority of cases follow, namely that negligence per se is not a bar to recovery for the payment of a thing not due. Central Surety & Ins. Corp. v. Corbello. 74 So.2d 341 (La.App. 1st Cir. 1954); Continental Oil Company v. Jones. 191 So.2d 895 (La.App. 1st Cir. 1966).” 367 So.2d 24.

Under this jurisprudence, even if Prudential had been negligent in its payment, such negligence would not be a bar to Prudential’s claim for payment in error.

Prudential argues on appeal that the trial court erred by denying Prudential’s request for judgment against Highlands. Prudential rests its argument on LSA-C.C. art. 2310, which reads as follows:

“He who, through mistake has paid the debt of another to whom he believed himself indebted, has a claim to restitution from the creditor.
“This right ceases if, in consequence of the payment, the creditor has destroyed or parted with his title, but the recourse still remains to the person pavinsr aerainst the true debtor.” (Emphasis ours)

Counsel for Prudential argues that Highlands was the “true debtor” in that Highlands owed Mrs. DeVillier her husband’s medical expenses. Prudential contends that Highlands being the “true debtor,” Prudential has recourse against Highlands as set forth in the last line of the article above. We disagree.

The “true debtor” under this article would be Mrs. DeVillier, the survivor of Charles DeVillier. The “creditors” would be the hospitals and doctors. Workmen’s compensation insurance coverage creates an obligation for the insurer (Highlands) to pay such expenses on the behalf of the “true debtor” (Mrs. DeVillier). Thus, under this article, Prudential has recourse against Mrs. DeVillier, but not against Highlands for the recovery of the medical expenses paid by mistake.

PENALTIES AND ATTORNEY’S FEES

The trial court found that statutory penalties and attorney’s fees were due. It applied penalties to the medical and funeral expenses and to compensation benefits for the period up until May 25, 1979. We agree. Highlands claims this was in error in that there existed a “clear, substantial and bona fide dispute concerning (1) whether .. . the accident itself was in the course of or arising out of Charles Wayne DeVHlier’s employment; and (2) the legal issue of reimbursement existing between Highlands and Prudential.”

We have previously reviewed the undisputed evidence which clearly reflected that DeVillier was acting in the interest of Movable when the accidental injuries occurred. Within five weeks of the date of the filing of the suit, Highlands had taken the depositions of Nikki Potier and Mrs. DeVillier, whose testimony reflected that DeVillier was on business for Movable at the time of the accident. Highlands presented no testimony to dispute the testimony of plaintiff’s witnesses. This issue presented no serious dispute of fact as contended by Highlands.

Further, on December 28, 1978, an employer’s report was mailed to Highlands reporting the occurrence of the accident and that the accident occurred while DeVil-lier was “on a business trip.” This report was received by Highlands on January 3, 1979. This suit was filed on January 29, 1979. Highlands paid the balance due at the two hospitals; that is, the amount that had not been paid by Prudential. Some of the doctor bills were also paid along with funeral expenses. Compensation payments were also brought up to date. These payments were received by the attorney for Mrs. DeVillier on May 3,1979. The remaining doctor bills were later paid, the last one being paid in September 1979. Several demands were made on Highlands before the last bills were paid. Highlands’ delay in paying the medical bills, some of which were for as long as eight months after suit was filed, is without legal excuse or justification and must be classified as arbitrary.

The fact that a dispute existed between Highlands and Prudential as to the payment of medical expenses does not justify Highlands’ refusal to pay the sums paid by Prudential through error. Highlands has a statutory obligation to pay the medical expenses. The fact that Prudential had paid such expenses through error and then made demand upon Mrs. DeVillier for the return of same, does not diminish Highlands’ obligation to Mrs. DeVillier. Their refusal to pay the obligation to Mrs. DeVillier was arbitrary. Mrs. DeVillier is entitled to penalties and attorney’s fees.

The trial court awarded $5,000.00 attorney’s fees and plaintiff’s counsel seeks an increase in same. We have considered the record of this case and have concluded that the $5,000.00 awarded by the trial court as attorney’s fees is proper and sufficient in this case. This would include attorney’s fees for this appeal. See Fontenot v. Town of Kinder, 377 So.2d 554 (La.App. 3rd Cir. 1979), writ den., 379 So.2d 1102 (La. 1980); also, the recent case of Harkins v. Continental Oil Co., 385 So.2d 1216 (La.App. 3rd Cir. 1980).

For the above and foregoing reasons, the judgment of the trial court is affirmed, with Highlands Insurance Company and Prudential Insurance Company of America to each pay 50% of the costs of this appeal.

AFFIRMED.

      . No issue is made as to whether an intervention by Prudential was the proper procedure to be followed. Thus, we do not pass on same.


author: GUIDRY, Judge.

text:
    Henderson JOHNSON, Plaintiff-Appellee, v. FIREMAN’S FUND INSURANCE CO. et al., Defendants-Appellants.
    No. 7669.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1980.
    J. Rodney Ryan, Jr., of Breazeale, Sachse & Wilson, Baton Rouge, for defendants-appellants.
    Knoll & Knoll, Kerry L. Spruill, Marks-ville, for plaintiff-appellee.
    Before GUIDRY, SWIFT and DOUCET, JJ.
   GUIDRY, Judge.

The plaintiff-appellee, Henderson Johnson, brought this suit to recover workman’s compensation benefits. Defendants are Cooper Heat, Inc., the plaintiff’s employer, and Fireman’s Fund Insurance Company, the compensation insurer. The trial court rendered judgment in favor of the plaintiff awarding temporary total disability benefits for a total of eleven weeks as well as penalties and attorney’s fees in the amount of $500.00. We reverse.

