author: LEAR, Judge.

text:
    Marian R. GARDNER v. ALLSTATE INSURANCE COMPANY.
    No. 82 CA 0054.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.
    Rehearing Denied Jan. 14, 1983.
    Robert T. Talley, Baton Rouge, for plaintiff-appellant Marian R. Gardner.
    Daniel R. Atkinson, Baton Rouge, for defendant-appellee Allstate Ins. Co.
    Before COVINGTON, LEAR and LANIER, JJ.
   LEAR, Judge.

This action arises from an automobile accident on August 8, 1979, in which a truck driven by an insured of defendant-appellee, Allstate Insurance Company, came into contact with an automobile driven by plaintiff-appellant, Marian R. Gardner, while both vehicles were being parked at a private residence. This suit was instituted for damages purportedly sustained as a result of this contact.

Trial was held before a jury, and verdict was rendered in favor of defendant-appel-lee. Judgment was signed accordingly, from which plaintiff-appellant has timely perfected this appeal.

The facts concerning the manner in which the accident occurred are disputed, and the jury’s finding of fact is raised as the issue on appeal.

Immediately prior to the accident appellant had opened her door and placed one foot on the ground; as a result, when contact was made with the insured’s vehicle, appellant’s leg was trapped in the door frame. The primary issue at the trial concerned the manner in which the contact between the vehicles was made, there being considerable conflict in the testimony as to what happened in the parking area.

It was established that appellant was in the process of getting out of her parked car when her car door was struck by the truck driven by the insured. Appellant contended that appellee’s insured backed into her while she was leaving her vehicle. Appellee contended that appellant opened her door into the path of an already moving vehicle.

Appellant’s testimony at trial conflicted with a prior version related by her in a deposition, and a passenger in appellant’s car also testified at the trial at variance to facts related in her deposition. Although these variations in the testimony related to the relative positions of the vehicles and not as to the resulting collision, defense counsel used these inconsistencies in characterizing appellant’s credibility.

At trial, appellee argued that its insured was not negligent in the operation of her vehicle, or, in the alternative, if the jury found that the insured was negligent, then appellant was contributorily negligent and/or assumed the risk of her conduct by failing to maintain a proper watch.

Appellant submits that the only issue on appeal is whether or not her actions constituted contributory negligence so as to bar her recovery.

Appellant argues that the jury must have found that she was contributorily negligent because there was no other justification for the verdict. She further argues that there was no evidence to support a finding of contributory negligence, and therefore the jury’s verdict was error.

The jury verdict is in general form and states merely that the finding was in favor of defendant-appellee. 'There is no indication that appellant was found contributorily negligent. It is quite possible, however, that the jury found as a fact that the defendant-appellee’s insured was not negligent; if so, there would have been no necessity for finding contributory negligence on appellant’s part in order to support the verdict.

It has long been a principle of Louisiana jurisprudence that a judgment of the trial court on questions of fact will not be disturbed on appeal unless shown to be manifestly erroneous. Although the courts of appeal have full and complete jurisdiction to review facts in civil proceedings (La. Constitution, Art. 5 § 10(B)), findings of fact are entitled to great weight. The appropriate standard of review, expressed in Arceneaux v. Domingue, 365 So.2d 1330 (La.1978), is defined as a two part test: the record of the proceeding must reveal a reasonable factual basis for the finding of the trial court, and a further determination that the finding is not “clearly wrong”. (365 So.2d at 1333).

The record of this action does not evidence a basis for reversal of the jury verdict. The jury had a reasonable factual basis in appellee’s insured’s testimony to find that she was not negligent in the operation of her vehicle; conversely, if the jury did find that the insured was negligent, there is a factual basis for the lower court to find that appellant contributed to the legal cause of the accident by failing to maintain a proper lookout for danger. Appellant, in fact, testified that if she had looked, she would have seen defendant’s vehicle approaching.

Appellant argues that the negligence of appellee’s insured was the sole.legal cause of the accident and, therefore, that the jury verdict was in error. Nowhere in his brief does counsel for appellant argue that the verdict was clearly wrong or manifestly erroneous.

It is possible that the jury found that the testimony of the appellee’s insured was more credible than that of appellant. In light of the fact that appellant contradicted her prior testimony at the trial, as did her principal witness, it does not appear that the jury’s finding was clearly wrong.

For the foregoing reasons, the judgment of the trial court is hereby affirmed. All costs, both at trial and on appeal, are to be paid by plaintiff-appellant.

AFFIRMED.

      . The cause of the suit arose on August 8, 1979, prior to the effective date of Act 431 of the 1979 legislature amending Civil Code Article 2323 to provide for comparative negligence.

      . Tauzin v. Claitor, 417 So.2d 1304 (La.App. 1st Cir.1982); Steele v. St. Paul Fire & Marine Insurance Company, 371 So.2d 843 (La.App. 3rd Cir.1979); Brown v. Hartford Insurance Company, 370 So.2d 179 (La.App. 3rd Cir.1979); Bolden v. New Orleans Public Service, Inc., 349 So.2d 377 (La.App. 4th Cir.1977).


source: Caselaw Access Project

author: LANIER, Judge.

license: Public Domain

text:
    T & J SERVICES, INC. v. HALL-BUCK MARINE SERVICE COMPANY.
    No. 82 CA 0055.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.
    David J. Mitchell, Porteous, Toledano, Hainkel & Johnson, New Orleans, for plaintiffs & appellants.
    Sidney A. Marchand, III, Talbot, Sotile, Carmouche, Waguespack, Donaldsonville, for defendant & appellee.
    Before COVINGTON, LEAR and LANIER, JJ.
   LANIER, Judge.

This is a suit seeking damages for breach of contract. The plaintiff-appellant, T & J Services, Inc. (T & J), alleged that Hall-Buck Marine Services Company (Hall-Buck) entered into a contract with it to deliver 11,785 tons of crushed limestone at a price of $7.85 per ton, that Hall-Buck breached this contract by failing to deliver the number of tons contracted for, that T & J was required to purchase some crushed limestone at a price of $9.90 per ton to meet its needs, and that Hall-Buck was indebted to it for the difference between the two purchase prices that T & J was required to pay totaling $12,189.30. La.C.C. arts. 1907 and 2458. The trial court ruled that the agreement between the parties was a contract to purchase and not a completed sale and dismissed T & J’s petition with prejudice. This devolutive appeal followed.

I. FACTS

On April 27, 1978, Munoz and Associates Contractors, Inc. (Munoz) submitted a bid to Illinois Central Gulf Railroad Company (ICG) for construction of a new railroad embankment. Munoz was the low bidder and was awarded the contract by ICG on May 15, 1978. Munoz then subcontracted the entirety of the job to T & J.

Prior to this time, Steve Faucheux of T & J contacted Steve Daigle, the vice-president in charge of traffic and sales for Hall-Buck, to get a quotation for the cost of crushed limestone to be used as ballast under the tracks and cross-ties on the railroad embankment. Daigle advised Faucheux that Hall-Buck would sell the amount of limestone required at a price of $7.85 per ton at the Hall-Buck landing in Geismar, Louisiana. On June 9, 1978, T & J issued a purchase requisition to Hall-Buck for 12,000 tons of limestone. During the period of September 2 through 5 of 1978, Hall-Buck brought 11,785 tons of crushed limestone to its landing in Geismar, Louisiana, and placed it in a segregated pile dedicated for the use of T & J. On September 5, 1978, Hall-Buck issued invoice No. 249/78 to T & J for the 11,785 tons at $7.85 per ton, eq-ualling a price of $92,512.25, plus 5% sales tax of $4,625.61, for a total invoice price of $97,137.86.

When invoice No. 249/78 was not paid by October 5,1978, Steve Daigle contacted Steve Faucheux concerning payment of the bill on several occasions. Eventually, Daigle was advised that Faucheux had left T & J’s employment. Daigle then attempted to contact Joe Romano, the owner of T & J, but was unsuccessful. Daigle then contacted representatives of ICG and Donald Clement and advised them that if no satisfactory agreement was reached on payment of the purchase price of the limestone, that the material would be sold to minimize losses.

After receiving Daigle’s call, Clement contacted Romano concerning payment of the purchase price of the limestone. Romano advised Clement that he could not pay the price until Munoz paid him. Clement testified that Munoz could not pay the price until ICG paid it. Clement then contacted ICG who agreed to pay 60% of the purchase price.

