author: DOMENGEAUX, Judge. PER CURIAM.

text:
    Cleveland LEWIS, Plaintiff-Appellee, v. PIGGLY-WIGGLY OF FERRIDAY, INC., and Commercial Union Insurance Company, Defendants-Appellants.
    No. 8321.
    Court of Appeal of Louisiana, Third Circuit.
    July 22, 1981.
    Rehearing Denied Sept. 22, 1981.

      Kostelka, Swearingen & Street, C. Daniel Street, Monroe, for defendants-appellants.
    Johnson & Ritzie, Ernest L. Johnson, Baton Rouge, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and CUTRER, J.
   DOMENGEAUX, Judge.

In this slip and fall case, close questions of negligence and contributory negligence were decided by the trial court in favor of the plaintiff, Cleveland Lewis. Judgment was rendered against the defendant store owner, Piggly-Wiggly of Ferriday, Inc. and its insurer, Commercial Union Insurance Company, in the amount of $1,670.00 with legal interest from date of judicial demand. The amount represents an award of $1,500.00 for pain, suffering, disability, etc., $162.00 for doctor bills, and $18.00 for hospital costs.

Defendants have appealed contending that the trial judge erroneously decided the issues of negligence and contributory negligence against them. Plaintiff has answered the appeal seeking an increase in the amount of damages.

Using the rationale of Williams v. Winn Dixie of Louisiana, Inc., 393 So.2d 680 (La.1981), and Cline v. Kroger Company, Inc., 379 So.2d 1184 (La.App. 3rd Cir. 1980), we affirm the lower courts findings on the issues of negligence and contributory negligence. We also affirm the award, since the record does not establish that the trial court abused its discretion.

FACTS

The trial judge set forth his findings in his reasons for judgment. We find those factual conclusions well-supported by the evidence. We adopt these conclusions as our own and quote them as follows:

“The Defendant operates the Piggly Wiggly store in Ferriday. On the morning of 23 May 1979, sometime between 8 and 9 o’clock a.m., and shortly before the Plaintiff entered the store, (not more than ten minutes), a customer had dropped a jar of salad dressing in the open area of the store in front of Gloria Loyd’s check-out aisle. This was a slow time of the day and there were very few customers in the store. There were only three employees present. The Manager, [Vernon] White, was at the first checkout aisle on the left as you enter the store and Gloria Loyd was in the next aisle. A bag boy, [Steve] Tyson, was also present.
There were no employees at the other [two] check-out aisles which were open and unobstructed. I have accepted the location of the spilled salad dressing as that shown on the exhibit D-2 marked with an X[]. have also accepted as fact the testimony of Gloria Loyd that the spill was in the open and easily visible.
When the customer dropped the salad dressing, she was approaching Loyd’s aisle for the purpose of checking out. The spill was immediately observed by both Loyd and White. The other employee, a bag boy, Tyson, was immediately ordered to proceed to the rear of the store and obtain a mop and a pail to clean up the spill. At the time of the spill Tyson had been taking a customer’s groceries out the front and immediately upon his return he was given these instructions. This was a very short time after the actual spills. At this time the Plaintiff had not as yet entered the store.
When Tyson had departed to obtain the mop and pail, the Plaintiff then entered the store through one of the vacant check-out aisles.[] Both White and Loyd had the spill within their immediate observation since it was very close to each, and both were of the opinion that they could observe the approach of any customers in sufficient time to warn them of the spill. Both felt that they were complying with the store policy with respect to spills, in that the prompt steps were taken to clean it up, and they were present to warn customers of the danger.
Neither White nor Loyd saw the Plaintiff until he was at the site of the spill and both were in the process of warning him when he fell. Had Plaintiff approached from any of the areas of the store where the merchandise was displayed, both White and Loyd would have been able to see him in sufficient time to warn him, but he came through one of the vacant aisles and this was apparently the only direction from which both White and Loyd had some restriction of vision. I have accepted as fact that White had a slightly better angle of view that Loyd and he was in the process of stepping out of his check-out aisle into Loyd’s aisle to warn Lewis at the time of the spill. Loyd who saw him possibly a fraction of a second later than White was also in the process of warning Lewis at the time of the spill.
Plaintiff slipped, immediately got up, advised Loyd that he was not injured, checked out at Loyd’s stand (I have accepted as fact that Plaintiff checked out at Loyd’s aisle rather than White’s as Plaintiff testified) and then left the store. He came back about an hour later complaining of a back injury.”

NEGLIGENCE

The plaintiff proved that: there was a broken bottle of salad dressing on the floor between Mrs. Lloyd’s check-out aisle and the merchandise area of the store; he did not see the dressing; he stepped into it, fell, and was injured as a result. At this point the burden shifted to the store owner to rebut the inference of negligence on its part. Cline v. Kroger Company, Inc., 379 So.2d 1184 (La.App. 3rd Cir. 1980). This it has not done.

The evidence clearly established that Mr. White, the manager, and Mrs. Lloyd, a cashier, saw or heard the breakage occur and could plainly see the spill from their respective check-out stands. A bag-boy was instructed to get a mop and clean the area of the spill. Meanwhile Mr. White and Mrs. Lloyd, while still at their check-out stands, watched for customers who might be approaching the spill from the merchandise area of the store.

Unobserved by either Mr. White or Mrs. Lloyd, plaintiff walked up another checkout aisle, turned sharply to his left and reached the spill in several steps. Before either Mr. White or Mrs. Lloyd could warn him, plaintiff slipped in the dressing and fell.

After the initial discovery of the dangerous condition, the store owner has the burden to actually correct it or to warn of the danger while corrective procedures are being taken, if such a warning is reasonably possible. Williams v. Winn Dixie of Louisiana, Inc., 393 So.2d 680 (La.1981).

We hold that the storeowner, through its employees, did have a reasonable opportunity to warn the plaintiff of the unreasonably dangerous condition of its floor and was negligent in failing to do so. The broken bottle of salad dressing was on the floor at least five minutes and perhaps as long as ten minutes before plaintiff slipped. Two of the defendant’s employees, Mr. White and Mrs. Lloyd, saw or heard the spill and were just a few feet away from the spill during the entire time the dressing was the floor. Neither employee bothered to stand at the spill to warn customers, even though the evidence shows that one employee or the other was not busy during that time. The only reason neither employee warned plaintiff in time was because he approached the area by walking through another check-out aisle while both employees were on the lookout for customers approaching from the merchandise area of the store.

The fact that neither employee expected plaintiff to approach the area of the spill by walking through an unused checkout aisle does not exculpate the defendant from negligence. The evidence showed here, as it did in Cline v. Kroger Company, Inc., supra, that

“It was not uncommon for customers to enter the merchandise area of the store through the check-out aisles.” (379 So.2d at 1186).

We held in Cline that the storeowner’s employee had a duty, after discovering the spill, to remain watchful for any approach to her aisle and prevent persons from entering it. Since she did not prevent Cline from passing through her aisle to the merchandise area of the store, the defendant failed in proving its lack of negligence. The result is the same here.

Williams, supra, lends additional support to our holding. Under a very similar set of facts, the Supreme Court there said:

“... We hold that defendant did have a duty to warn plaintiff of the unreasonably dangerous condition of its aisle pending the correction of the condition, and that defendant had a reasonable opportunity to do so. Even accepting the estimation by defendant’s employees of the time lapse between the spill and the fall as 1 to 3 minutes, considering the fact that defendant employees saw the spill and were in the same front area of the building as the spill, it was reasonably possible for them to warn plaintiff during this 1 to 3 minute period while awaiting the arrival of a person to clean up the spill.” (Emphasis added). (393 So.2d at 683).