The accident in question occurred on July 15, 1978, while the plaintiff was working for defendant, Cooper Heat, Inc., at the Exxon refinery in Baton Rouge. The plaintiff was attempting to plug the receptacle of a machine into its power source when a large flash occurred, apparently caused by a short circuit in either the receptacle or the power source. As a result of the short circuit, the plaintiff sustained flash burns around his face and eyes.

The issue before us is whether or not the trial court erred in its factual determination that the flash burns caused the plaintiff to be temporarily totally disabled.

It is well settled that the standard for an appellate court reviewing a trial court’s factual determination is that such a determination must not be disturbed absent a finding of manifest error. Canter v. Koehring Company, 283 So.2d 716 (La.1973). This standard was refined in Arceneaux v. Domingue, 365 So.2d 1330 (La.1978), when the Supreme Court added:

“Manifestly erroneous in its simplest terms means clearly wrong .. . Therefore, the appellate review of facts is not completed by reading so much of the record as will reveal a reasonable factual basis for the finding of the trial court; there must be a further determination that the record establishes that the finding is not clearly wrong."

Our review of the entire record reveals that the decision of the trial court is clearly wrong.

The record reveals that immediately after the accident, the plaintiff was examined at Doctors Memorial Hospital by the emergency room physician, Dr. Joseph Gerdes. Dr. Gerdes diagnosed plaintiff’s injuries as er-ythema (redness), conjunctivitis of the left eye, and burns of the lower lashes. Dr. Gerdes stained the plaintiff’s eye with Fluorescein and noted small corneal abrasions of a superficial nature. Dr. Gerdes then irrigated the eye, put in metimyd drops and patched the eye. The plaintiff was given medication and antibiotic drops to use in the eye.

Appellee urges that his temporary total disability resulted from corneal scarring caused by the injuries received in the accident. Plaintiff’s counsel questioned Dr. Gerdes regarding the etiology of corneal scarring, specifically, if such scarring could result from corneal burns. Dr. Gerdes replied:

“A: Well, whether or not the cornea will scar_of course it will scar under certain circumstances, but I couldn’t say that in this particular case that they would be there. If the burns are deep or if the injuries are deep, you always may have a corneal scar, but that would be apparent on examination.”

In his deposition, Dr. Gerdes opined that the superficial burns sustained by plaintiff as a result of the accident were not deep enough to cause scarring. He further stated:

“Q: Doctor, Reverend Henderson Johnson complained of headaches; he complained of blurred vision; he complained of the sunlight greatly affecting his vision. Doctor, these complaints he had these complaints following the accident, the industrial accident, and he complained of the headaches and the blurred vision for a period of six to ten weeks after the accident. They continued through that length of time. Would this be consistent with this type of injury.
A: No. I don’t believe it would be.
Q: Would you expect a person with this type injury to have had blurred vision after the accident for a period of __ for several weeks, say?
A. No. I do not think he would have blurred vision for several weeks.
Q: Do you think that he would have had headaches and the sunlight would have bothered his vision?
A: Mv opinion is there may have been a few days when that may have occurred. but that should have resolved rapidly.” (Emphasis added).

After he examined the plaintiff, Dr. Gerdes recommended that the plaintiff see Dr. Lionel Smith, an ophthalmologist. On July 17, 1978, two days post accident, Dr. Smith examined the plaintiff and noted minor irritation of the cornea but did not find any scarring. He testified as follows:

“Q: Doctor, given your objective findings on the last examination, 7/19/78, are you able to attribute any sort of a disability to that eye that would keep this man from working for any appreciable period of time?
A: He should have been able to work by the last time that I saw him. Normally we see these people until they are completely healed just for this purpose, to prove that. But he was able to work by the last visit that I saw him and should have no permanent disability. Now, his vision was not back to normal at the last time that I saw him, but this can be attributed to the dilation which we did on purpose as part of his treatment.
Q: And that would last for one week or so I think you stated?
A: A week.
Q: He would be able to work, though, during this period of time?
A: Correct.
Q: Doctor, given your objective findings are you able to say whether Mr. Johnson would have had an appreciable amount of pain in that eye for any time after this accident?
A: No, only a moderate amount of pain for the first thirty-six to forty-eight hours.
Q: And after the forty-eight hours little or no pain ?
A: Little or no pain.
Q: In summary, then, you felt that within forty-eight hours after you initially saw him that he was in good enough physical condition that he could return to work if he chose to do so?
A: Correct.”

Plaintiff complained of problems after his last visit to Dr. Smith on July 19, 1978, but did not seek additional medical treatment until December 27, 1978, at which time he was seen by Dr. Crayton A. Fargason. Dr. Fargason noted that the plaintiff’s objective examination was normal although there was evidence of refractive error and color-blindness. Dr. Fargason stated that these problems were not related to the accident. Specifically, he stated:

“Q: Now, doctor, assuming that he had some trauma to the eye in July __ I think it was July 15, 1978 _ _ were you in any way able to attribute the refractive error or the color-blindness to that particular accident or was this something that you determined to be congenital in nature?
A: I could not find any relationship to the accident.
Q: Doctor, at the time that you saw Mr. Johnson, was he in any way disabled from performing regular job duties because of some sort of eye disability in his capacity as a laborer?
A: Not that I could see, no.” (Emphasis added).

In finding that the plaintiff was entitled to temporary total benefits, the trial court observed:

“Dr. Joseph Gerdes, the original attending physician, testified that corneal scarring could result from burns to the cornea and that such scarring could distort or impair vision permanently.”