On November 15, 1978, Hall-Buck commenced selling crushed limestone from the stockpile dedicated to T & J. On November 17, 1978, ICG issued a check for $57,712.50 to Hall-Buck, T & J and Donald M. Clement Contractors, Inc., which sum represented the purchase price of 7,000 tons of crushed limestone at $7.85 per ton.

At the end of November or beginning of December in 1978, Daigle again called Clement demanding payment of the purchase price. Daigle advised Clement that the price of limestone was going up because of market conditions. During the period between November 15, 1978, and December 28, 1978, Hall-Buck sold 1,977 tons of the limestone stockpiled for T & J at $7.85 per ton. On January 10,1979, Hall-Buck issued a credit invoice to T & J giving it credit of $16,295.42 against the original purchase price for these sales.

On January 10, 1979, Hall-Buck also sent a letter to T & J demanding payment for the balance due on the original contract price of $23,129.94. Hall-Buck demanded payment not later than January 11, 1979, and had the letter hand carried to T & J’s office. Hall-Buck advised T & J that if it failed to pay the balance due by January 11, that it would sell the remaining 2,808 tons of limestone, which had not been paid for, leaving only 7,000 tons dedicated to T & J. Hall-Buck further advised T & J that effective January 15, 1979, it would cost T & J $9.90 per ton to acquire additional limestone. T & J made no payment on the purchase price.

On January 12 and 13, 1979, Hall-Buck sold an additional 2,447.5 tons of the limestone dedicated to T & J, leaving a balance of 7,360.5 tons dedicated to T & J’s use. By letter dated January 17, 1979, Hall-Buck advised T & J of these transactions and provided it with sale tickets for all sales of limestone dedicated to T & J for the period of November 15, 1978, through January 13, 1979.

Apparently after January 17, 1979, but prior to January 29, 1979, Munoz made demand on T & J to complete the job. Romano of T & J advised that it could not pay for the limestone at the increased price and on Donald Clement’s suggestion, assigned all of its rights to Donald Clement Contractors, Inc. Hall-Buck was contacted for additional limestone, but agreed to make the sale only if payment was guaranteed by ICG within thirty days of delivery at a price of $9.90 per ton. During the period of January 29, 1979, through February 23, 1979, Hall-Buck delivered 5,901 tons of limestone to T & J at a price of $9.90 per ton for a total purchase price of $60,756.69. Hall-Buck was paid by ICG on March 6, 1979. This litigation followed.

II. WAS THE AGREEMENT BETWEEN T & J AND HALL-BUCK A SALE?

The trial judge ruled that the agreement between Hall-Buck and T & J was not a completed sale, but was an agreement to sell and that Hall-Buck was thus not obligated to deliver that portion of the contract amount that had not been paid for.

A sale is an obligation to give by which one gives a thing for a price in current money, and the other gives the price to acquire the thing. La.C.C. arts. 1905 and 2439. A sale is completed and the title to the property which is the subject of the sale is acquired by the purchaser when there is an agreement for the object and the price, even though the object has not been delivered nor the price paid. La.C.C. arts. 1803, 1909, 2439, and 2456; Flatte v. Nichols, 233 La. 171, 96 So.2d 477 (1957); Robinson v. Jackson, 255 So.2d 846 (La.App. 2nd Cir.1971), writ denied 260 La. 700, 257 So.2d 155 (1972). In the instant case, Hall-Buck agreed to sell and T & J agreed to purchase II,785 tons of limestone at $7.85 per ton for a total purchase price of $97,137.86. This agreement consummated an act of sale between the parties. The ruling of the trial court that this agreement did not constitute a sale is clearly wrong.

III. DID HALL-BUCK LAWFULLY REFUSE TO DELIVER LIMESTONE WHICH HAD NOT BEEN PAID FOR?

The appellant argues that since there was a consummated sale between the parties, that the ownership of the limestone was in T & J and that Hall-Buck breached its contract by failing to deliver the specified quantity of limestone at the price agreed upon.

Steve Daigle testified that Steve Fau-cheux, on behalf of T & J, verbally agreed that T & J would pay for the limestone within thirty days of invoicing. Daigle further testified that delivery of the limestone was postponed until September of 1978 to coordinate the off-loading of the limestone at the Hall-Buck landing in Geismar, Louisiana, with the payment. This testimony stands uneontradicted in the record.

The buyer in a contract of sale is obligated to pay the price of the sale and to receive delivery of the object of the sale and remove it. La.C.C. art. 2549. If the buyer fails to pay the price of the sale at the time agreed upon, the seller has alternative remedies for enforcement of the terms of the contract or for its dissolution. La.C.C. arts. 2561 and 2564; Sliman v. McBee, 311 So.2d 248 (La.1975). In the instant case, T & J failed to pay the price of the limestone within the time period agreed to by the parties and thus breached its contract with Hall-Buck.

Pursuant to La.C.C. art. 2487, a seller is not bound to make delivery of the object of the sale if the buyer does not pay the price and the seller has not granted him any term for the payment. In the instant case, Hall-Buck did grant T & J a term of thirty days from invoicing to pay the purchase price and Article 2487 thus would not be applicable during that time period. However, after the term granted for payment expired and since T & J did not receive delivery of the limestone and remove it from the Hall-Buck landing in Geismar, Louisiana, prior to the end of the term, Hall-Buck became authorized to withhold completion of delivery until the price was paid after October 5,1978. A buyer who is in default by failing to pay the purchase price at the time agreed upon cannot maintain an action for damages for the seller’s failure to fulfill a contract of sale. Smith v. Anders, 148 La. 474, 87 So. 241 (1921); Louisiana Farm Bureau Rice, Inc. v. Miller, 389 So.2d 840 (La.App. 3rd Cir.1980); Bunge Corporation v. McGuffie, 317 So.2d 227 (La.App. 3rd Cir.1975).

IV. CONCLUSION

For the foregoing reasons, the judgment of the trial court dismissing the petition of T & J with prejudice is correct and is affirmed at the appellant’s costs.

AFFIRMED.

      . By a supplemental and amending petition, Donald M. Clement Contractors, Inc. and Munoz and Associates Contractors, Inc. were added as parties plaintiff. At the trial, the parties stipulated that all of the rights of T & J had been assigned to Donald M. Clement Contractors, Inc.

      . This left a balance due on the purchase price of $39,425.36, representing 4,785 tons at $7.85 per ton.

      . This left a balance due on the purchase price of $23,129.94, representing 2,808 tons of limestone at $7.85 per ton.

      . Only two witnesses testified at the trial, Steve Daigle and Donald Clement. Clement testified that he was not familiar with the arrangements between T & J and Hall-Buck. Steve Faucheux and Joe Romano were not called as witnesses at the trial.


text:
    Joan C. ERWIN v. AGRICO CHEMICAL COMPANY OF DELAWARE, INC.
    No. 82 CA 0065.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.

      Brian D. Calvit, Baton Rouge, for plaintiff-appellant Joan C. Erwin.
    Charles S. McCowan, Baton Rouge, for defendant-appellee Agrico Chemical Co., of Delaware, Inc.
    Before COVINGTON, LEAR and LANIER, JJ.
   LEAR, Judge.

Joan C. Erwin filed suit on August 24, 1981, against Agrico Chemical Company of Delaware, Inc. for workmen’s compensation benefits. Agrico filed an exception of prescription which was sustained. Plaintiff appeals that ruling.

Plaintiff alleges that on or about July 10, 1978, she fell down a flight of stairs while working the night shift at Agrico. On or about October 10,1979, she began to experience pain and swelling in her knees. Thereafter, in November of 1979, and again in April of 1980, plaintiff underwent knee surgery. The night before plaintiff’s first surgery, Agrico’s company nurse visited plaintiff’s home and had plaintiff fill out and sign several insurance forms; the information on these forms indicates that the required surgery was not work-related. In March or April of 1980, plaintiff began receiving payments from Prudential Insurance Company; these payments were long term disability payments and were paid through plaintiff’s accident and sickness insurance with Agrico. Plaintiff continued to receive these payments until suit was filed.