In the instant case, the time lapse between the spill and fall was 5 to 10 minutes, the defendant’s employees saw the spill and were in the immediate vicinity of the spill, and it was not uncommon for customers to walk through the check-out aisles in order to reach the merchandise area of the store, a fact defendant’s employees should have known, since they were long-time employees at this store. Under this set of facts, we hold that it was reasonably possible for the employees to warn plaintiff during the 5 to 10 minute period while awaiting the arrival of the bag-boy to clean up the spill.

CONTRIBUTORY NEGLIGENCE

The trial court resolved this issue in the following manner:

“. .. I have accepted Plaintiff’s statement that he was preparing to purchase cigarettes after having purchased a bag of pinto beans, and was not looking at the floor at the time of the spill. I do not accept his testimony as to the exact location of the spill nor the fact that he checked out at White’s aisle rather than Loyd’s. Nevertheless, I do not find him contributory negligent in that I do not feel that the customers in a store of this nature are required to observe the floor under all conditions. It is entirely reasonable to expect that a customer would have his attention on one of the displays such as cigarettes and other items around the check-out aisle rather than having his attention fixed on the floor. Defendant makes very strong arguments to the contrary in this case, but as stated, I have resolved this question of negligence in favor of the Plaintiff.” (Emphasis added).

The defendants have failed to establish by a preponderance of the evidence that plaintiff was contributory negligent. Although the spill, orange in color, was out in the open and readily observable against the light-colored floor to anyone who may have been observing the floor, the trial judge accepted as true plaintiff’s testimony that his attention was diverted to the cigarette display because he wanted to buy some cigarettes. (After his fall, plaintiff arose, selected a pack of cigarettes, purchased both the beans and the cigarettes, then left the store.) Furthermore, the plaintiff had just come around a corner and walked a very few steps before he slipped in the spill, a fact which also existed in Williams, supra, wherein the plaintiff was found not contrib-utorily negligent.

Viewing the evidence as a whole, we cannot conclude that the district court erred in concluding that plaintiff was not contribu-torily negligent in failing to observe the spill because his attention was directed at a cigarette display instead of the floor.

DAMAGES

The trial court concluded, with respect to damages:

“On question of quantum, the evidence indicates that the fall suffered by Plaintiff was of a relatively minor nature. The medical evidence indicated that there was no damage suffered to either Plaintiff’s elbow or his low back which was visible by x-rays. The attending physician felt that Plaintiff had recovered from the injuries on 30th of July, 1979. However a year later, and shortly prior to this litigation, the physician did state that there was some degree of disability, although this was not specified and no objective evidence was submitted to support disability or pain.
Consideration of the evidence, and the observation of the witnesses, including Plaintiff, on the question of the extent of the injury, justifies an award of $1,500.00 for pain, suffering, disability, etc. Plaintiff is also awarded net hospital costs in the amount of $18.00 and doctor bills in the amount of $162.00.”

Our review of the record convinces us that the trial court did not abuse its discretion in awarding general damages of $1,500.00. The fall plaintiff suffered in defendant’s store was of a relatively minor nature, as the trial judge found. The record indicates that several of plaintiff’s complaints possibly relate to or were caused by injuries or accidents other than the one which occurred in defendant’s store.

We note in passing that in Cline, supra, another panel of this court affirmed a very similar award for a similar back injury which was symptomatic for three or four months, a longer period of time than here.

DECREE

For the above and foregoing reasons the judgment of the district court is affirmed. All costs are assessed against plaintiff.

AFFIRMED.

ON APPLICATION FOR REHEARING

PER CURIAM.

Plaintiff-appellee on rehearing correctly suggests that we erred in assessing costs to him. We recognize the inadvertency, and now amend our original opinion so as to cast all costs against defendants-appellants.

With this amendment, plaintiff’s application for rehearing is denied.

      . Footnote by the Court of Appeal. Exhibit D-2 was a photograph depicting the area in which the spill occurred. The “X” or location of the spill was two or three feet from Mrs. Lloyd’s check-out counter between the checkout area and the merchandise area of the store.

      . Footnote by the Court of Appeal. The trial judge inadvertently omitted from his reasons the established fact that after plaintiff entered the store, he walked to his right then cut left to go down the first food aisle to get a bag of pinto beans. After he obtained the beans, he retraced his steps to the front of the store and then passed through one of the vacant checkout aisles.


source: Caselaw Access Project

author: LABORDE, Judge. CULPEPPER, Judge, DOMENGEAUX, Judge, STOKER, Judge,

license: Public Domain

text:
    GREENLEAF PLANTATION, INC., Plaintiff-Appellant, v. John P. KIEFFER and Arnold R. Kilpatrick, Defendants-Appellees.
    No. 8231.
    Court of Appeal of Louisiana, Third Circuit.
    July 30, 1981.
    Rehearing Denied Sept. 22, 1981.
    Michael Henry, Natchitoches, for plaintiff-appellant.
    Gahagan & Gahagan, Russell E. Gahagan, Natchitoches, for defendants-appellees.
    Before CULPEPPER, DOMENGEAUX, STOKER, LABORDE and BIENVENU, JJ.

      . Judge C. Thomas Bienvenu, Jr., Sixteenth Judicial District Court, Parish of St. Martin, participated as Judge Ad Hoc in this decision.

   LABORDE, Judge.

Plaintiff, Greenleaf Plantation, Inc. (Greenleaf), appeals the trial court’s denial of its suit for specific performance of an option to purchase property from defendants, John Kieffer and Arnold R. Kilpa-trick. The crucial issue on appeal involves whether the option was validly exercised by Greenleaf. We hold that it was and we reverse on that basis.

Albin Johnson and James Maxey are and have been the sole shareholders and officers of Greenleaf Plantation, Inc., a corporation formed by them to raise cattle and farm soybeans. Sometime prior to January of 1979, defendant landowners, Kieffer and Kilpatrick, contacted Johnson and Maxey to see if they were interested in leasing or purchasing from them a large tract of farmland in Grant Parish. Negotiations followed and in January of 1979, Greenleaf, through its president Albin Johnson, entered into a one year lease with defendants. The lease began February 1, 1979, and expired January 31, 1980, and called for a rental payment of $10,000. Johnson signed the document on behalf of Greenleaf.

Contemporaneously with the signing of the lease the defendants executed an agreement granting Greenleaf an option to purchase the leased premises for an agreed upon amount per acre. This option agreement is what we are concerned with on appeal. Johnson also signed this document of behalf of Greenleaf. The option was to terminate on November 1, 1979, but could be exercised by Greenleaf by delivering to defendants, within thirty days prior to November 1,1979, written notice of its (Green-leaf’s) intent to exercise the option.

Pursuant to the lease agreement, Green-leaf paid defendants $10,000 in lease rentals and farmed the land for the one year lease term.

On August 10, 1979, (more than thirty days prior to November 1, 1979), Greenleaf, through Johnson, expressed in writing to defendants its intention to exercise the option to purchase the property. In ensuing correspondence, plaintiff’s attorney, on October 11, 1979, (which was within thirty days prior to November 1, 1979), notified defendants of plaintiff’s intention to exercise the option. Subsequently, some title questions regarding the tract were discovered, yet on January 22, 1980, plaintiff’s attorney informed the defendants that plaintiff decided to complete the transaction despite these title objections. On January 28, 1980, defendant Kieffer issued notice to plaintiff to vacate the leased premises within thirty days. On February 8, 1980, plaintiff’s attorney notified defendants of the closing date set for February 19, 1980. Finally, on February 22, 1980, defendants’ attorney responded that his clients had no intention of conveying the property. Thereafter, on March 3, 1980, plaintiff sued to force the sale of the property.

Following a trial on the merits, the district court rendered judgment in defendants’ favor for two reasons: (1) There was no meeting of the minds between plaintiff and defendants; and (2) Albin Johnson, Greenleaf’s president, did not have necessary written authority to contract for the purchase of immovable property. Green-leaf appeals.