The only evidence that supports the above statement is the previously quoted stated by Dr. Gerdes as follows:

“A: Well, whether or not the cornea will scar_of course it will scar under certain circumstances, but I couldn’t sav that in this particular case that they would be there. If the burns are deep or if the injuries are deep, you always may have a corneal scar, but that would be apparent on examination.” (Emphasis added).

This was the only reference in the testimony that links the accident to the plaintiff’s complaints. Clearly, in the context in which this testimony was given, it cannot support plaintiff’s recovery. Dr. Gerdes’ statement was that deep corneal burns could cause corneal scarring, but it would be apparent upon examination of the eye. However, Dr. Gerdes, as well as the other two doctors who testified, were clear in their opinions that the plaintiff did not have deep burns and that there had been no scarring.

The only evidence in the record that supports a finding that the plaintiff is entitled to benefits is the plaintiff’s own testimony. Appellee cites St. Pe v. Howard P. Foley Electric Company, 341 So.2d 639 (La.App. 4th Cir. 1977) for the proposition that lay testimony has great probative value in establishing certain facts such as existence and location of pain and actual ability or inability of claimant to perform certain physical functions or to pursue his regular employment. However, the circumstances of that case may be distinguished from the case presently before our court. In St. Pe, supra, the medical testimony was in conflict. Further, the treating physician substantiated the plaintiff’s claims and the court gave great weight to his testimony noting that he had a greater opportunity to observe the plaintiff over an extended period of time as compared to the other testifying physicians. In the present case, the medical testimony is not in conflict. All of the medical testimony clearly indicates that plaintiff’s injury did not result in temporary total disability such as to entitle him to workmen’s compensation benefits. The relationship between lay testimony and medical testimony is discussed in Tantillo v. Liberty Mutual Insurance Company, 315 So.2d 743 (La.1975) as follows:

“It is generally true that medical testimony which is not in conflict cannot be overcome by lay testimony. Nevertheless, in every case it is the totality of the evidence, medical and lay, which must be examined by the court in making its determination of whether to grant an award for disability. Great weight, almost to the point of exclusion of other evidence, is given to uncontradicted medical evidence which is directed toward a complex scientific question. However, in all cases, it is the judge’s function to determine the weight which is to be accorded the medical testimony as well as the lay testimony.”

In the present case, we are mindful that it is the judge’s function to determine the weight of the testimony given at trial. However, as stated above, great weight, almost to the exclusion of other evidence, should be given to the uncontradicted medical evidence. The evidence before us is direct evidence and it deals with a complex scientific question.

In summary, when considering the uncon-tradicted testimony of the three attending physicians, who were uniform in their statements that the accident in question could not cause more than a brief discomfort to the plaintiff, we must find that the trial court’s awarding of compensation benefits is clearly wrong.

For the above and foregoing reasons, the judgment of the trial court is reversed and plaintiff’s suit against the defendants is dismissed with prejudice. All costs at the trial level and on appeal are to be taxed against the plaintiff-appellee.

REVERSED AND RENDERED.


author: SWIFT, Judge.

text:
    John F. MANZANARES et ux., Plaintiffs-Appellants, v. AMERICAN INTERNATIONAL FOREST PRODUCTS, INC. et al., Defendant-Appellee.
    No. 7772.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1980.
    Writ Refused Dec. 5, 1980.

      Edwards, Stefanski & Barousse, Homer Ed Barousse, Jr., Crowley, for defendant-appellant-appellee.
    Sandoz, Sandoz & Schiff, Lawrence B. Sandoz, Jr., Opelousas, for plaintiff-appel-lee-appellant.
    Morrow & Morrow, J. Michael Morrow, Opelousas, for plaintiffs-appellees-appel-lants.
    Dubuisson, Brinkhaus & Dauzat, Edward B. Dubuisson, Opelousas, for defendants-appellees.
    Franklin, Moore & Walsh, Charles O’Brien, III, Baton Rouge, for defendant-appellee.
    Before CULPEPPER, SWIFT and DOU-CET, JJ.
   SWIFT, Judge.

In May of 1977 Mr. and Mrs. John Manza-nares, the plaintiffs, entered into a building contract with J. L. Pitre, a carpenter-contractor, for the construction of their home near Leonville, Louisiana. The Manzanares desired a rustic look for the interior of their home and selected 1" X 12" Ponderosa Pine boards for the paneling from a sample brought them by Mr. Pitre which he had obtained from Pierre Guidry & Son, Inc., a building materials retailer. Thereafter, the interior of the home was paneled with 4500 board feet of this material that was manufactured by Wickes Forest Industries, a division of The Wickes Corporation. The home was completed in July of 1977. During the months of December, 1977, and January, 1978, after the use of the central heating system, the plaintiffs began to notice that the pine was “shrinking”, resulting in some splitting of the boards and cracks nearly V* inch in width where they were supposed to join which exposed the insulation in the walls behind the paneling. The wood shrank throughout the house.

The Manzanares filed this lawsuit against Pitre, Pierre Guidry & Son, Inc. (Pierre Guidry), American International Forest Products, Inc. (American) and its insurer, Safeco Insurance Company of America (Sa-feco), the Wickes Corporation (Wickes) and its insurer, Travelers Insurance Company (Travelers), alleging the wood used was defective and seeking damages.

After trial on the merits, in answers to interrogatories, the jury found the lumber was defective because of its high moisture content at the time it was sold by the lumber dealer, Pierre Guidry, but that it did not contain excess moisture which constituted a redhibitory defect when it left the custody of Wickes. Therefore, the judgment was cast against Pierre Guidry on the jury’s finding that the lumber gained moisture in its custody which caused the shrinkage.