The prescriptive period for workmen’s compensation is set forth in LSA-R.S. 23:1209 which states:

“In case of personal injury (including death resulting therefrom) all claims for payments shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter or unless within one year after the accident proceedings have been begun as provided in Parts III and IV of this Chapter. Where such payments have been made in any case, the limitation shall not take effect until the expiration of one year from the time of making the last payment, except that in cases of partial disability this limitation shall not take effect until three years from the time of making the last payment. Also, where the injury does not result at the time of, or develop immediately after the accident, the limitation shall not take effect until the expiration of one year from the time the injury develops, but in all such cases the claim for payment shall be forever barred unless the proceedings have been begun within two years from the date of the accident.”

However, under certain circumstances the two year period set forth in the above quoted statute may be interrupted or suspended. Lester v. Rebel Crane and Service Company, 393 So.2d 674 (La.1981); Miller v. Olinkraft, Inc., 395 So.2d 902 (La.App. 2nd Cir.1981). For example, a prescriptive period may be interrupted where there has been payment of unearned wages in lieu of compensation, Matthews v. New Orleans Public Service, Inc., 349 So.2d 408 (La. App.4th Cir.1977), writ denied, 351 So.2d 170 (La.1977), where the employee shows that he was lulled into a false sense of security and thereby discouraged from filing a lawsuit, Dupaquier v. City of New Orleans, 260 La. 728, 257 So.2d 385 (1972), or even where the employer innocently sets up circumstances such that the employee could reasonably believe he was receiving compensation benefits and thereby delays filing a lawsuit, Williams v. International Lubricant Corporation, 341 So.2d 17 (La.App. 4th Cir.1976), writ refused, 342 So.2d 872 (La.1977).

Plaintiff argues on appeal that due to the facts and circumstances of this case, it was reasonable for her to be under the impression that the payments she was receiving were workmen’s compensation benefits and therefore the prescriptive period of LSA-R.S. 23:1209 was interrupted.

As the trial judge pointed out in his oral reasons for judgment, plaintiff is an educated woman with a degree in microbiology and several hours of graduate work. She had been employed by Agrico for several years and had previously submitted claims to Prudential Insurance Company as a result of medical bills for various illnesses.

In addition, the day prior to.plaintiff’s surgery, she signed forms which were either completed by her or were completed with information supplied by her to the effect that the problem she was having with her knees was not work-related. The mere presence of this type of misinformation on claim forms will not bar recovery where the issue is one of causation. It is well settled that in situations in which an employee does not initially associate an accident with a subsequent injury, his recovery will not be barred where he later becomes aware of the relation and notifies his employer.

In this case, however, the causal relation between plaintiff’s work and her injury is not at issue. Rather, it is plaintiff’s understanding as to the character of the payments she received, at the time she received them, that is at issue here. Because plaintiff did not connect the injury with her work at the time she signed the forms, nor did she subsequently notify her employer of any suspected connection, we can only conclude that she could not at that time have reasonably believed that these payments were compensation for a work-related injury, i.e., workmen’s compensation.

In addition, the record reveals that the trial judge, after having viewed the evidence and heard the testimony of all the witnesses, stated in his oral reasons for judgment that he simply did not believe that plaintiff thought the long term disability payments were workmen’s compensation benefits.

From our review of the record, we find that the judgment of the trial court is correct and we therefore affirm. Costs on appeal are to be paid by plaintiff-appellant.

AFFIRMED.

      . Agrico was self-insured for workmen’s compensation coverage and was insured through Prudential Insurance Company for accident and sickness coverage.


text:
    Albertha McKENZIE v. STANDARD LIFE INSURANCE COMPANY.
    No. 82 CA 0066.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.

      Bryant W. Conway, Baker, for plaintiff-appellant Albertha McKenzie.
    Charles S. McCowan, Jr., Baton Rouge, for defendant-appellee Standard Life Ins. Co.
    Before COVINGTON, LEAR and LANIER, JJ.
   LANIER, Judge.

This is a suit to recover accidental death benefits from a policy of insurance. The trial court granted a summary judgment in favor of the insurer, and the beneficiary of the benefits took this devolutive appeal.

On July 4, 1979, Alex J. McKenzie was employed by Port Allen Industries, Inc. (Port Allen). Effective January 15, 1980, McKenzie secured life and accidental death insurance coverages in the amount of $10,-000.00 each with Standard Life Insurance Company (Standard) through Port Allen. McKenzie designated his mother, Albertha McKenzie, as beneficiary of each of these coverages. On January 30, 1980, McKenzie’s employment with Port Allen was terminated. On February 12, 1980, McKenzie was killed by a gunshot wound to the head. On February 14, 1980, Port Allen, through its president, R.G. Moore, submitted to Standard a proof of death certificate on behalf of the beneficiary, Albertha McKenzie. On March 18,1980, Standard paid Alb-ertha McKenzie $10,000.00 under the life insurance coverage of the policy, but refused to pay the $10,000.00 in accidental death benefits.

The rules applicable to determining the merits of a motion for summary judgment are set forth in Morgan v. Matlack, Inc., 342 So.2d 167, 169 (La.1977), as follows:

“The law is well settled that a motion for summary judgment should be granted if, and only if, the pleadings, depositions, answers to interrogatories, admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966; Stallings v. W.H. Kennedy & Son, Inc., 332 So.2d 787 (La.1976). Only when reasonable minds must inevitably conclude that the mover is entitled to judgment as a matter of law on the facts before the court is a summary judgment warranted. Cates v. Beauregard Electric Cooperative, Inc., 328 So.2d 367 (La.1976). The burden of showing that there is not a genuine issue of material fact in dispute is upon the mover for summary judgment. Any doubt is resolved against the granting of a summary judgment and in favor of a trial on the merits to resolve disputed facts. Kay v. Carter, 243 La. 1095, 150 So.2d 27 (1963).”

See also Bouffanie v. Cheramie, 417 So.2d 32 (La.App. 1st Cir.1982).

Standard contends that under the terms of its policy that coverage for accidental death benefits lapsed on January 30, 1980, when Alex McKenzie was permanently terminated from his employment with Port Allen. Albertha McKenzie contends that Alex McKenzie was only temporarily “laid off” and that under the terms of the policy, there was still accidental death coverage. However, Standard’s policy has not been filed in the record of these proceedings. The only document filed evidencing the coverage is Certificate No. 20 issued to Alex J. McKenzie indicating coverage under Group Policy No. 0000632377. Since the actual policy was not made a part of this record, we cannot determine if the accidental death coverage is incidental to a life insurance policy or is governed by the rules applicable to health and accident insurance policies as defined in La.R.S. 22:6(2).

Additionally, the evidence of record is conflicting on the issue of the nature of Alex McKenzie’s termination. The deposition of R.G. Moore indicates that Alex McKenzie was permanently terminated on January 30, 1980. However, the deposition of Albertha McKenzie contains the following testimony:

“Q. What had happened to his job?
“A. He had got laid off.
“Q. Who told you he had gotten laid off?
“A. He said so.
“Q. Did he tell you how long he had gotten laid off for; permanently or just a little while?
“A. Just for a little while.”

This testimony was not objected to at the time that it was given and the record does not reflect that there was any objection made to the introduction of Albertha McKenzie’s deposition at the hearing on the motion for summary judgment. Thus, on the face of this record, there is a dispute as to the nature of the termination. This is a dispute on a material fact and precludes a summary judgment.

For the foregoing reasons, the trial court improperly granted a summary judgment.. The judgment is reversed and this ease is remanded to the trial court for further proceedings. The appellee is to pay for all costs of this appeal.

REVERSED AND REMANDED.

      . See La.R.S. 22:6(1), La.R.S. 22:176 and Casey v. Prudential Insurance Company of America, 360 So.2d 1386 (La.App. 3rd Cir. 1978), writ denied 363 So.2d 536 (La. 1978).

      . La.R.S. 22:211 et seq.

      . See, for example, Daigle v. Travelers Insurance Company, 421 So.2d 302 (La.App. 1st Cir.1982).

      . See, for example, Hebert v. Tennessee Life Insurance Company, 224 So.2d 79 (La.App. 3rd Cir.1969).


text:
    BLUE RIDGE INSURANCE COMPANY and Willie Dixon v. Robert S. NEWMAN, Patricia Childers Newman and Cambridge Mutual Fire Insurance Company.
    No. 82 CA 0084.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.
    Writ Granted Jan. 21, 1983.