An option to purchase immovable property requires for its validity reciprocal consent of both parties as to the thing, the price, and the terms; evidenced by a written instrument. LSA-C.C. art. 2462. After a review of the record, we are satisfied that these requirements were met. We believe the crucial issue on appeal is whether the option to purchase was validly exercised, thus entitling plaintiff to specific performance of the agreement.

In determining whether the option to purchase was validly exercised, we begin by viewing the agreement itself.

The pertinent provision in the option reads:

“II. PERIOD OF OPTION AND EXERCISE
“This option shall terminate on November 1, 1979, and shall be exercised by PURCHASER, if it so desires in the following manner: Within thirty (30) days prior to November 1, 1979, PURCHASER shall deliver to OWNERS, their heirs and assigns, or their administrators or agents, written notice of PURCHASERS intent to exercise the option. If PURCHASERS do exercise this option to purchase prior to November 1, 1979, OWNERS do hereby grant, a ninety (90) day period of time after November 1,1979 for the closing of the transaction passing title.”

As we interpret this agreement, defendants negotiated and bargained for only the requirement that “purchaser shall deliver to owners ... written notice of purchasers intent to exercise the option.” (Emphasis added.)

Returning to the facts, we are satisfied that defendants, pursuant to the agreement, were indeed given timely notice in writing that plaintiff intended to exercise the option to purchase the tract of land. This written notice occurred in the form of a letter from plaintiff’s attorney mailed on October 11, 1979, notifying defendants of plaintiff’s intention to exercise the option. This letter followed an earlier letter of August 10, 1979, wherein Greenleaf, through Johnson, expressed the same intent. All that defendants bargained for in order to validly exercise the option was written notice of that intent. The record supports that this is precisely what they received.

Defendants argue that Greenleaf was never bound by the exercise of the option because the corporation, through its board, never authorized it through a corporate resolution.

While we agree that Greenleaf’s board of directors did not pass a corporate resolution authorizing Johnson either to enter the option to purchase or to exercise the option, we disagree that this lack of a resolution is fatal. See Bonura v. Christiana Bros. Poultry Co. of Gretna, 336 So.2d 881 (La.App. 4th Cir. 1976) writ denied, 339 So.2d 11 (La.1976); Louisiana National Bank of Baton Rouge v. Heroman, 280 So.2d 362 (La.App. 1st Cir. 1973) writ refused, 281 So.2d 755 (La.1973); Richard Apartments, Inc. v. Shadix, 150 So.2d 602 (La.App. 4th Cir. 1963); Trichel Contracting Company v. Little Creek Oil Company of Louisiana, 84 So.2d 874 (La.App. 2nd Cir. 1956); and Ideal Savings & Homestead Association v. Kerner, 208 La. 978, 23 So.2d 200 (1945).

While none of these cases is precisely on point, a common thread in each is that a corporate officer acted on his corporation’s behalf without a resolution from its board of directors, yet in spite of that the act was nevertheless upheld by the court. In the Trichel Contracting Co. case, supra, the court stated:

“It is not always necessary that the authority of an officer of a corporation be shown by resolution of its board of directors. The trial court correctly held that the defendant corporation could not accept and profit by the benefits arising from the cancellation of the original contract and its release from the obligation to pay $500 a day waiting time and then repudiate the acts of its officer and the obligations arising from his acts. Simmons’ acts were in the interest of defendant and, as heretofore stated, were in keeping with sound business judgment. Under such circumstances, the formality of a resolution of defendant’s board specifically conferring authority upon him was unnecessary. For instance, in Gueydan v. T. P. Ranch Company, 156 La. 397, 403, 100 So. 541, 543, it was stated:
“It is a familiar principle in law that it is not always necessary to show the authority of an officer of a corporation by a resolution of its board of directors. A corporation may not, any more than an individual, reap the benefits flowing from the acts of its officers and repudiate the obligations arising from the same acts. Berlin v. P. L. Cusachs, Ltd., 114 La. 744, 38 So. 539; Gair Co. v. Columbia Rice [Packing] Co., 124 La. [193] 194, 50 So. 8; Boudreaux v. Feibleman, 105 La. [401] 404, 29 So. 881.”
Under the facts and circumstances of this case, as herein above detailed and in keeping with the legal principles just cited, the conclusion follows that a resolution of defendant’s board was not necessary to confer authority upon C. E. Simmons, its vice president and field manager, to alter to its advantage the original contract executed by him on behalf of defendant by the subsequent agreement. The conclusion is likewise inescapable that not only did Simmons have actual authority to so contract with plaintiff but that he was held out by defendant as possessing such authority. The defendant is, therefore, bound by the aforesaid contract entered into for and on its behalf.”

In the Heroman case, supra, the plaintiff Bank instituted a deficiency judgment proceeding against personal endorsers of the corporate defendant, Southern Real Estate Investment, Inc. The major defense urged by the individual defendants was that the executory process was improper because there was no resolution by the corporation authorizing its president to execute the note and mortgage at the time of the execution of the note and mortgage. There was a resolution that was passed by the corporation two days after the note and mortgage were signed. Thus, the First Circuit was faced with the same issue that is before this Court: the authority of the president to bind the corporation in the absence of a resolution. The Court stated and held:

“We cannot accept defendant’s contention that the corporate resolution must be prospective in nature and terminology so that unless a corporate resolution exists prior to the time of the execution of a note and mortgage, the payee or bearer of the mortgage note will not be able to resort to executory process, notwithstanding the presentation to the court at the time of instituting the executory proceeding of a resolution of the corporate mortgagor expressly ratifying the incur-rence of the debt and mortgaging of collateral therefor. The only purpose of the corporate resolution is to confirm the intent and willingness of the corporation to incur the obligation or indebtedness. The “authorization” in that regard can be proven by authentic evidence of a corporate resolution to that effect, either prospective or retrospective in nature and terminology.”

Based on the above principles, the assertion by defendants in the instant case that a resolution was required authorizing Johnson to exercise the option is misdirected. Instead, the more important question is whether Greenleaf had the intent and willingness to incur the obligation. In this regard, the record fully supports that it did. The testimony at trial established that Johnson and Maxey are the sole shareholders of Greenleaf. Stated another way, they own 100% of its stock. Further, the testimony not only establishes that both Johnson and Maxey were involved in the option agreement negotiations, it also shows that the exercise of the option was in fact authorized by both of them. For example, the letter of August 10, 1979 from Johnson is evidence of his intent and willingness to be bound. The October 11, 1979 letter from Greenleaf’s lawyer shows additional authorization.

Before leaving the subject of the necessity of a corporate resolution, we note that defendants did not require that the notice to exercise the option be accompanied by authorization of plaintiff’s board of directors. Nor did defendants question that lack of such authority upon receipt of the notice which occurred during a period when it could have been easily remedied. In fact, it was not until the time for giving written notice had passed and plaintiff had undertaken time consuming and costly efforts toward consummation of the sale including such things as retention of an attorney to examine title and prepare necessary documents as well as employment of a surveyor as provided in the option agreement, that defendants — without explanation for their motives — seized upon these objections to try and free themselves from their end of the agreement. In addition, defendants now take the position that a corporate resolution was necessary for the option but apparently were satisfied that no resolution was necessary for the lease agreement since the fruits of the lease agreement ($10,000 in lease rentals) were enjoyed by them. We are not inclined to allow defendants to pick and choose from documents that benefit them and to reject other documents that do not, basing the rejection of the latter on the lack of corporate resolution authorizing Johnson’s acts. An additional factor casting doubt on defendant’s sincerity is that it was defendants who in the first place contacted both Johnson and Maxey and initiated the negotiations which led to the agreements. At no time did defendants question the authority of either Johnson or Maxey, nor did they (defendants) ever demand to see a corporate resolution.