It was agreed by the parties that the trial judge would rule on all matters not decided by the jury. He concluded that J. L. Pitre also was legally responsible for installing the defective material and rendered judgment against him as well. However, Mr. Pitre was allowed indemnity on his third party demand against Pierre Guidry, as a good faith seller with recourse against his vendor. A total award of $19,000.00 was granted the plaintiffs. The Manzanares, Pitre and Pierre Guidry have appealed. The other parties have answered the appeals.

THE MANUFACTURER’S LIABILITY

The first issue with which we are confronted is whether the jury erred in finding the lumber did not contain a redhib-itory defect at the time it left the custody of the manufacturer, Wickes.

The evidence indicates that the particular No. 3 common Ponderosa Pine that Pierre Guidry sold to Pitre for use in the Manza-nares home was ordered by the lumber dealer from American, a broker, who in turn ordered it from Wickes. The order was for a flatcar load of lumber, kiln-dried and paper — wrapped. It was shipped by Wickes directly to Pierre Guidry and was never handled by American.

James R. Hogue, the sales and traffic manager for Wickes at Grangeville, Idaho, who qualified as an expert in the field of lumber, testified that to be labeled “kiln-dried” the Ponderosa Pine must have a moisture content not greater than 19%. Except for railroad ties, no lumber is produced at the Grangeville plant that is not kiln-dried. The wood stays in the kiln for drying for more than a day. Because it passes through many hands and there are various grades and moisture checks along the way, there is little chance of the lumber getting shipped without being inspected. He admitted that every board is not examined, but random samplings of the wood are made periodically for moisture content.

Mr. Hogue further testified that wet lumber comes out very fuzzy after planing and is therefore recognizable. He said that it is a natural property of wood, especially in this part of the country, to absorb moisture from the air. Consequently, even after the excess moisture is taken out of the wood at the plant, it has a tendency to pick up moisture after arrival in Louisiana. Then, once it is put in a home and central heat is used, it is natural for the lumber to lose moisture and shrink. There are other grades of Ponderosa Pine than the No. 3 employed in this instance which will not shrink, however. No. 3 is used primarily for shelving.

Another expert in the field, Mr. Neil Pin-son, who is the technical director for Western Wood Products Association, testified that if the lumber had not been kiln-dried to a moisture content of 19% and as in this case shipped in April but not used in a home until late May or July, normally he would expect mildew to develop. He further testified that kiln-dried lumber, subjected to high temperatures and relative humidity for two to three months and even though in a covered shed, will increase in moisture content to about 20.2%. He examined the moisture readings taken in the plaintiffs’ home, which ranged from 9.2% to 11.9%. He testified that if a piece of 1" X 12" Ponderosa Pine is reduced from 18% to 10% moisture content, it will shrink slightly less than Vi inch in width. After measuring several of the boards from plaintiffs’ home and taking into consideration that 12-inch boards are required to be only llVi inches wide, he concluded that their shrinkage was not disproportionate as they averaged HVs inches for a board. However, he added that in some places the cracks between the boards were wider than the shrinkage would indicate they should have been. This was explained as being due to the “crook” in this less expensive grade of lumber.

Further, Mr. Herman Guidry, the president and owner of the lumber company, testified that what he received from Wickes was “exactly what we wanted, a beautiful grade of No. 3, kiln-dried.” He personally saw this shipment and helped unload it. It was stored in covered sheds. He denied the lumber was defective, but said it should not have been used for paneling. It was purchased mainly for use as shelving. The salesman for Pierre Guidry, Kenneth Dai-gle, testified it was a good shipment of lumber.

On the other hand, another expert, Mr. Roy Elder, the general manager of the distribution yard of the Powell Lumber Company in Lake Charles, expressed the opinion that the lumber could have accumulated moisture in transit or that some of the boards may not have been properly dried because of improper circulation in the kiln. He said that most 1" X 12" No. 3 Pondero-sa Pine sold by his company is used for shelving, but that it could be used for paneling and is, at least in some parts of this country. However, in Louisiana a tongue and grove application is employed to reduce the problems resulting from shrinkage.

It is well settled in our law that the findings of fact of a jury which are reasonably supported by the record should not be disturbed on appeal unless they are clearly wrong. Canter v. Koehring Co., 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1979). From our review of the evidence, we believe there was a reasonable factual basis for the jury’s finding that the lumber was not defective when it left Wickes’ custody and that it was not clearly wrong in this respect.

The plaintiffs also contend that the jury erred in not finding that Wickes or American improperly shipped the Ponderosa Pine to the dealer, Pierre Guidry, or at least failed to adequately warn prospective buyers of the possible results in using the lumber. We find no merit to either argument.

There is no evidence in the record which indicates that the lumber was improperly shipped by Wickes or the broker, American.

In regard to Wickes’ alleged failure to warn, Mr. Pinson testified that there is a booklet distributed by his association and used throughout the lumber industry which covers the shrinkage properties of different wood. Mr. Guidry said that his company had not received any pamphlet from Wickes saying this lumber should not be used for paneling. However, he testified he knew this should not be done, particularly in the manner applied in the plaintiffs’ house, as he was aware that soft wood coming into this area expands and contracts because of the effect of the climate on its moisture content. Mr. Guidry termed such use of this lower priced lumber as “ridiculous”. We do not believe Wickes or American were under a duty to advise of the inherent nature and shrinkage characteristic of the wood under these circumstances, especially since their buyer, the lumber dealer, admittedly was aware thereof.

THE SELLER’S LIABILITY

Pierre Guidry contends the jury’s verdict was in error in finding the lumber gained moisture while in its custody that caused the shrinkage and constituted a re-dhibitory defect of which the seller was aware.