      John W. Perry, Jr., Baton Rouge, for plaintiff-appellant Blue Ridge Ins. Co. and Willie Dixon.
    W. Luther Wilson, Baton Rouge, for defendant-appellee Cambridge Mut. Fire Ins. Co.
    Ronald R. Thompson, Baton Rouge, for defendants-appellees Robert S. Newman and Patricia Childers Newman.
    Before COVINGTON, LEAR and LANIER, JJ.
   LANIER, Judge.

On July 31, 1980, a large tree growing on the property of Robert S. Newman and Patricia Childers Newman, located on Oak-wood Drive in the Glen Oaks Subdivision in Baton Rouge, Louisiana, fell onto a house on the adjoining property owned by Willie Dixon and caused severe damage. Dixon made a claim against his insurer, Blue Ridge Insurance Company (Blue Ridge), and was paid $33,331.00. This suit for damages in tort was subsequently filed against Mr. and Mrs. Newman and their homeowners insurance carrier, Cambridge Mutual Fire Insurance Company (Cambridge),' by Blue Ridge seeking $33,331.00 pursuant to a subrogation from Dixon, and by Dixon seeking $1,455.07 for damages not paid by Blue Ridge. Cambridge answered and denied coverage under the “business pursuits” exclusion of its policy claiming that the Newmans used the property for rental purposes. The Newmans filed a third party demand against Cambridge alleging that it provided coverage for the damages to the Dixon house and for the cost of defense of the claims by Blue Ridge and Dixon against them. The trial court rendered judgment on the main demand in favor of Blue Ridge and Dixon against the Newmans in the sums of $33,331.00 and $1,455.07 respectively. The trial court ruled that the “business pursuits” exclusion of the Cambridge policy was applicable under the facts of this ease and dismissed the main demand by Blue Ridge and Dixon and the third party demand by the Newmans against Cambridge. This devolutive appeal followed.

I. LIABILITY COVERAGE BY CAMBRIDGE

The first issue presented by this appeal is whether or not the “business pursuits” exclusion of the Cambridge policy is applicable. Under Section II of the Cambridge policy, personal liability coverage is afforded to the Newmans by the following language:

“This Company agrees to pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of bodily injury or property damage, to which this insurance applies, caused by an occurrence. This Company shall have the right and duty, at its own expense, to defend any suit against the Insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent, but may make such investigation and settlement of any claim or suit as it deems expedient. This Company shall not be obligated to pay any claim or judgment or to defend any suit after the applicable limit of this Company’s liability has been exhausted by payment of judgments or settlements.”

The policy then excludes from coverage “property damage arising out of business pursuits” in the following manner:

“This policy does not apply:
1. Under Coverage E — Personal Liability and Coverage F — Medical Payments to Others:
d. to bodily injury or property damage arising out of business pursuits of any Insured except activities therein which are ordinarily incident to non-business pursuits; ...”

In Section 8 of the General Conditions portion of the policy, the term “business” is defined as follows:

“When used in this policy the following definitions apply: .. .
d. ‘business’ means
(2) the rental or holding for rental of the whole or any portion of the premises by any Insured;
but business shall not include:
(a) the occasional rental or holding for rental of the residence premises for dwelling purposes; ...”

“Business pursuits” exclusions substantially similar to that in the Cambridge policy have been upheld and applied in numerous Louisiana cases. The purpose of the “business pursuits” exclusion is to provide homeowners with lower insurance rates because insuring the risks attendant to commercial enterprises requires specialized rating and underwriting and is more expensive. LeBlanc v. Broussard, 396 So.2d 535 (La.App. 3rd Cir.1981); Sandoval, Construction and Application of “Business Pursuits” Exclusion Provision in General Liability Policy, 48 ALR 3rd 1096. If there is any doubt or ambiguity as to the meaning of a provision in an insurance policy, it must be construed liberally in favor of the insured and against the insurer. When the ambiguity relates to a provision which limits liability under the policy, the law requires that the contract be interpreted liberally in favor of coverage. Insurance Company of North America v. Solari Parking, Inc., 370 So.2d 503 (La.1979); Credeur v. Luke, 368 So.2d 1030 (La.1979); 70th Street Food Store, Inc. v. Northeastern Fire Insurance Company of Pennsylvania, 408 So.2d 958 (La.App. 2nd Cir.1981).

The evidence shows that Robert Newman’s mother and father acquired the property in 1965 and commenced living there with their six children. The elder Mrs. Newman passed away in 1971. In 1978, the property interests of Robert Newman’s father, brothers and sisters were transferred to him and his wife and they became the sole owners of the property. During the period from 1965 to 1979, the Newman children reached maturity and left the family home at different intervals. In the fall of 1979, the last two children left the family home and the elder Mr. Newman also left to reside with a son in Memphis, Tennessee.

Robert and Patricia Newman began renting the family house and lot to Stephanie Olivia in October of 1979 for $200 per month. Ms. Olivia remained on the Newman property and paid rent through May of 1980 when she moved out without giving any notice. Robert Newman testified that he felt that she owed him rent for the month of June, even though she was not living on the premises because she left some of her things in the house. The incident which is the subject of this suit occurred on July 31,1980. In approximately September or October of 1980, the Newmans rented the premises to a Mrs. Brooks, apparently at the rate of $200 per month for a period of three months. Thus, it appears that during the period of October of 1979 through December of 1980, the Newmans collected rent from their property for eleven of these fifteen months.

The appellants argue on appeal that the above facts show that the rental of the Newman property was “occasional” and that pursuant to the definition of “business” contained in the policy, this rental did not qualify as a “business pursuit” and coverage was not excluded. The word “occasional” is defined in Webster’s New International Dictionary, Second Edition, as follows:

“a) Occurring now and then;
b) Made or happening as opportunity requires or admits;
c) Casual;
d) Incidental; and
e) Occurring at irregular intervals, infrequent.”

The antonym of “occasional”, “continuous”, is defined in Black’s Law Dictionary (5th Ed. 1979), at page 291 as follows:

“Continuous. Uninterrupted; unbroken; not intermittent or occasional; so persistently repeated at short intervals as to constitute virtually an unbroken series. Connected, extended, or prolonged without cessation or interruption of sequence.”

Appellants cite as authority American Family Mutual Insurance Company v. Richardson, 517 F.Supp. 125 (E.D.Mo.1981), wherein a Federal District Court ruled that when there were lapses of time between the occupancy of rental property by tenants, the rental was occasional and thus the “business pursuits” exclusion was not applicable. This analysis is not correct. The term “business” as defined in the policy includes, among other things, “the rental or holding for rental” of the premises. “Rental” refers to the actual leasing of the insured premises to a third person. At the time of the occurrence in the instant case, the property was not being rented (leased). The term “holding for rental” is separated from the word “rental” by the conjunction “or” which is a disjunctive particle used to “indicate an alternative between different or unlike things.” The verb “to hold” used in its usual legal sense means to possess. Thus, the term “holding for rental” means possessing for the purpose of renting the premises when the premises are not actually being rented. The term “holding for rental” would apply to the period of time that the rental property is vacant between successive renters, a common occurrence when property is used for commercial purposes. After Ms. Olivia left the Newman property, the property was possessed for the purpose of a subsequent rental because it was in fact subsequently rented to Mrs. Brooks.

The evidence of record shows that the Newmans either rented or held for rental the residence premises continuously, and not occasionally, from October of 1979 to December of 1980. Whether the rental or holding for rental of the insured premises is occasional or continuous is a question of law as well as fact, and is to be determined from all of the facts of each particular case. Upon appellate review, the trier of fact’s determination of the question is entitled to great weight and the reviewing court should not substitute its opinion when the trial court’s judgment is based on a reasonable interpretation of the evidence. Bond v. Commercial Union Assurance Co., 407 So.2d 401 (La.1981). The trial judge determined that following the departure of the elder Newman from the property, it “was rented almost exclusively until the time of the loss ...” and found that the “business pursuits” exclusion was applicable. Under all of the facts and circumstances of this case, we cannot say that the trial judge’s determination was clearly wrong.

The appellants further argue that since the property was not being rented at the time of the occurrence, it was not being used for a business purpose and the “business pursuits” exclusion was not applicable. Appellants cite as authority the case of Edwards v. Trahan, 168 So.2d 365 (La.App. 3rd Cir.1964). In that case, Trahan “earned his livelihood by renting some 16 houses and by baling hay as a business during certain seasons of the year.” The accident occurred while he was moving his unlighted hay wagon on the highway transporting hay to his home for use by his household cattle. The court found that he was not engaged in a business pursuit at the time of the accident, and accordingly, had coverage under his homeowners policy. That case is not applicable to the facts of the instant case because the evidence in this case shows that the Newmans either rented or held for rental the insured premises during a continuous fifteen month period, which included the time when the accident occurred. The important distinction in the instant case is that by definition, the property was used for business purposes either while it was rented or held for rent.