Defendants also contend that since Greenleaf was never bound by the option agreement, then neither were they. Because we find that Greenleaf was bound, we must disagree with defendants’ contention.

We again refer to the option agreement which in part II provides that the option shall be exercised within 30 days prior to November 1, 1979. If timely exercised, then a 90 day period of time after November 1,1979, is granted for the closing of the transaction passing title. According to our calculations, this closing period ended on January 31, 1980. Under part VI C of the agreement, the parties provided that if title objections could not be cured within the 90 day period following November 1, 1979, then the closing date may be postponed for such additional time as may be necessary, not to exceed 60 days.

Returning to the facts of the instant case we are satisfied upon the record that the October 11, 1979 letter from Greenleaf’s attorney was a timely, valid exercise of the option. Thus, the parties were entitled to the 90 day closing period. About this time, problems regarding the boundary lines arose. All parties, including Johnson and Maxey and Kieffer and Kilpatrick, were aware of and involved in attempts to correct these title problems during the 90 day period. Finding that to be impossible, plaintiff on January 22, 1980, mailed a letter to Kieffer invoking the sixty day extension period in order to cure the title objections and close the transaction. On February 11, 1980, defendants notified plaintiff that they would not sign the deed unless ordered by the court to do so. On March 3, 1980, during the 60 day extension, plaintiff filed suit for specific performance to enforce the option to purchase. Attached to the petition was a verification stating that Johnson and Maxey, representing 100% of Greenleaf’s shareholders, declared that the allegations of the petition were true and correct to the best of their knowledge and belief.

We are convinced that under jurisprudence regarding the doctrines of estop-pel, informal ratification, and apparent authority, Greenleaf was bound by Johnson’s exercise of the option. Skye Realty Co. v. Diversified Ins. Agency, Inc., 221 So.2d 871 (La.App. 3rd Cir. 1969); General Finance Corp. of New Orleans v. Harrell, 188 So.2d 211 (La.App. 1st Cir. 1966); Russ v. United Farm Equipment Co., 230 La. 889, 89 So.2d 380 (1956); and Acadian Production Corp. of La. v. Savanna Corp.,222 La. 617, 63 So.2d 141 (1953). Having found that Greenleaf was bound, we hold that defendants were equally bound.

For the reasons assigned, the judgment of the trial court is reversed and set aside. It is now ordered, adjudged and decreed that there be judgment in favor of plaintiff granting it specific performance of the option agreement entered into with defendants. All costs to date are assessed against defendants.

REVERSED AND RENDERED.

CULPEPPER, J., concurs and assigns reasons.

DOMENGEAUX, J., dissents and assigns reasons.

STOKER, J., dissents for the reasons assigned by DOMENGEAUX, J., and assigns additional reasons.

CULPEPPER, Judge,

concurring in the majority opinion.

In my view, the essential issue in this case is whether the letter written by Albin S. Johnson, president of Greenleaf, dated August 10, 1979 and received timely by defendants constituted exercise of the option by Greenleaf to purchase, even though there was no formal resolution of the board of directors of Greenleaf authorizing Johnson to exercise the option.

I think Johnson clearly had apparent authority from Greenleaf to exercise the option. He was president of the corporation and had signed the original lease and option agreement. In a subsequent letter written by Greenleaf’s attorney, Mr. Henry, on October 11,1979, the exercise of the option by Johnson was recognized and defendants were advised of plans to examine the title and have a survey made, all in accordance with the option agreement. Defendants were fully aware of all of these actions by Johnson as the apparent agent for Green-leaf. Actually, defendants participated in negotiations regarding the title difficulties. I think there is no question that Johnson had apparent authority from Greenleaf to exercise the option on its behalf and that Greenleaf was bound by Johnson’s actions in exercising the option. Since Greenleaf was bound by Johnson’s exercise of the option, it necessarily follows that a binding contract between Greenleaf and defendants existed from the time of the exercise of the option by Johnson, and that both parties had a right to enforce the contract by a suit for specific performance.

In my view, it would not only be inequitable but inconsistent with legal principles regarding obligations to hold that although Greenleaf was bound by the actions of Johnson in exercising the option with apparent authority, the defendants were not bound, and that defendants could proceed to act and negotiate all during the time of the title examination and survey as if the option were being exercised and then change their position and make the technical argument that there was no exercise of the option by Greenleaf because there was no resolution of its board of directors.

For the reasons assigned, I concur with the majority opinion.

DOMENGEAUX, Judge,

dissenting.

At issue is whether a corporation can specifically enforce an option to purchase immovable property when the option to purchase was purportedly accepted or exercised by either its president or its attorney, neither of whom had written authority to buy (or sell) immovable property on behalf of the corporation at the time they attempted to exercise the option or at any time prior to November 1, 1979, at which time the option expired under its own terms.

In January of 1979, plaintiff, Greenleaf Plantation, Inc. (Greenleaf), leased for agricultural purposes a large tract of land in Grant Parish from John Kieffer and Arnold R. Kilpatrick, the defendants herein. The one year lease, which began February 1, 1979, and expired January 31, 1980, called for a rental payment of $10,000.00.

Contemporaneously with the signing of the lease, the defendants executed an agreement granting Greenleaf an option to purchase the leased premises for an agreed upon amount per acre. The president of Greenleaf, Albin Johnson, signed both documents on behalf of Greenleaf. The option was to terminate on November 1, 1979, but could be exercised by Greenleaf by delivering to the defendants, within thirty days prior to November 1, 1979, written notice of its (Greenleaf’s) intent to exercise the option.

On August 10, 1979, (more than thirty days prior to November 1, 1979), Greenleaf, through Johnson, expressed in writing to defendants its intention to exercise the option to purchase the property. In ensuing correspondence, plaintiff’s attorney, Michael Henry, on October 11, 1979, (which was within thirty days prior to November 1, 1979), notified defendants of Greenleaf’s intention to exercise the option, and on January 22, 1980, Greenleaf’s attorney informed the defendants that Greenleaf decided to complete the transaction despite certain title objections. However, on January 28, 1980, defendant Kieffer issued notice to Greenleaf to vacate the leased premises within thirty days, but on February 8,1980, Greenleaf’s attorney notified defendants of the closing date set for February 19, 1980. Finally, on February 22, 1980, defendants’ attorney responded that his clients had no intention of conveying the property because they felt that Greenleaf either never had a valid option, or forfeited or annulled the option by other actions. Thereafter, on March 3, 1980, plaintiff sued to force the sale of the property.

After trial was conducted on September 16, 1980, the district court rendered judgment on October 23, 1980, in defendants’ favor for two reasons: (1) There was no real meeting of the minds between the plaintiff and defendants; and (2) Albin Johnson, Greenleaf’s president, did not have the necessary written authority to contract for the purchase of immovable property. Greenleaf has appealed and the majority has decided in Greenleaf’s favor, holding that its attorney’s letter to the defendants constituted timely notice of its intent to exercise the option. I disagree.

NECESSITY FOR WRITTEN AUTHORITY

Albin Johnson and James Maxey have been Greenleaf’s only shareholders and officers since Greenleaf was incorporated on March 14,1977. However, it is uncontested that neither Johnson nor Maxey nor the attorney, Michael Henry, was ever given written authority by the corporation to buy, sell, or otherwise contract for the purchase of real estate on its behalf prior to the filing of suit for specific performance on March 3, 1980. Nevertheless, the majority concludes that the attorney’s letter of October 11, 1979, effectively exercised the option on Greenleaf’s behalf, entitling it to specific performance under La.C.C. Art. 2462. By so holding, the majority ignores firmly entrenched legal principles which require contracts affecting immovable property to be in writing.