As mentioned above, the president of this concern acknowledged he was aware of the nature of this lumber and that it should not have been used for paneling because of the moisture content. His information on the subject, of course, is also that of his company. There was a conflict between the testimony of Mr. Pitre and Messrs. Guidry and Daigle as to whether Pierre Guidry knew this Ponderosa Pine was going to be used for paneling. Daigle admitted, however, he was told about its intended use after about the third order, but did not caution Pitre against such use because he had no idea there would be any problems with it.

We are unable to say the jury was clearly wrong in its finding that the lumber became defective for use as paneling while in Pierre Guidry’s custody and the seller knew of the vice.

The plaintiffs further contend the award was insufficient and should be increased. We find no merit in this plea.

The measure of recovery by a purchaser from a seller or by a homeowner against his contractor for a defectively constructed building is generally the cost of repairs necessary to convert the unsound structure to a sound one or the amount paid to remedy the defect. Brown v. Dauzat, 157 So.2d 570 (La.App. 3 Cir. 1963); North American Contracting Corp. v. Gibson, 327 So.2d 444 (La.App. 3 Cir. 1976). Additionally, if the seller knew of the vice and failed to declare it he is also liable for expenses, other damages and attorney’s fees. Huffman-Euro Motors v. Physical Therapy, Etc., 373 So.2d 565 (La.App. 3 Cir. 1979).

Mr. Samuel Hollier, a witness for the plaintiffs, estimated the cost of repairing this house to be as follows:

1) Materials: $3,300.00
2) Carpenter Labor: 6,200.00
3) Painting: 3,500.00
4) Damage done to ceiling and floors: 2,000.00

Of these figures, the jury awarded all but the amount estimated for labor, allowing only $4,600.00. Mr. Hollier testified he would hire three men for approximately three weeks at $10.00 per hour, working 40 hours each week to do this work. Our calculations indicate the cost of such labor would be $3,600.00. Therefore, the jury award in this respect was not insufficient.

The plaintiffs further contend that the $600.00 award for motel expenses to be incurred by them while the home is under repair is inadequate. Mr. Manzanares said that a motel room for his family would cost $29.50 per day. Thus, the cost of a motel room for three weeks would approximate $600.00 and the jury award for this item was reasonable. The plaintiffs’ judgment also included $1,000.00 for embarrassment and $4,000.00 for their attorney’s fee. Counsel for the plaintiffs contend that the latter award was too low. His testimony enumerated the work he has done in preparation for this lawsuit, but he kept no time sheet and made no estimate of the number of hours he worked. From our review of the record we cannot say that the award for this item was beyond the limit of the discretion of the lower court.

Plaintiffs’ counsel also requests an additional fee for the legal services performed on appeal. As the plaintiffs’ request for additional relief not granted at the trial level is being denied on appeal, additional attorney’s fees for the services rendered in this court are not warranted. Conlay v. Houston General Ins. Co., 370 So.2d 196 (La.App. 3 Cir. 1979), writ granted, La., 371 So.2d 618 but dismissed, La., 374 So.2d 650; Gagnard v. Travelers Ins. Co., 380 So.2d 191 (La.App. 3 Cir. 1980).

THE BUILDER’S LIABILITY

The only other issue remaining for our consideration is whether the trial judge was wrong to impose liability on Mr. Pitre, the builder, despite the jury’s apparent finding that he did not use the lumber improperly. In doing so, he relied on the following language from Brown v. Dauzat, supra, which was taken from Tuminello v. Mawby, 57 So.2d 666, 668 (La.1952):

“The artisan, craftsman, builder, or manufacturer is always presumed to know of the vice or defect in the article he constructs, manufactures, or builds.”

Pitre contends he is liable only for defective workmanship and not for using allegedly defective material where he had no knowledge of the defect and it was not readily discoverable, citing LSA-C.C. Art. 2762. That article provides:

“If a building, which an architect or other workman has undertaken to make by the job, should fall to ruin either in whole or in part, on account of the badness of the workmanship, the architect or undertaker shall bear the loss if the building falls to ruin in the course of ten years, if it be a stone or brick building, and of five years if it be built in wood or with frames filled with bricks.” (Emphasis added.)

In support of this contention, Pitre’s counsel cites Murphy Corporation v. Petrochem Maintenance, Inc., 180 So.2d 716 (La.App. 1 Cir. 1965). In that case the plaintiff provided two underground storage tanks which the defendant installed. After acceptance of the work one of the tanks was found to have a leak. The court concluded Petrochem was not liable since it could not be held responsible for defects in materials which it did not provide and which were not patent or discoverable on reasonable inspection. In the present case, however, the contractor provided the materials, not the plaintiffs.

With regard to the other cases cited by Pitre, it was not established that the defective floor coverings involved were caused either by bad workmanship or the use of defective materials by the installers thereof. Instead, it appears the tile came loose because of seepage of moisture through improper foundations constructed by others.

While we think the trial judge erred in relying on Brown in this respect, we agree with him that the plaintiffs are entitled to judgment against the builder also, except for the $4,000.00 awarded for their attorney’s fee. Brown involved a sale of a home and lot with a defective foundation and LSA-C.C. Art. 2520 and the principles of redhibition were applicable. In the instant case, however, the relationship between the plaintiffs and Mr. Pitre is that of owner-contractor rather than vendor-vendee. Consequently, the rights of these parties are covered by Articles 2762-2769 of our civil code. Wurst v. Pruyn, 250 La. 1109, 202 So.2d 268 (La.1967); Unverzagt v. Young Builders, Inc., 207 So.2d 405 (La. App. 3 Cir. 1968); Catalina Pools v. Sellers, 322 So.2d 812 (La.App. 4 Cir. 1975).