Por the foregoing reasons, the trial court correctly concluded that the business pursuits exclusion was applicable in this case.

II. OBLIGATION TO DEFEND

Because Cambridge denied coverage in this case the Newmans were required to retain their own counsel and bear the cost of these services. On this appeal, the New-mans claim that they are entitled to be reimbursed attorney fees for the failure of Cambridge to provide a defense against the claims of Blue Ridge and Dixon as required by the policy. It is well settled that where coverage is excluded under a policy of insurance, there is no obligation on the part of the insurer to defend against claims. Jackson v. Lajaunie, 270 So.2d 859 (La.1972); White v. Robinson, 367 So.2d 1358 (La.App. 4th Cir.1979), writ denied 369 So.2d 157 (La.1979); Hill v. Liberty Mutual Insurance Company, 357 So.2d 61 (La.App. 4th Cir.1978), writ denied 359 So.2d 196 (La.1978).

III. CONCLUSION

For the foregoing reasons, the judgment of the trial court is correct and is affirmed at the appellants’ costs.

AFFIRMED.

      . No appeal has been taken from that portion of the judgment on the main demand which found the Newmans liable for damages to Blue Ridge and Dixon.

      . LeBlanc v. Broussard, 396 So.2d 535 (La.App. 3rd Cir.1981); Roberts v. Hartford Accident & Indemnity Company, 394 So.2d 696 (La.App. 3rd Cir.1981); Burse v. Boh Brothers Construction Company, Inc., 328 So.2d 897 (La.App. 4th Cir.1976), writ denied 332 So.2d 284 (La.1976); United States Fidelity & Guaranty Company v. Burris, 240 So.2d 408 (La.App. 2nd Cir.1970); Pitre v. Pennsylvania Millers Mutual Insurance Company, 236 So.2d 920 (La.App. 3rd Cir.1970); Berry v. Aetna Casualty & Surety Company, 221 So.2d 272 (La.App. 2nd Cir.1969); Burroughs v. Employers Liability Assurance Corporation, 198 So.2d 202 (La.App. 1st Cir.1967).

      . The Newmans’ 1979 Federal Income Tax Return indicates that they received $600 in rental for that year, which would indicate a rental of $200 per month for October, November and December of 1979. The 1980 Federal Income Tax Return of the Newmans indicated that they collected $1,600 in rents during that year. Ms. Olivia paid $200 per month for the months of. January through May of 1980 for rents totaling $1,000. Apparently, Mrs. Brooks paid three months of rental at $200 each for a total of $600 indicating that she occupied the premises during three of the last five months of that year.

      . Black’s Law Dictionary (5th Ed. 1979), at page 987.

      . Black’s Law Dictionary (5th Ed. 1979), at pages 657-8.


author: WATKINS, Judge.

text:
    Walter SMITH v. LIVINGSTON PARISH POLICE JURY, Tommy Poirrier, John E. Ashley and Robert Frank.
    No. 82 CA 0091.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.

      Byron Magbee, Baton Rouge, for plaintiff.
    Haydn Berey, Frank Koles, Livingston, for defendant.
    Before EDWARDS, WATKINS and SHORTESS, JJ.
   WATKINS, Judge.

This is an action brought by a landowner, Walter Smith, against the Livingston Parish Police Jury and several of his neighboring landowners seeking to recover damages caused by the drainage of sewage and septic tank fluids from the defendants’ properties into ditches adjoining the plaintiff’s property and also into a ditch located on the plaintiff’s property. The plaintiff also seeks an injunction prohibiting the defendants from draining sewage and septic tank fluids into these ditches. The plaintiff moved for a preliminary injunction. On the date fixed for the hearing on the motion for the preliminary injunction, the Police Jury filed exceptions of no cause of action and no right of action. On that said date the hearing on the preliminary injunction and exceptions was held and the trial court rendered judgment sustaining both the exception of no cause of action and the exception of no right of action, dismissing plaintiff’s suit against the Police Jury and further denying plaintiff’s motion for a preliminary injunction against the other defendants. From that part of the judgment sustaining the exception of no cause of action and no right of action the plaintiff appeals.

The plaintiff alleges that he is a resident of Denham Springs and owns a home situated on a tract of land between Gill Road and Poirrier Lane, two streets allegedly owned and maintained by the Police Jury. Both of the roads have ditches paralleling them and bordering the plaintiff’s property. The plaintiff also owns a private ditch which traverses his property and intersects with one of the parish ditches.

The neighborhood in which the plaintiff and his neighbors live is not a part of any sewerage district. In order to dispose of their sewage, the defendant neighbors built a collection line into which the sewage from the neighboring houses collects and drains. The collection line ends several feet from a culvert which runs under Poirrier Lane. The sewage crosses through the culvert under Poirrier Lane and then flows into the ditches adjoining the plaintiff’s property.

The plaintiff contends that defendants, by draining sewage onto his land, have exceeded the limitations on use of property imposed by the Louisiana Civil Code, article 667, which reads as follows, and hence that he is entitled to damages and an injunction:

“Although a proprietor may do with his estate whatever he pleases, still he can not make any work on it, which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him.”

Plaintiff also seeks damages under LSA-C.C. art. 2315, the general tort article, which reads in pertinent part as follows:

“Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.”

The defendant Police Jury claims the plaintiff has not asserted a cause of action because his petition failed to “disclose any action required of or denied of the Livingston Parish Police Jury .. .”. The Police Jury also claims the Plaintiff has no right of action because the Police Jury “has no legal obligation to regulate sewage, waste disposal, septic tanks, etc.” The trial court found the plaintiff had asserted no cause of action and also that the plaintiff had no right of action, giving as its reasons:

“The Jury is not under legal obligation to provide sewerage collection and disposal system(s) throughout the parish. If such an obligation were created it would immediately bankrupt all Police Juries in the state.”

We find that the trial court was in error in sustaining the exception of no cause of action and the exception of no right of action.

The peremptory exceptions of no cause of action and no right of action are separate and distinct, each serving a particular purpose and each following particular procedural rules. LSA-C.C.P. art. 927(4) and (5).

The exception of no cause of action tests the sufficiency in law of the plaintiff’s petition. It raises the issue of whether the law grants a remedy to anyone for the particular harm alleged. When an exception of no cause of action is raised, all of the pleadings of the plaintiff’s petition are accepted as true and no evidence is admissible to support or defeat the exception. If evidence has incorrectly been admitted, such evidence may not be considered for purposes of sustaining an exception of no cause of action. However, where an exception of no cause of action is referred to the merits without objection, and evidence is introduced at the trial without objection, that evidence may be considered by the court in deciding the exception. See Desormeaux v. Central Industries, Inc., 333 So.2d 431 (La.App. 3d Cir.1976), writ denied 337 So.2d 225 (La.1976) and Lake Charles F.F.A.L.U. No. 561 v. City of Lake Charles, 255 So.2d 372 (La.App. 3d Cir.1971). Any doubts must be resolved in favor of the sufficiency of the pleadings to state a cause of action. Gustin v. Shows, 377 So.2d 1325 (La.App. 1st Cir.1979). In the case at hand, the trial court erred in sustaining the exception of no cause of action. First, the plaintiff’s petition sufficiently states a cause of action, and second, the evidence admitted on the hearing for the preliminary injunction confirmed the allegations of plaintiffs petition.

Looking only to the plaintiff’s petition, we see that plaintiff alleges he owns a tract of land between Poirrier Lane and Gill Road and that the Police Jury owns and maintains those two streets and the drainage ditches adjoining the streets. The petition also alleges that sewage runs through the ditches, and causes noxious odors, hazardous waste and other pollutants which deprive the plaintiff of the use and enjoyment of his property. Petitioner prays for damages and an injunction, and the facts as alleged, if true, support either type of relief.