Not only must transfers of immovable property be in writing, La.C.C. Art. 2275, but a contract granting an option to buy immovable property must be in writing, La.C.C. Art.2462, and the exercise of an option must also be in writing. Barchus v. Johnson, 151 La. 985, 92 So. 566 (1922), since these contracts concern the disposition of immovables. Most importantly, however, Louisiana courts have required that a mandate or power of attorney to sell or purchase land for another must also be in writing. La.C.C.Art. 2992; Bordelon v. Crabtree, 216 La. 345, 43 So.2d 682 (1949); Tchoupitoulas, Inc. v. McCullough, 349 So.2d 346 (La.App. 4th Cir. 1977), writ denied 351 So.2d 166 (La.1977); Rebman v. Reed, 335 So.2d 37 (La.App. 4th Cir. 1976), writ denied 338 So.2d 699 (La.1976); White v. Batson, 317 So.2d 205 (La.App. 1st Cir. 1975), writ denied 320 So.2d 915 (La.1975); Opelousas-St. Landry Bank & Trust Co. v. Bruner, 13 La.App. 337, 125 So. 507 (1st Cir. 1929).

Since a mandate or power of attorney to sell or purchase immovable property for another must be in writing, authority to exercise an option to purchase immovable property on behalf of another must also be in writing. The exercise of an option has the same practical effect as a sale since an option, once accepted, accords to either party the right to specifically enforce the agreement (See C.C. Art. 2462). Furthermore, since the exercise of an option must be in writing, it seems only logical to require that the authority to exercise the option be clothed with equal dignity.

The majority sidesteps this issue by observing that all the defendants bargained for in order for Greenleaf to validly exercise the option was written notice of that intent and that “this is precisely what they [defendants] received.” In view of the significant rights which attach to an accepted option, I would hold that the defendants bargained for written notice of that intent by one legally authorized in writing to exercise the option. Since no one legally authorized in writing to exercise the option on behalf of plaintiff ever communicated written notice of Greenleaf’s intent prior to November 1, 1979, the option expired under its own terms. Later efforts to ratify the attempted exercise of the option must fail because the option expired when not timely exercised by one legally authorized in writing.

The majority concludes that the lack of a corporate resolution authorizing Johnson to exercise the option does not defeat Green-leaf’s claim to specific performance, and cites several cases wherein an act performed by a corporate officer was upheld by the courts even though the officer lacked written authority to so act.

Bonura v. Christiana Bros. Poultry Co. of Gretna, Inc., 336 So.2d 881 (La.App. 4th Cir. 1976), writ denied 339 So.2d 11 (La.1976); Richard Apartments, Inc. v. Shadix, 150 So.2d 602 (La.App. 4th Cir. 1963); and Trichel Contracting Company v. Little Creek Oil Company of Louisiana, 84 So.2d 874 (La.App. 2nd Cir. 1956), are all easily distinguishable from the instant case. In none of those cases did the corporate officer engage in a contract involving the transfer of immovable property. Thus, written authority to act on the corporation’s behalf was not required in any of those cases.

In Louisiana National Bank of Baton Rouge v. Heroman, 280 So.2d 362 (La.App. 1st Cir. 1973), writ refused 281 So.2d 755 (La.1973), the president of Southern Real Estate Investments, Inc. executed a note and mortgage on behalf of Southern at a time when no written authority for him to do so existed. Two days later, the corporation adopted a resolution which the court found constituted a ratification of the president’s execution of the note and mortgage. Subsequently, the mortgaged property was judicially sold pursuant to the executory proceeding. Then the plaintiff instituted this suit against the personal endorsers of the note to obtain a deficiency judgment. Over the endorsers’ contentions, the court found that the retrospective nature of the ratifying resolution was effective.

The Heroman case is distinguishable from the instant case because, in Heroman, the president’s authority to act for Southern was never questioned prior to the adoption of the resolution ratifying the president’s actions, whereas in the instant case the defendant-landowners’ refusal to sell preceded both Greenleaf’s suit and the shareholder’s attempted ratification. Furthermore, their refusal came after the option expired under its own terms.

Ideal Savings & Homestead Association v. Kerner, 208 La. 978, 23 So.2d 200 (1945), is also distinguishable. There, the Homestead advertised a certain piece of its property for sale. The property was sold to Kerner with the president of the Homestead signing on its behalf as vendor. The sale, authentic in form, recited that the president was duly authorized by the Board of Directors through a resolution attached to the act of sale. Fifteen months later, after Kerner had improved the property, the Homestead sued to annul and cancel the sale of the property to Kerner on the ground that its president was without authority to sell the property. It appears that the Homestead’s president never accounted for the purchase price. It also appears that the resolution authorizing the president to purchase the property was never attached to the sale. Without deciding whether or not a resolution was in fact passed by the Homestead’s Board of Directors, the Supreme Court held that the manner in which the Homestead conducted its affairs justified Kerner’s good faith belief that the president and directors of the corporation, who had participated in the transaction, had the ostensible and apparent authority to sell the property and receive the purchase price on behalf of the Homestead. Thus, the Homestead was estopped from asserting lack of authority in its president to sell the property against the innocent good faith purchaser, Kerner.

The Kerner holding cannot serve as the basis for a reverse application of the apparent authority doctrine here. While this doctrine may be used against corporations to hold them to acts of their agents, Kerner does not hold, and the majority cites no cases which do hold, that the doctrine can be used by corporations in their own behalf against persons who deal with the corporation’s unauthorized agent. With only Ker-ner as authority, I would refuse to apply the apparent authority doctrine here to compel defendants to sell their immovable property to a corporation based upon the representation of an unauthorized agent.

Even if, as the majority suggests, the above cases stand for the proposition that Johnson had the requisite (albeit unwritten) authority to accept the option on Green-leaf’s behalf, since he was a stockholder as well as the president of Greenleaf, Greenleaf’s suit for specific performance must be dismissed because the majority has held that it was the attorney’s notice of October 11, 1979, rather than Johnson’s notice of August 10, 1979, which constituted the timely written notice of plaintiff’s intent to exercise the option,

Plaintiff’s attorney was neither stockholder nor officer of Greenleaf when he sent his written notice to defendants, and there was no evidence that he was ever authorized, before or after November 1, 1979, by Greenleaf to exercise the option. Since the attorney’s notice was not exercised by the purchaser (Greenleaf) nor delivered by the purchaser (see Footnote 1), and there was no evidence that he was authorized by Greenleaf, I conclude that the attorney’s letter of October 11,1979, had no effect whatsoever.

It is of no moment that defendants did not question the authority of Johnson or the attorney prior to November 1,1979. As the party seeking to exercise the option, it was incumbent upon Greenleaf to provide a valid written exercise of the lease. Failing to do this within the prescribed time, Green-leaf should not now be heard to complain that the defendants have refused to sell their property on the ground that Greenleaf never exercised the option.

The majority is “not inclined to allow” the defendants to urge, on the one hand, that a corporate resolution of authority was necessary for one of Greenleaf’s agents to validly exercise the option, while contending, on the other, that such a resolution was unnecessary for the lease agreement to be valid. I see nothing inconsistent or wrong with such a position. In fact, I believe defendants’ position is well-founded. Leases of immovable property need not be in writing, La.C.C. Art. 2683, therefore an agent’s authority to lease immovable property for another need not be in writing, Hammonds v. Buzbee, 170 La. 573, 128 So. 520 (1930).

Finally, I disagree with the majority’s belief that “the more important question is whether Greenleaf had the intent and willingness to incur the obligation.” Because this is a transaction involving the transfer of ownership of immovable property, the most important inquiry should be whether Greenleaf, acting through an agent duly authorized in writing, validly exercised its option to purchase the defendants’ property, thereby entitling it to specific performance. I would hold that it did not, and is therefore not entitled to specific performance.