Although Article 2762 speaks only of the undertaker bearing the loss caused by “badness of the workmanship”, it comprehends both defective construction and the use of faulty material. Parker v. Brown, 150 So.2d 306 (La.App. 2 Cir. 1963). In Nichols Ford Company, Inc. v. Hughes, 292 So.2d 345 (La.App. 2 Cir. 1974) the court said:

“There is little dispute as to the principles of law governing this case. It is implicit in every building contract that the work of the builder be performed in a good, workmanlike manner, free from defects either in materials or workmanship. An owner seeking to recover from the contractor has the burden of proving both the existence and nature of the defects, that the defects are due to faulty materials or workmanship and the cost of repairing the defects. LSA-C.C. Arts. 2762 and 2769.” (Emphasis added).

Negligence or knowledge of the defect by the contractor was not mentioned in that case and we conclude that to recover under Article 2762 the owner need only establish that the ruin was caused either by defective materials used by the builder or his bad workmanship.

Having established that defective lumber was used by the contractor in this instance, the plaintiffs are entitled to judgment against him as well as the lumber dealer in solido, but only up to the sum of $15,000.00. A homeowner cannot recover attorneys fees from his contractor under these circumstances unless specified in the building contract. Kegler’s Inc. v. Levy, 239 So.2d 450 (La.App. 4 Cir. 1970); Seymore v. La. Soil Stabilization Co. Inc., 381 So.2d 571 (La.App. 2 Cir. 1980).

We further agree with the trial judge that Mr. Pitre is entitled to indemnity on his third party demand against Pierre Gui-dry, who sold him the lumber knowing that it was unfit for use as paneling in the residence he was constructing.

For the foregoing reasons, the judgment of the district court is amended to reduce the amount thereof in favor of the plaintiffs against defendant, J. L. Pitre, to the sum of $15,000.00. Otherwise, it is affirmed.

AMENDED AND AFFIRMED.


author: SCHOTT, Judge. REDMANN, Judge,

text:
    The BANK OF NEW ORLEANS & TRUST COMPANY v. Michael A. BRULE et al.
    No. 11265.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 1980.
    Rehearing Denied Nov. 17, 1980.

      Robert T. Wakefield, Newman & Drolla, New Orleans, for plaintiff-defendant in re-convention-appellant.
    Paul S. Adams, New Orleans, for defendant-plaintiff in reconvention-appellee.
    Before REDMANN, SCHOTT and GARRISON, JJ.
   SCHOTT, Judge.

Plaintiff instituted executory proceedings pursuant to LSA C.C.P. Art. 2632 et seq., to effect the seizure and sale of and enforce its mortgage on an automobile belonging to defendant, Michael A. Brule. It joined as co-defendant Horace J. Thomas who executed the note and signed the mortgage along with defendant Brule. The automobile was sold at public auction and bought by plaintiff. Subsequently plaintiff filed a supplemental petition against Brule and Thomas seeking a deficiency judgment for the balanced owed on the note after credit was given for the proceeds from the sale of the automobile. Defendants denied liability for the deficiency on the ground that plaintiff had failed to serve on them a notice of seizure as required by C.C.P. Art. 2721. Defendant Brule reconvened for damages for plaintiff’s wrongful dispossession and tortious conversion of his car on the basis of plaintiff’s failure to serve the required notice. From a judgment dismissing plaintiff’s main demand and in favor of Brule and Thomas as plaintiffs in reconvention against plaintiff in the sum of $2600.00, plaintiff has appealed.

In this court plaintiff raises these issues: 1) It had the right to rely on the sheriff’s return. 2) The sheriff was a necessary party to the reconventional demand. 3) Since Brule and Thomas had actual notice of the seizure they were extended due process and service of the notice was unnecessary. 4) The failure to serve the notice should not deprive plaintiff of compensation against the reconventional demand for the amount it sought as a deficiency judgment. 5) Attorney fees were erroneously awarded on the reconventional demand. 6) General damages awarded on the reconventional demand are excessive.

The notices of seizure, as well as the notice to defendants to appoint an appraiser, were served at 4600 Papina Street in Jefferson Parish. The sheriff’s return shows that service of these notices was made on Michael A. Brule at his domicile at that address by leaving the papers in the hands of his son Kevin Thomas, and on Horace Thomas at his domicile at that address, by leaving them in the hands of his brother, Kevin Thomas. The record establishes that Brule and Horace Thomas were both residing at 4212 McCoy Street at the time. Brule was in the hospital at the time and had loaned the automobile to Harold Thomas who resided at 4512 Papina Street, and neither Brule nor Horace Thomas had ever resided at 4600 Papina Street. Harold Thomas testified that he was home at 4512 Papina Street when the deputy sheriff came and took possession of the car after Thomas removed his personal belongings from it. He stated that he was served with the papers.

The sheriff was required by Art. 2721 to serve defendants with the written notice of seizure and the service made was not proper as personal or domiciliary, C.C.P. Art. 1231. Plaintiff’s failure to follow the formality of service of notice prescribed by law prevents it from obtaining a deficiency judgment under the provisions of C.C.P. Art. 2771 et seq. Neff v. Ford Motor Credit Co., 347 So.2d 1228 (La.App. 1st Cir. 1977).

Plaintiff complains about the “harshness of the Neff case but we see good reason for its application here. Under Art. 2771 the creditor may obtain a deficiency judgment “only if the property has been sold under the executory proceeding after appraisal in accordance with the provisions of Article 2723.” In this case there was no valid appraisal because the notices to Brule and Thomas to appoint an appraiser were not properly served on them. C.C.P. Art. 2723, R.S. 13:4363. Thus plaintiff had no right to obtain a deficiency judgment against defendants.