We find that the plaintiff’s petition adequately sets forth the material facts upon which the cause of action is based, and these facts state a cause of action under LSA-C.C. arts. 667 and 2315. There was no evidence introduced to contradict the allegations of paragraph 2 of plaintiff’s petition that the Police Jury owns the drainage ditches adjoining plaintiff’s property, and the evidence that was introduced clearly confirmed other allegations of plaintiff’s petition. Therefore, we hold the trial court erred in sustaining defendant’s exception of no cause of action.

As to the exception of no right of action, we see that it raises the issue of whether the plaintiff belongs to the particular class for which the law grants a remedy, assuming the law grants a cause of action to a particular class of individuals. Gustin v. Shows, supra. The exception of no right of action does not question the plaintiff’s ability to succeed in his allegations. Nor does it question the plaintiffs’ actual damages. All the exception questions is whether or not the plaintiff is a member of the class to whom the law affords a remedy.

The defendants (including the Livingston Parish Police Jury) are adjoining landowners of the plaintiff. The defendants are using their property in a manner which allegedly deprives the plaintiff of the liberty of enjoying his own property and which allegedly causes damage to the plaintiff. The plaintiff, therefore, falls within the class of plaintiffs who have a remedy under LSA-C.C. arts. 667 and 2315. Accordingly, we hold the trial court erred in sustaining the defendant’s exception of no right of action.

For the foregoing reasons, we reverse the judgment of the trial court sustaining the exceptions of no right of action and no cause of action filed by the Livingston Parish Police Jury, and overrule those exceptions, remanding the matter for further proceedings. Costs shall await final determination of the matter.

REVERSED AND REMANDED.

      . No appeal was taken from the denial of the preliminary injunction.


text:
    Joseph Todd YOUNG v. Charles S. MONTEIRO.
    No. 82 CA 0095.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.

      H. Neil Young, Houma, for plaintiff and appellant.
    Sidney L. Patín, Houma, for defendant and appellee.
    Before COVINGTON, LEAR and LANIER, JJ.
   LEAR, Judge.

This case arose out of a one-car automobile accident which occurred on or about January 8,1980. According to the petition, the car which plaintiff-appellant was driving allegedly skidded off the road in a curve due to bad shock absorbers. Defendant-ap-pellee denied the alleged defective condition and thereafter filed a motion for summary judgment. The motion was accompanied by an affidavit of defendant’s expert stating that he had examined the vehicle and its shock absorbers shortly after the accident and they were both in good mechanical condition prior to the accident and that there were no malfunctions or failures in the vehicle which could have contributed to the accident. The motion for summary judgment was originally set for hearing on October 9,1981, but was continued at plaintiff’s request due to a schedule conflict. The summary judgment hearing was reset for October 30, 1981.

On October 28, 1981, plaintiff filed a motion to produce shocks for inspection, which motion was also set for hearing on October 30, 1981. On that day, plaintiff also filed a motion to continue the summary judgment, alleging that he had requested that defendant produce certain evidence (the shock absorbers) for inspection and testing, that this evidence was at issue in the motion for summary judgment and that the hearing should therefore be continued. At the hearing, the trial judge granted plaintiff’s motion for production of the shock absorbers and ordered that they be made available for inspection and testing by plaintiff’s expert at 10:00 a.m. on November 6, 1981, at defendant’s law office. At that same time, plaintiff’s motion for a continuance was denied and the trial judge ordered that the summary judgment be “taken under advisement.”

Thereafter, without further notice or hearing, the trial court, on November 23, 1981, assigned written reasons and rendered judgment on defendant’s motion for summary judgment, dismissing, with prejudice, plaintiff’s suit. This judgment showed only defendant’s attorney to have been present at the hearing and was thereafter amended to indicate that both plaintiff’s and defendant’s attorneys were present at the hearing. The minutes of the court and other entires in the record indicate that only one hearing was, in fact, held, that being the hearing on October 30, 1981. Nothing in the record indicates that plaintiff was notified of or appeared at any other subsequent hearing.

We find that Supreme Court Rule 13:4207.1 is controlling in this present situation. That rule provides, in pertinent part, as follows:

“(a) When Submitted. A case or other matter shall be considered as fully submitted for decision to the trial judge, and should be decided, immediately upon the conclusion of trial or hearing, and judgment signed expeditiously thereafter.
“In an exceptional case when the record has been left open upon the conclusion of trial or hearing for the filing of testimony by deposition and/or documents, such depositions and/or documents shall be filed within fifteen days and the case or matter shall be considered as fully submitted, and should be decided, immediately after such filing or the lapse of fifteen days, whichever occurs sooner.”

See also Fontenot v. American Fidelity Fire Insurance Company, 386 So.2d 165 (La.App. 3rd Cir.1980); Smith v. V.V. Sharpe Co., Inc., 379 So.2d 1216 (La.App. 3rd Cir.), writ denied, 381 So.2d 1233 (La.1980).

Although no specific date was set by the trial court when the case would be considered submitted, the above referred to Supreme Court rule mandates that the case shall be considered as fully submitted at the latest fifteen days from the conclusion of the hearing. In this case, the judgment was signed by the trial court twenty-four days after the hearing and seventeen days after the date set by the court for production of the physical evidence.

Because this rule serves as notice to all litigants as to the amount of time a case may be left open after the conclusion of a hearing, plaintiff was not entitled to further notice prior to the signing of a judgment by the trial court. Thus, the trial court’s action was correct.

For the foregoing reasons, the judgment of the trial court is hereby affirmed. All costs, both at trial and on appeal, shall be paid by plaintiff-appellant.

AFFIRMED.


text:
    MIDCO LOUISIANA CO. v. AQUATIC EQUIPMENT & ENGINEERING, INC., et al.
    No. 82 CA 0099.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.

      Warren E. Byrd, II, Eric A. Kracht, Baton Rouge, for plaintiff-appellee Midco Louisiana Co.
    James E. Moore, Arthur H. Andrews, Baton Rouge, for third party defendant-appel-lee Lincoln Ins. Co.
    Ernest L. Parker, Lafayette, for defendant and third party plaintiff-appellant Aquatic Equipment & Engineering, Inc. and Bernard J. Packard, Sr.
    Michael Landrum, Baton Rouge, for defendant-appellant Aquatic Equipment & Engineering, Inc.
    Before COVINGTON, LEAR and LANIER, JJ.
   LEAR, Judge.

Plaintiff-appellee, Midco Louisiana Co. (Midco), leased four cranes, each under separate lease agreement, to defendant-appellant, Aquatic Equipment & Engineering, Inc. (Aquatic). In connection with these lease agreements, property damage insurance was obtained from Lincoln Insurance Company (Lincoln). On May 21, 1981, sometime after the leased equipment was returned by Aquatic, Midco filed suit against Aquatic and Lincoln alleging that Aquatic had returned Midco’s equipment “each in a heavily damaged condition”. Thereafter, Aquatic filed a third party demand against Lincoln, as its insurer. Lincoln, alleging that suit had been filed after the expiration of the prescriptive period contained in the contract of insurance, then filed a motion for summary judgment as to both Midco’s main demand and Aquatic’s third party demand. After a hearing, the trial court granted Lincoln’s motions for summary judgment, and this present appeal was then taken by Aquatic only.

Aquatic’s insurance policy with Lincoln contained a provision limiting the time in which suit could be brought on the insurance contract. In this regard, the policy provides as follows:

“No suit, action or proceeding for the recovery of any claim under this policy shall be sustainable in any court of law of equity unless the same be commenced within twelve (12) months next after discovery by the Named Insured of the occurrence which gives rise to the claim, provided however, that if by the laws of the state within which this policy is issued such limitation is invalid, then any such claim shall be void unless such action, suit or proceeding be commenced within the shortest limit of time permitted by the laws of such State.”

Initially we find that there exists no genuine issue of material fact. An affidavit executed by a former employee of Aquatic and filed by Aquatic in opposition to Lincoln’s motion for summary judgment states that Aquatic notified its insurance agent of the damage done to each crane within two weeks of the occurrence of such damage. The lease agreements in the record further show that Aquatic was not in possession of any of the leased equipment after January 16, 1979. Thus, the damage must have occurred and Aquatic must have been aware of that damage prior to January 16, 1979. This undisputed fact is controlling, as Aquatic’s suit against its insurer, Lincoln, was not filed until May 21, 1981, at least two years and four months after its discovery of the occurrence which gave rise to the claim. In the absence of a statutory prohibition, a clause in an insurance policy fixing a reasonable time to institute suit is valid. Suire v. Combined Insurance Company of America, 290 So.2d 271 (La.1974); Stroud v. Northwestern National Insurance Company, 360 So.2d 528 (La.App. 2nd Cir.), writ denied, 362 So.2d 575 (La.1978); Joe E. Freund, Inc. v. Insurance Company of North America, 261 F.Supp. 131 (W.D.La.1966); affirmed 370 F.2d 924 (5th Cir.1967).