For the above reasons, I respectfully dissent.

STOKER, Judge,

dissenting.

I dissent for the reasons assigned by Judge Domengeaux. Additionally, it is appropriate to emphasize that the evidence indicates the plaintiff corporation, Green-leaf Plantation, Inc., never in fact authorized either its president or its attorney at law to act to accept the option. Hence, we are faced with a situation in which it is not only a question of lack of written authority for a corporate agent to act for the corporation but also question of no authority at all.

      . John P. Kieffer died April 19, 1981. Pearl Kieffer, his widow, administratrix of his estate is the voluntary appellee pursuant to Rule 13, Section 1 of the Uniform Rules of the Courts of Appeal.

      . The size of the tract was never established. According to the property description, the tract contains “244 acres more or less, together with all alluvial deposits adjacent there to.” The defendant property owners believe the tract contains about 565 acres. However, a survey of the property commissioned by Greenleaf placed the size of the tract at 461 acres; the ownership of the other 104 acres is in dispute but/has no bearing on the outcome of this case.

      . According to the majority opinion, anyone could provide written notice of Greenleaf s intent to exercise the option despite language in the provision of the option quoted by the majority, which plainly provides: “This option . .. shall be exercised by PURCHASER ” and “PURCHASER shall deliver to OWNERS ... written notice of PURCHASER’S intent to exercise the option.” (Italics added) Since the purchaser was a corporation, only one duly authorized in writing to act on its behalf could exercise the option.

      . Johnson’s written exercise of the option dated August 10, 1979, was not delivered “within thirty (30) days prior to November 1, 1979" (emphasis added) as required by the terms of the option, a fact which the majority must concede since it holds that the attorney’s letter of October 11, 1979 constituted the requisite notice.


author: LABORDE, Judge.

text:
    Steven Lee EDWARDS, Plaintiff-Appellee, v. STATE of Louisiana, DEPARTMENT OF TRANSPORTATION & DEVELOPMENT, et al., Defendants-Appellants.
    No. 8334.
    Court of Appeal of Louisiana, Third Circuit.
    July 30, 1981.
    Rehearing Denied Sept. 22, 1981.

      Gold, Little, Simon, Weems & Bruser, John F. Simon, Alexandria, for defendants-appellants.
    John W. King, Baton Rouge, Monty L. Doggett, Natchitoches, for plaintiff-appel-lee.
    Before CULPEPPER, STOKER and LABORDE, JJ.
   LABORDE, Judge.

This is a tort suit arising from a one-car accident in which Steven Lee Edwards was left paralyzed from his chest down. The accident occurred on Louisiana Highway 117, which was undergoing reconstruction by K&M Construction Co., Inc. as contractor for the State of Louisiana, Department of Transportation and Development. The incident began when Edwards allowed the right wheels of his vehicle to drop off the road surface onto the shoulder. He lost control of his car as he attempted to re-enter the highway, causing the accident and his resulting injuries. There was a three inch drop-off from the road surface to the shoulder.

Edwards filed suit against the State of Louisiana, Department of Transportation and Development (Department), K&M Construction Co., Inc. (K&M), the contractor engaged in the reconstruction of the highway and Bituminous Casualty Corporation (Bituminous), the liability insurer of K&M. The Department filed third party demands against K&M and Bituminous, seeking indemnity or contribution toward any amount that may be awarded to Edwards against the Department. K&M and Bituminous filed third party demands against the Department seeking the same.

The trial court found that K&M and the Department were negligent, which negligence was a cause in fact of the accident. The trial court further found that Edwards was driving in excess of 55 miles per hour and that his driving was “substandard under the circumstances.” However, the court went on to hold that Edwards’ substandard conduct did not preclude his recovery and rendered judgment against defendants in the sum of $450,000 as general damages and in the sum of $46,483.40 in special damages. The third party demands were denied.

The Department and K&M appeal and Edwards answers the appeal seeking an increase in the amount of the award,

The issues presented by the assignments of error are as follows:

(1) Whether the Department was negligent;
(2) Whether K&M was negligent;
(3) Whether Steven Edwards was negligent and, if so, whether such negligence should bar his recovery;
(4) Whether the defendants were strictly liable under Civil Code Article 2317; and
(5) Whether the general damage award was excessive or inadequate.

FACTS

On July 17, 1978, at approximately 8:15 P.M., Steven Edwards was driving his 1974 Audi automobile in a southerly direction on Highway 117 and in particular, a stretch of that highway running between Provencal and Bell wood in Natchitoches Parish, Louisiana. It was approaching dusk on a clear, dry day. Highway 117 is a two lane highway that was undergoing reconstruction. At the point of the accident, and for several miles north and south of the accident site, the shoulders of the highway had not yet been raised to the level of the new asphalt overlay, and there was a drop-off from the riding surface to the shoulder of approximately three inches.

As Edwards was driving his vehicle in a southerly direction he allowed the right wheels of his vehicle to go off the asphalt and onto the shoulder at a point where the highway made a gradual curve to his left. He subsequently attempted to re-enter the highway and, upon doing so, lost control of his car causing it to skid sideways across the highway for about 170 feet, run off the left side of the road and continue on for 120 feet before coming to a rest after having turned over at least once. There were no witnesses to this single car accident other than the driver, Edwards. Edwards was seriously injured in the accident and has no recollection of the events just prior to or right after the accident due to traumatic amnesia regarding how the accident happened. Edwards received multiple injuries. His spine was fractured at T 4-5 vertebra resulting in irreversible paraplegia. He is paralyzed from his chest downward.

NEGLIGENCE OF THE DEPARTMENT

The general duties of the Department toward the traveling public are set forth in the recent case of Sinitiere v. Lavergne, 391 So.2d 821 (La.1980) where the Supreme Court held as follows:

“It has been repeatedly stated that the Department is not a guarantor of the safety of travelers but, rather, owes a duty to keep the highways and its shoulders reasonably safe for non-negligent motorists. Liability based upon negligence is imposed when the Department is actually or constructively aware of a hazardous condition and fails to take corrective action within a reasonable time.3
Since road shoulders are only designed for temporary use when a motorist finds himself off the roadway, the Department’s duty of care is generally discharged at a level of construction and maintenance less than that required for the primary road surface. However, an implicit necessity for the functional use of a shoulder is a connection between the roadway and shoulder that allows for safe gradual movement from one to the other.”

With these principles in mind, we will examine the facts as they existed at the time of the accident.

The record shows that the surface overlay work was completed by May 10, 1978, and that the resurfacing resulted in a three inch drop-off to the shoulder on each side of the highway. The shoulder was not raised until sometime after the July 17, 1978, accident, over two months later.

The trial court found that the Department was negligent because it was aware of the patently or obviously dangerous drop-off from the blacktop to the shoulder of the highway yet failed to correct it within a reasonable time which was a cause in fact of Edwards’ accident. A review of the record leads this court to the conclusion that the lower court was not manifestly erroneous in its conclusion. See Brown v. Louisiana Dept. of Highways, 373 So.2d 605 (La.App. 3rd Cir. 1979), writ den., 376 So.2d 1269 (1979); Brandon v. State, Through Dept. of Highways, 367 So.2d 137 (La.App. 2nd Cir. 1979), writs ref’d, 369 So.2d 141 (1979); Sinitiere v. Lavergne, supra. On appeal therefore, we are without power to disturb this finding. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

NEGLIGENCE OF K&M

The contractor, K&M, argues it should not be held to share responsibility with the Department.

The record shows that the Department contracted with K&M to reconstruct the highway in question which included the shoulders. Under the contract K&M had 120 working days to complete the project. In addition, the Department required that the shoulder material meet certain rigid specifications before it could be used.