Plaintiff’s argument that it could rely on the sheriff’s return is not persuasive. When the sheriff makes a seizure and serves papers he must, of necessity, get instructions from the seizing creditor so that we must assume that plaintiff supplied the sheriff with the 4600 Papina Street address at which to serve the notices. Nothing in the record suggests otherwise.

As to the contention that the sheriff was a necessary party to the reconventional demand, its objection to nonjoinder of a necessary party should have been raised in a dilatory exception and its failure to do so constituted a waiver of this objection. C.C.P. Art. 926.

In any event, plaintiff’s preoccupation with the sheriff’s role in this case seems irrelevant. Whatever dereliction was committed by the sheriff might be significant in a dispute between plaintiff and sheriff but it is imputed to plaintiff in its dispute with Brule and Thomas. This is so because the sheriff was acting as plaintiff’s agent in his dealings with plaintiff’s debtors.

As to plaintiff’s argument that service of notice was unnecessary since Brule and Thomas both had actual knowledge of the seizure, this overlooks the established principle that since executory proceeding is a harsh remedy the creditor must follow the letter of the law, and it ignores the point that proper appraisal before judicial sale is a fundamental prerequisite to obtaining a deficiency judgment.

Having concluded that the trial court’s dismissal of the main demand was correct we turn to the judgment on the reconven-tional demand.

At the outset we note that the judgment is in favor of both Michael Brule and Horace Thomas even though the automobile was owned by Brule and he alone filed the reconventional demand. His action was one for the wrongful conversion or dispossession of his property, damages for which he alone and not Thomas was entitled since the plaintiff did not observe the requirements with respect to notice before it seized his automobile. Neff v. Ford Motor Credit Co., supra. Nor is plaintiff entitled to compensation against Brule’s claim for the amount it sought to recover as a deficiency judgment. C.C. Art. 2210. Hitt v. Herndon, 166 La. 497, 117 So. 568 (1928).

The trial judge awarded the following damages to both defendants:

Value of property $850.00
Attorney fees 750.00
General Damages 1,000.00
Total $2,600.00

With respect to attorney fees, defendants were not entitled to recover these as a matter of law. General Motors Ac ceptance Corp. v. Myers, 385 So.2d 245 (La.1980). Plaintiffs’ reliance on Hancock Bank v. Alexander, 344 So.2d 21 (La.App. 3rd Cir. 1977) is misplaced. That case grew out of a wrongful seizure based on a writ of sequestration pursuant to C.C.P. Art. 3501 et seq., for which damages are allowable by Art. 3506. Accordingly, the award of attorney fees will be deleted.

Finally, since the judgment was erroneously awarded to both Brule and Thomas and since Brule alone has the legal right to stand in judgment for these damages the same will be reduced by one-half or $425.00 for the value of his property and $500.00 for general damages. The amount of the damages was within the discretion of the trial court.

Accordingly, the judgment on the main demand dismissing plaintiff’s suit is affirmed. The judgment on the reconven-tional demand in favor of Horace J. Thomas is annulled and set aside. The judgment on the reconventional demand in favor of Michael A. Brule is affirmed but amended to the sum of $925.00 with legal interest from date of judicial demand until paid. All costs are assessed against plaintiff, The Bank of New Orleans and Trust Company.

AFFIRMED IN PART, ANNULLED IN PART, AND AMENDED IN PART.

REDMANN, J., dissents in part.

REDMANN, Judge,

dissenting in part.

Plaintiff breached no duty towards Brule by seizing his car save the duty to serve him notice of seizure at his home, and the simple lack of home service of notice of seizure caused no damage whatsoever to Brule. Thus the reconventional demand of Brule should be entirely dismissed.

      . As discussed hereafter the judgment in favor of Thomas is null and void.


text:
    Dorothy KIDD v. FAMILY BUDGET SERVICE OF CARTHAGE, INC., d/b/a Brandon Finance Co.
    No. 52206.
    Supreme Court of Mississippi.
    Nov. 5, 1980.
    Christopher A. Tabb, Brandon, Barry H. Powell, Dias Young, Jackson, for appellant.
    Kenneth G. Stamps, Robert R. Marshall, Young, Scanlon & Sessums, Jackson, for appellee.
   Appeal from Chancery Court, Rankin County; Billy G. Bridges, Chancellor.

Before ROBERTSON, P. J., and BOWLING and COFER, JJ.

AFFIRMED.


text:
    Frank M. SANDERS v. CHARLES NELMS FORD, INC.
    No. 52185.
    Supreme Court of Mississippi.
    Nov. 12, 1980.
    Robert G. Turnage, Monticello, for appellant.
    Donald B. Patterson, Brookhaven, for ap-pellee.
   Appeal from Circuit Court, Lawrence County; R. I. Prichard, III, Judge.

Before SMITH, P. J., and SUGG and LEE, JJ.

AFFIRMED.

PATTERSON, C. J., took no part.


text:
    Roscoe F. MOORE v. E. D. YOUNG.
    No. 52209.
    Supreme Court of Mississippi.
    Nov. 12, 1980.
    Jere R. Ramsay, Hattiesburg, for appellant.
    Andrew M. Gambrell, Gambrell, Anderson & Gambrell, Hattiesburg, for appellee.
   Appeal from Chancery Court, Jefferson Davis County; J. W. Walker, Chancellor.

Before SMITH, P. J., and SUGG and LEE, JJ.