Aquatic relies upon LSA-R.S. 22:629 in support of its contention that the limitation of suit clause is invalid. We find, however, that the policy provision at issue here is in compliance with rather than in conflict with LSA-R.S. 22:629. Nor have we found any other statutory provision which would prohibit the limitation clause in Lincoln’s policy. Thus, we find that this limitation clause is valid and enforceable.

Aquatic next contends that it detrimentally relied upon Lincoln’s previous actions in which its claims were duly processed and paid by Lincoln. Aquatic appears to argue that this reliance was sufficient to serve as an interruption of prescription. Even accepting Aquatic’s statements of fact, contained in their countervailing affidavit, as true, that is, that their claims were lodged with Lincoln within two weeks after the occurrence and that Lincoln had previously paid claims made by Aquatic, we find that this is insufficient to interrupt prescription. In order to interrupt prescription, a party must have been prevented from filing suit by some willful or negligent conduct by defendant. Aquatic does not allege that any willful or negligent action by defendant prevented it from filing suit, but rather, relies merely on its unilateral belief that its claims would be paid and there was no need to file suit. Under these circumstances, we find that prescription was not interrupted.

In its answer to this appeal, Lincoln has asked for damages from Aquatic due to the frivolous nature of this appeal. In Louisiana, damages for frivolous appeal are not allowable unless it is obvious that the appeal was taken solely for the purpose of delay or that counsel is not sincere in view of the law which he advocates. La.C.C.P. art. 2164; Parker v. Interstate Life & Accident Insurance Company, 248 La. 449, 179 So.2d 634 (1965); L. Frank & Company, Inc. v. Devillier’s Foodliner, Inc., 365 So.2d 501 (La.App. 4th Cir.1978); Tullis v. Aertker, 352 So.2d 415 (La.App. 3rd Cir.1977).

There is no evidence in the record indicating that this appeal was taken solely for the purpose of delay or that counsel for appellant was not sincere in view of the law which he advocates. For this reason, we will not award damages for frivolous appeal.

For the foregoing reasons, the judgment of the trial court granting defendant-appel-lee’s motion for summary judgment is hereby affirmed. All costs on appeal shall be paid by third party plaintiff-appellant, Aquatic Equipment & Engineering, Inc.

AFFIRMED.

      . LSA-R.S. 22:629 provides, in pertinent part, as follows:
      “A. No insurance contract delivered or issued for delivery in this state and covering subjects located, residents, or to be performed in this state, shall contain any condition, stipulation, or agreement:

      “(3) Limiting the right of action against the insurer to a period of less than one year from the time when the cause of action accrues in connection with all insurances unless otherwise specifically provided in this Code.”

      . Corsey v. State, Department of Corrections, 375 So.2d 1319 (La.1979).


text:
    Robert G. STRONG, Raiford Strong and Nelda Strong v. Donna Elizabeth TROSCLAIR.
    No. 82 CA 0102.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.
    F. Barry Marionneaux, Plaquemine, for plaintiffs-appellees Robert G. Strong, Rai-ford Strong & Nelda Strong.
    Patrick W. Pendley, Freeman & Pendley, Plaquemine, for defendant-appellant Donna Elizabeth Trosclair.
    Before COVINGTON, LEAR and LANIER, JJ.
   LEAR, Judge.

Donna Elizabeth Trosclair and Robert G. Strong were married on July 12, 1975, and subsequently granted a divorce by a Mississippi court on June 15,1978. The Mississippi court also granted custody of the couple’s minor son to the mother and set certain visitation rights for the father. Thereafter, the father filed suit in the Eighteenth Judicial District of Louisiana requesting modification and expansion of the visitation rights granted by the Mississippi court. The father was joined in the suit by the paternal grandparents, Raiford and Nelda Strong, who were seeking visitation rights in their favor under LSA-R.S. 9:572. The district court’s judgment setting specific visitation rights is attached hereto as Appendix A.

The mother has appealed, arguing, the district court abused its discretion in its award of visitation rights.

We first note that in cases involving the best interests of a child much discretion and latitude is accorded the trial judge and his judgment will only be set aside where it is shown that there has been an abuse of discretion. Ogden v. Ogden, 220 So.2d 241 (La.App. 1st Cir.1969); Johnson v. Johnson, 214 La. 912, 39 So.2d 340 (La.1949).

Appellant’s first main argument is that the exercise of the father’s visitation rights by the paternal grandparents is not in the best interests of the child. We note first that the paternal grandparents are not merely exercising the visitation rights of the father; they are plaintiffs in the suit seeking the establishment of visitation rights under LSA-R.S. 9:572 in their favor and have been granted such by the court. Despite appellant’s statement that the monthly week-end visits are not in the best interests of the child, no reference is made to any evidence in the record which would substantiate this allegation. The paternal grandparents and the paternal great-grandparents, who also reside in Natchez, were all present the day of trial and testified that the child’s week-ends in Natchez were spent playing and visiting with the numerous relatives who reside in that city. Appellant did not refute this, nor did she object to the monthly week-end visits when questioned about them at trial. Most importantly, there was no evidence that the child had or would suffer any emotional trauma or strain as a result of these visits.

Appellant next argues that the continuous two month summer visitation period is excessive and constitutes an abuse of discretion. The record does not contain any evidence to indicate that the child has been or will be adversely affected by these visits. However, in light of the fact that the parents live a great distance apart and in light of the fact that the child will only be seven and a half at the time of the coming summer visit, we find that the trial court judge abused his discretion by granting a continuous two month summer visitation period. Poole v. Poole, 270 So.2d 215 (La.App. 1st Cir.1972), writ denied, 273 So.2d 295 (La.1973).

We therefore amend the judgment of the trial court and grant a thirty day summer visitation period. The judgment of the trial court is affirmed in all other aspects. Costs on appeal are to be paid by plaintiff-appellant.

AMENDED IN PART AND AFFIRMED AS AMENDED.

APPENDIX A

The judgment reads in part:

IT IS ORDERED, ADJUDGED AND DECREED that there be Judgment on the main demand in favor of the plaintiffs, Robert G. Strong, Raiford Strong and Nelda Strong, establishing reasonable visitation rights for each, relative to the minor child, Robert Allen Strong, as follows:

I.Robert G. Strong shall be entitled to a continuous two-month period each summer for visitation in Oklahoma, Mississippi or wherever Robert G. Strong chooses to spend his vacation, provided that Robert G. Strong may allow Raiford Strong and Nelda Strong to take said minor child for a visit to their home or to accompany the grandparents on their vacation. Said summer visitation to commence the second Friday at 6:30 P.M. after the end of the school term.
II.Robert G. Strong shall be entitled to one (1) weekend every month being designated as the third weekend of each month from Friday at 6:30 P.M. to 5:00 P.M. Sunday. The designated third weekend may be changed with seven (7) days pri- or notice to the Mother. This weekend provision shall include one (1) three-day weekend between January and June to be designated in January of each year.
III. Robert G. Strong shall be entitled to an additional weekend nearest to July 4 for the Plaintiffs' family reunion, from Friday at 6:30 P.M. to 5:00 P.M. Sunday.
IV. Robert G. Strong shall be entitled to visitation on alternate years during Thanksgiving vacation beginning the Friday preceding Thanksgiving at 6:30 P.M. through Thanksgiving week to the following Sunday at 5:00 P.M., commencing 1981.
V.Robert G. Strong shall be entitled to visitation beginning the Sunday following Christmas Day at 6:30 P.M. through the entire week until the Sunday following New Year’s Day at 5:00 P.M. in 1981 and all subsequent odd numbered years. Thereafter on even numbered years, Robert G. Strong shall be entitled to visitation beginning 6:30 P.M. on Friday, the last school day preceding the Christmas holidays through the following week until 5:00 P.M. on the first Sunday after Christmas.
VI.Either Raiford Strong or Nelda Strong or Robert G. Strong may pick up or return the child at the designated times, and either Rai-ford Strong or Nelda Strong or Robert G. Strong may exercise visitation rights granted, provided, however, that Robert G. Strong will exercise visitation rights in the two-month period each summer.
VII.Robert G. Strong, Raiford Strong or Nelda Strong will always inform Donna Elizabeth Trosclair as to the whereabouts of the child and the itinerary of any vacation on which the child may accompany plaintiffs.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the visitation granted herein shall not interfere with the child’s regular schooling.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the child will not be prevented from having contact with any of his relatives, either on his mother’s side or his father’s side. No letters, cards, gifts, birthday presents, etc., to the minor child will be interfered with unless the gifts are deemed dangerous to the child’s health or welfare by the mother, and if they are so considered, she must notify the donor.