The diaries in evidence show that K&M began putting shoulder material on the 61st day of the contract. The Department began its testing and found that the materials did not meet the requisite specifications. K&M tried, with the materials it had on hand, to meet the specifications but failed to do so. As a result, the Department shut down the contractor’s work stating “Contractor shut down until samples of shoulder gravel approved.”

K&M argues that its efforts in trying to meet the specifications and fulfill the contract were prudent and reasonable and that it should not be cast.

The jurisprudence holds that anyone contracting with the Department to do road repair is obligated not to expose the traveling public to undue hazards. Hale v. Aetna Casualty & Surety Co., 273 So.2d 860 (La.App. 2nd Cir. 1973), writ denied, 275 So.2d 867 (1973).

Thus, K&M owed a duty to the public beyond the literal fulfillment of the plans and specifications of its contract with the Department.

The trial court specifically found:

“The evidence shows that K&M completed the center portion of the highway which was 22 feet in width over two months before the accident. Their delay in building up the shoulders to the level of the blacktop was due to the lack of material to meet the standard set by the State. The length of time allowing this drop-off has left no doubt in the mind of this Court as an unreasonable length in the delay to have dangerous condition remedied.”

The trial court further found that K&M’s failure to correct the dangerous drop off was a cause in fact of the accident.

A review of the record convinces this court that the trial judge was correct in finding K&M negligent under the circumstances presented. We agree that the trial court correctly held K&M liable and we will not disturb this finding on appeal. Arceneaux v. Domingue, supra.

NEGLIGENCE OF STEVEN EDWARDS

The trial court found that Edwards’ driving was “substandard under the circumstances” yet held that his substandard conduct did not preclude his recovery against defendants. We conclude the trial court erred in this finding.

A motorist owes the duty of reasonable care which encompasses the additional duties of keeping his vehicle under control and maintaining a proper lookout for hazards. Sinitiere v. Lavergne, supra. In the Sinitiere case, the Supreme Court discussed the limits of this duty as follows:

“In Rue, supra, this Court stated that a motorist’s duty to drive reasonably does not extend to the risk of injury from striking an unexpected and unexpectable hazard resulting from a negligently maintained highway shoulder. The reason for this statement was the jurisprudentially recognized rule that a motorist has a right to assume that highway shoulders are maintained in a reasonably safe manner in the absence of knowledge or reason to know of a defect.”

However, the Court did not stop there but instead went on to discuss the limits of Rue and the significance of knowledge of the defect on the part of the driver as follows:

“This language does not establish the highway shoulder as a “zone of recovery” for every straying motorist. Rather, it states the simple principle that the law will not automatically bar a person from recovery or charge him with liability visa-vis third parties where the law does not charge that person with actual or constructive knowledge of an avoidable danger. Thus, if a person is chargeable with knowledge of a shoulder defect that could cause serious injury and, nevertheless, disregards his own safety and the safety of others, the law considers his actions in leaving the main travel portion of the roadway to be a breach of his duty to himself and to the others who can reasonably be expected to be injured by his actions. See Rodgers v. Department of Highways, 376 So.2d 1295 (La.App.2d Cir. 1979); Morrow v. Department of Highways, 377 So.2d 430 (La.App.2d Cir. 1979).”
(Emphasis added)

A review of the record leads this Court to the conclusion that Steven Edwards did breach the duty of reasonable care owed himself at the time he attempted to re-enter the surface portion of the highway.

The testimony of Edwards reveals that he was fully aware of the shoulder’s dangerous condition. He had driven the road many times while the overlay project was in progress. At the trial, when asked whether or not he knew there was a drop off from the asphalt to the shoulder along this road, he replied, “Yeah, it scared me to death.”

The record also shows that it was a clear day and that the road surface was dry. Although it was approaching dusk, the record supports that there was sufficient daylight at the time of the accident. State Trooper, Earl K. Townsend, who was the investigating officer and who was qualified as an expert in the field of accident reconstruction insofar as determining the speed of a vehicle from his investigations, testified at trial. It was Trooper Townsend’s opinion that the Edwards vehicle was traveling at a speed of 65 miles per hour when it left the travel portion of the highway and that the accident was caused by the high speed of the car. Another expert, consulting engineer Herman Workentin, who was also qualified in the field of accident reconstruction, estimated the speed of Edwards’ car at 71 miles per hour when it left the highway. Likewise it was Mr. Workentin’s opinion that the speed of the car was a cause of the accident.

In addition, the trial judge found, as matters of fact, that Edwards lost control of his vehicle while attempting to maneuver it back onto the travel portion of the highway; that Edwards knew of the drop-off for over a four to six week period; and that Edwards was driving in excess of 55 miles per hour in violation of state speed limits.

There is nothing in the record to indicate that Edwards could not have remained on the shoulder until he had reduced his speed enough that re-entry could have been safely made.

Under these circumstances, we hold that the actions of Edwards were substandard and amounted to a breach of the duty of reasonable care owed himself. Further, the breach was a cause in fact of the harm he encountered.

Our finding that Edwards’ negligence contributed substantially to the accident bars his recovery against any of the defendants.

STRICT LIABILITY UNDER C.C. 2317

By way of a supplemental brief, plaintiff argues in the alternative that the Department and K&M are strictly liable for the damages suffered by him. Since we have concluded that plaintiff’s right of recovery is barred under the negligence theory of recovery (LSA-C.C. Article 2315) we find it necessary to discuss and consider this claim.

This court, in the recent case of Godwin v. Government Emp. Ins. Co., 394 So.2d 751 (La.App. 3rd Cir. 1981), discussed strict liability under Article 2317. In Godwin, the court stated:

“Louisiana Civil Code Article 2317 provides in pertinent part:
“We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. ...”
In Loescher v. Parr, 324 So.2d 441 (La.1975), the Louisiana Supreme Court discussed the concept of strict liability and described the legal foundation for such liability in the following manner:
“When harm results from the conduct or defect of a person or thing which creates an unreasonable risk of harm to others, a person legally responsible under these code articles for the supervision, care, or guardianship of the person or thing may be held liable for the damage thus caused, despite the fact that no personal negligent act or inattention on the former’s part is proved. The liability arises from his legal relationship to the person or thing whose conduct or defect creates an unreasonable risk of injuries to others.”

In Jones v. The City of Baton Rouge—Parish of East Baton Rouge, 388 So.2d 737 (La.1980), the Louisiana Supreme Court summarized the plaintiff’s burden of proof in a strict liability action, the court therein stated:

“Because the responsibility for preventing the unreasonable risk of injury to others is unconditional, the injured party seeking damages under article 2817 need not prove that any particular act or omission on the part of the defendant caused his injuries. He must only prove that the thing which caused the damage was in the care or custody of the defendant, that the thing had a vice or defect — that is, that it occasioned an unreasonable risk of injury to another — and that his injury was caused by the defect. Loescher v. Parr, supra, at pp. 446-447; Verlander, Article 2317 Liability: An Analysis of Louisiana Jurisprudence Since Loescher v. Parr, 25 Loyola L.Rev. 263 (1979).”

In the Godwin case the court also discussed strict liability on the part of public bodies saying:

“Prior to the Supreme Court’s decision in Jones, supra, this court refused to subject public entities to liability under Civil Code Article 2317 for fear that such liability would lead to “chaotic results”. Gallien v. Commercial Union Ins. Co., 353 So.2d 1127 (La.App. 3rd Cir. 1977). However, in Jones, supra, the court concluded that the Louisiana State Constitution of 1974 mandates such liability on the part of public bodies.”

Evidence adduced at trial established that the Department and K&M had custody or control over the highway and its shoulders to the extent that both bear responsibility for damages caused by any defects in the shoulder. The evidence also establishes that the shoulder was defective at the time of the accident; the defect was such that it occasioned an unreasonable risk of injury; and the defect was a cause in fact of plaintiff’s damages. Therefore, considering these findings, plaintiff is entitled to recovery under the provisions of LSA-C.C. Article 2317 unless his recovery is barred by some available defense to such an action.