AFFIRMED.


text:
    Darrell Hilton WALKER, d/b/a Hilton & Hilton et al. v. PCA OF JACKSON, LTD.
    No. 52199.
    Supreme Court of Mississippi.
    Nov. 12, 1980.
    G. Garland Lyell, III, Jackson, for appellants.
    David W. Dreher, Powell & Thrash, Jackson, for appellee.
   Appeal from Chancery Court, Hinds County; J. C. Stennett, Chancellor.

Before PATTERSON, P. J., and WALKER and BROOM, JJ.

AFFIRMED.


author: SENTELL, Clerk.

text:
    OPINION OF THE CLERK.
    Opinion No. 30.
    Supreme Court of Alabama.
    Oct. 20, 1980.
   SENTELL, Clerk.

RULE 7, ALABAMA RULES OF JUDICIAL ADMINISTRATION-NO DOCKET FEE ON MODIFICATION OF A FINAL DECREE WITHOUT A PETITION

Mr. Dewaine Sealy, Circuit Clerk of Mar-engo County, has submitted to me, pursuant to § 12-2-19(d), Code 1975, the following questions:

(1) Would you please issue me a written opinion as to what authority I have to collect a docketing fee on modifications of a final decree, which contains only an agreement between the parties, ratified by the judge, but without any petition being filed?
(2) By what authority would I file and collect a docketing fee on an agreement modification between the parties not ratified by the judge?

In answer to the first question, there is no authority to collect a docketing fee on modifications of a final decree, which contains only an agreement between the parties, ratified by the judge, but without any petition being filed.

In answer to the second question, there is no authority to file and collect a docketing fee on an agreement modification between the parties, not ratified by the judge.

These answers are based on Rule 7, “Fees for Miscellaneous Filings,” Alabama Rules of Judicial Administration, which reads:

“Any filing for which there is no express cost under the consolidated fee structure shall be treated as an original filing for cost purposes.”

The “filing,” the collection of which is authorized by Rule 7, is the filing of a case. Opinions of the Clerk, No. 1, April 26, 1977, Ala., 345 So.2d 1329; No. 3, May 4, 1977, Ala., 345 So.2d 1338.

A “ease” is a judicial proceeding for the determination of a controversy between parties where rights are enforced or wrongs are prevented or redressed. Opinions of the Clerk, No. 1, April 26, 1977, Ala. 345 So.2d 1329; No. 12, August 8, 1978, Ala., 361 So.2d 534.

It is my opinion that the agreement for the modification of a final decree by the parties, ratified by the judge, without a petition being filed, is not a case separate and apart from the original case; therefore, the collection of a docket fee is not authorized for its filing.

An agreement by the parties, not ratified by the judge, would not constitute a case separate and apart from the original case. Moreover, parties to a decree may not change or modify the decree merely by agreement between the parties. Mullis v. Caldwell, 280 So.2d 558, 50 Ala.App. 508.


text:
    OPINION OF THE CLERK.
    Opinion No. 31.
    Supreme Court of Alabama.
    Oct. 21, 1980.
   SENTELL, Clerk.

RULE 7, ALABAMA RULES OF JUDICIAL ADMINISTRATION-FEES FOR MISCELLANEOUS FILINGS

Mr. Allen L. Tapley, Administrative Director of Courts, has submitted to me, pursuant to § 12-2-19(d), Code 1975, the following questions:

(1) Is the taking of a deposition in this state, pursuant to Rule 28(b), Alabama Rules of Civil Procedure, to be used in a civil proceeding in another state, an original filing under Rule 7, Alabama Rules of Judicial Administration?
(2) Is the $2.00 witness subpoena fee established in § 12-19-74(a), Code of Alabama 1975, incorporated by the provisions of Rule 28, supra, and thus to be charged of a party desiring to take the deposition of a witness in this state for use in a proceeding in another state?

My answer to the first question is in the negative. The second question is not answered.

Rule 7, Alabama Rules of Judicial Administration, is as follows:

“FEES FOR MISCELLANEOUS FILINGS
Any filing for which there is no express cost under the consolidated fee structure shall be treated as an original filing for cost purposes.”

Rule 28(b), Alabama Rules of Civil Procedure, reads:

(b) Depositions to be Used Outside This State. A person desiring to take depositions in this state to be used in proceedings pending in the courts of any other state or country may produce to a judge of the circuit where the witness resides a commission authorizing the taking of such depositions or proof of notice duly served, whereupon it shall be the duty of the judge to issue, pursuant to Rule 45, the necessary subpoenas. Orders of the character provided in Rules 30(d), 37(a)(1), 37(b)(1) and 45(b) may be made upon proper application therefor by the person to whom such a subpoena is directed. Failure by any person without adequate excuse to obey a subpoena served upon him pursuant to this rule may be deemed a contempt of the court from which the subpoena issued.

The words, “original filing,” in Rule 7, Alabama Rules of Judicial Administration, mean the “filing of a case.” Opinion of the Clerk, No. 23, March 10, 1980, 381 So.2d 55.

A case, within the context of the stated facts, is a judicial proceeding for the determination of a controversy between parties where rights are enforced or wrongs prevented or redressed. Opinions of the Clerk, No. 1, April 26, 1977, 345 So.2d 1329; No. 12, August 8, 1978, 361 So.2d 534.

The taking of a deposition in this state, pursuant to Rule 28(b), Alabama Rules of Civil Procedure, to be used in a civil proceeding in another state is not the filing of a case. It is, therefore, not an original filing under Rule 7, Alabama Rules of Judicial Administration.

The Clerk is not authorized by § 12-2-19(d) to give his opinion in the interpretation of a statute. The second question is not answered.