In Loescher v. Parr, 324 So.2d 441 (La.1975) it was established that once the plaintiff proves custody, defect and causation, a defendant can escape liability only by showing fault of the victim, the fault of a third person, or an irresistable force.

This court, in Wilkinson v. Hartford Accident & Indemnity Co., 400 So.2d 705 (La.App. 3rd Cir. 1981), under the circumstances there presented equated the measure of conduct necessary to achieve “contributory negligence” to the same measure necessary to amount to “victim fault” under Article 2317.

For the same reasons, we conclude that plaintiff was guilty not only of contributory negligence but also of “victim fault” such that the Department and K&M are not liable for his injuries under Article 2317.

The last issue regarding quantum is rendered moot by our holding on appeal.

For the above reasons, the judgment of the trial court is reversed and set aside and it is now- ordered, adjudged and decreed that plaintiff’s suit against defendants be dismissed with prejudice. It is further ordered that plaintiff-appellee is cast for all costs, both at the trial level and on appeal.

REVERSED AND RENDERED.

STOKER, J., concurs.

CULPEPPER, J., concurs on the basis that the Sinitiere case is controlling.

      . In so holding, the trial judge relied on Rue v. State, Department of Highways, 372 So.2d 1197 (La. 1979), the leading case at the time. Since the judgment in this case was signed September 19, 1980, and since the Supreme Court did not render its decision in Sinitiere, supra until November 10, 1980, the trial judge did not have the benefit of the Sinitiere decision.

      . This factor distinguishes this case from the recent case of McDaniel v. State of Louisiana, Department of Transportation and Development, 398 So.2d 88 (La.App. 3rd Cir. 1981), handed down by this court on April 15, 1981.


author: SAMUEL, Judge. SCHOTT, Judge,

text:
    Roger A. ESPENAN v. Margaret Gormley, Wife of Roger A. ESPENAN.
    No. 11738.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 30, 1981.
    Concurring Opinion on Denial of Rehearing Sept. 17, 1981.

      Seelig, Cossé & Frisehhertz, Irvy E. Cossé, Jr. and David H. Seelig, New Orleans, for plaintiff-appellee.
    Jesse S. Guillot, New Orleans, for defendant-appellant.
    Before SAMUEL, SCHOTT and GARRISON, JJ.
   SAMUEL, Judge.

This is an appeal by the mother from a judgment changing custody of a 3'A year old minor from herself to the father. The facts, in chronological order, are as follows:

On March 7, 1977 the husband filed a petition for separation. Judgment of separation was rendered by default in his favor on March 28,1977. The judgment awarded the wife custody of the child and $50 semimonthly for child support. Shortly thereafter the wife moved to Florida, leaving the child in New Orleans in the father’s care.

Six months later the father filed a petition for a change in custody and requested the appointment of a curator to represent the absent mother. After this pleading had been filed, but before the curator had been served, the mother returned to Louisiana, ostensibly to visit the child, and took the child with her to Florida.

The curator filed a general denial and an exception to the jurisdiction, whereupon the father went to Florida and returned to Louisiana with the child. Following trial, on May 8, 1978, judgment was rendered granting the father temporary custody. On May 12, 1978 a further hearing was held at which the mother personally appeared. Following this hearing, there was judgment incorporating the provisions of the May 8, 1978 judgment with regard to the temporary custody, granting visitation rights to the mother, ordering the mother not to remove the child from the home of her father (the maternal grandfather’s home) except for medical purposes, and the matter was continued to June 23, 1978.

The curator then applied to this court for writs on the question of jurisdiction. Writs were refused on the ground that the petition for change of custody had been filed while the child was still in Louisiana and the wife’s action in taking the child to Florida did not deprive the Louisiana court of jurisdiction.

The curator then applied to the Supreme Court for writs which were granted with an order directing the trial judge to set the matter for immediate hearing. 365 So.2d 822. Pursuant to this order, on February 22, 1979 the mother appeared and informed the court she could not afford an attorney here. She told the court she had engaged an attorney in Florida, who had filed a petition for divorce and a request for custody in that state, and that if she were awarded custody by the Louisiana court she would take the child to Florida where she was currently residing.

Concluding it could not conduct a hearing if the mother was not represented by counsel, the court continued the custody granted to the husband and ordered immediate visitation rights to the mother at the home of her parents. A written judgment to this effect was signed on April 19, 1979, awarding the father “the care, custody and control of the minor”, ordered the domicile to be maintained at all times within the jurisdiction of the Civil District Court, the minor not to be removed from Orleans Parish without prior court approval, and gave immediate visitation rights to the mother whenever she was able to return to New Orleans. The mother was specifically ordered not to remove the child from the jurisdiction of the court or from the premises where visitation was to take place. No appeal was taken from this judgment.

On October 24, 1979, the divorced wife, now remarried and living in Louisiana, filed a “Rule to Annul Temporary Order of Custody”. The husband then filed an answer in opposition and, on December 14,1979, the matter came to trial. The judgment appealed from was signed December 21, 1979. It is in favor of the father “maintaining his ‘Answer in Opposition to Rule to Annul Temporary Order of Custody’ ”, and against the mother “dismissing her rule to ‘Annul Temporary Order of Custody’, the court finding that the judgment granting the custody, care and control of the minor Renee Espenan, to Roger A. Espenan on April 19, 1979, is valid and in full force and effect.”

The wife has appealed from this judgment. In this court she contends: (1) The father forcefully abducted the child from Florida and returned to Louisiana in order to obtain jurisdiction of this court; and (2) she has remarried, now lives in Louisiana, and temporary custody granted to the husband is no longer necessary.

We do not agree with appellant’s first contention. It is clear the mother chose to go to Florida and voluntarily left the child for an extended period in Louisiana with the father. As the Louisiana court had jurisdiction over both litigants in the separation suit, in which suit it initially granted custody to the mother, and as the petition to change custody was filed while the child was in Louisiana, our courts retained jurisdiction over the matter. There is no evidence to suggest, as argued by the mother, that the child was “kidnapped” by the father in order to obtain jurisdiction in our state, or that the father was “shopping” for a favorable forum.

Nor do we agree with appellant’s second contention. An action of nullity (Code of Civil Procedure Articles 2001, et seq.) can be obtained only on the specific grounds enumerated in those articles and must be sought in an ordinary proceeding and not, as here, by rule. In addition, nullity is not an appropriate remedy in this case. Even if the judgment appealed from is declared null, as requested by appellant, such action would not automatically reinstate the original separation judgment granting custody to her. In any event, in the context of a “final” judgment as contemplated by Code of Civil Procedure Article 2001, custody is always subject to change.

As the title given to their pleadings by litigants is not solely determinative, we could consider appellant’s rule as simply a rule to change custody. But even if we do so, such action would afford her no relief. The record does not contain sufficient evidence to support a reversal of the trial court judgment on this ground.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.

SCHOTT, Judge,

concurring in the denial of appellant’s application for rehearing:

While the record reflects that a complete hearing on custody was never held, this appears to be the fault of appellant who came to court unrepresented, admitted that she could not represent herself adequately, and provided no satisfactory excuse for her lack of representation. The record does not support our concluding that the trial judge abused his discretion.

On the other hand nothing precludes appellant from bringing a proper rule for custody and provoking a hearing to which the principles announced in Bordelon v. Bordelon, 390 So.2d 1325 (La. 1980) can be applied.

      . Her parents also testified at this hearing but their testimony was in response to orders from the court relative to visitation rights which were to take place on that day.

      . The curator was discharged and his fee set.

      . By a Florida decree silent as to custody.