      . Presently, the mother has custody of the minor son and resides in Plaquemine, Louisiana, with her parents. The father is remarried and resides in Oklahoma City, Oklahoma; the paternal grandparents reside in Natchez, Mississippi.


author: CARTER, Judge.

text:
    FIDELITY NATIONAL BANK OF BATON ROUGE v. RED STICK WHOLESALE MUSIC DISTRIBUTORS, INC., et al.
    No. 82 CA 0106.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.
    Patrick F. McGrew, Baton Rouge, for plaintiff-appellee Fidelity Nat. Bank of Baton Rouge.
    Burton P. Guidry, Baton Rouge, for defendant-appellant Thomas J. Guarino.

      Before LOTTINGER, COLE and CARTER, JJ.
   CARTER, Judge.

This is an action on a promissory note. Fidelity National Bank of Baton Rouge (hereinafter referred to as “Fidelity”) sued Red Stick Music Distributors, Inc. and Thomas J. Guarino for the recovery of the unpaid balance of a certain promissory note, together with interest and attorney’s fees. After trial on the merits, judgment was rendered in favor of Fidelity and against the defendants. From this judgment, defendant, Thomas J. Guarino, perfected a suspensive appeal. We affirm.

Brief was not filed by appellant. We therefore can only assume that appellant complains of the trial court’s finding that defendant Guarino personally indorsed the note of Red Stick.

On the trial of this matter, most of the facts were stipulated by counsel and the only disputed testimony concerned the intent of the parties as to Guarino’s indorsement on the back of the note.

The note involved in this litigation was in the original amount of $11,863.82, with interest thereon at a rate of 12.25% per an-num from April 5,1979 until paid, plus 25% on both principal and interest as attorney’s fees. This note was signed on the front side as follows:

“Red Stick Wholesale Music, Inc. s/n Thomas J. Guarino, Pres.”

On the reverse side of the note is found the following:

“s/n Thomas J. Guarino, Pres.”

Upon default, Fidelity as holder and owner of the note brought suit against both the corporation and Thomas J. Guarino as personal indorser of the note.

Under the Louisiana Commercial Laws, La.R.S. 10:3-403 is directly on point in this case, and it reads as follows:

“(1) A signature may be made by an agent or other representative, and his authority to make it may be established as in other cases of representation. No particular form of appointment is necessary to establish such authority.
(2) An authorized representative who signs his own name to an instrument
(a) is personally obligated if the instrument neither names the person represented nor shows that the representative signed in a representative capacity;
(b) except as otherwise established between the immediate parties, is personally obligated if the instrument names the person represented but does not show that the representative signed in a representative capacity, or if the instrument does not name the person represented but does show that the representative signed in a representative capacity.
(3) Except as otherwise established the name of an organization preceded or followed by the name and office of an authorized individual is a signature made in a representative capacity.”

The provisions of La.R.S. 10:3-403 applicable to this case is § 3 — 403(2)(b) which sets forth a rebuttable presumption between the immediate parties that the representative who signs his name in a representative capacity but does not name the person represented is personally obligated on the instrument. Parol evidence is admissible to rebut the presumption of the representative’s personal liability; that is, to show that personal liability was not intended by his signature.

Also, La.R.S. 10:3-402 should be read in conjunction with § 3-403. Section 3-402 reads as follows:

“Unless the instrument clearly indicates that a signature is made in some other capacity it is an indorsement.”

Thus, under the above two quoted articles which are controlling in this case, the representative who signs without naming the person represented has the burden of showing that his personal liability was not intended by his signature.

We find that the second signature by Guarino, followed by the word “Pres.” on the reverse of the note, was a personal indorsement by Guarino and that the word “Pres.” was not used to describe the representative character in which the signature was affixed, but rather as a title identification. Associates Finance, Inc. v. Supreme Construction Co., 211 So.2d 349 (La.App. 4th Cir.1968).

Defendant Guarino testified at trial that he had signed the reverse of the note in a corporate capacity only and had no intention of being personally obligated thereon. This testimony was directly contradicted by Mr. Sidney N. Longwell, Commercial Loan officer with Fidelity. The trial court found, and we agree, that this indorsement on the reverse of the note would have been an exercise in futility, if not a personal indorsement, since the defendant, as maker of the note, had already signed in his capacity as the chief executive officer of the corporation. The note was payable to Fidelity who was also the holder. Different from a “myself” or “itself” note, an indorsement was not needed to make it a negotiable instrument. To give meaning to this second signature, it must be construed as being a personal indorsement with his title identification.

For the above reasons, the judgment of the trial court is affirmed at appellant’s costs.

AFFIRMED.


author: COLE, Judge.

text:
    T. Edward SPILLMAN v. NIAGARA FIRE INSURANCE COMPANY OF NEW YORK.
    No. 82CA0108.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.
    Max LaBranche and Paula Cobb, Baton Rouge, for plaintiff-appellant T. Edward Spillman.
    Felix R. Weill, Baton Rouge, for defendant-appellee Niagara Fire Ins. Co. of New York.
    Before LOTTINGER, COLE and CARTER, JJ.
   COLE, Judge.

The issues in this workers’ compensation ease are whether or not the plaintiff proved a work-related accident aggravated his preexisting condition and whether or not he is partially disabled.

Plaintiff, T. Edward Spillman, was employed as an “associate” at the animal science department of Louisiana State University for thirty years. Over the course of his employment he received numerous injuries from working with horses and cows. Several of these accidents caused him pain on the left side of his neck. In addition to these work-related injuries he also injured his neck when involved in automobile accidents in 1969 and again in 1981. The injury of which he complains in this suit occurred in January of 1977. A horse “rared up” and the horse's head made contact with Mr. Spillman’s head. As a result Mr. Spillman suffered pain in his neck, had headaches and complained of dizziness. He admits the symptoms were the same as those he had suffered in previous accidents. He worked for several weeks and then discontinued work for the next 121 weeks. During this time he received workers’ compensation in the amount of $95 a week and endorsed those checks to his employer, L.S.U. In return, L.S.U. continued to pay him his regular salary based on a substantial amount of accumulated leave. On June 30, 1980, Mr. Spillman retired from L.S.U. and as of this date the insurer ceased payments of the workers’ compensation.

Plaintiff then filed suit against Niagara Fire Insurance, L.S.U.’s insurer, alleging he was permanently and totally disabled (or alternatively, partially disabled), and was therefore entitled to the workers’ compensation benefits. After trial on the merits the trial court rendered judgment against plaintiff and in favor of the insurer, finding plaintiff had not proved by a preponderance of the evidence any disability nor did he prove his pain had been caused or aggravated by the work-related incident.

We have examined the record and conclude plaintiff is not entitled to workers’ compensation because, assuming arguendo, his neck problems were aggravated by the 1977 accident, he has failed to prove he is in fact disabled. Plaintiff alleges he is unable to work around the horses because of the pain, the restriction of motion, the lack of “alertness” and the fear of reinjury.

Dr. William Fisher, a neurosurgeon, examined Mr. Spillman four times. He could find no objective evidence of damage other than some signs of arthritis in the C5 and C6 spinal spaces. He concluded the pain was caused by “degenerative disc disease” which could possibly have been aggravated by the 1977 accident. After running a series of tests in May of 1978, Dr. Fisher felt that from an objective standpoint Mr. Spill-man should have been able to return to work at that time. Dr. Fisher stated, “On the basis of these several examinations, I could not say that he was unable to perform his usual and ordinary occupation.”

Dr. Thomas Campanella, an orthopedic surgeon, testified he had treated Mr. Spill-man for neck pain on and off since the auto accident in 1969 and quite frequently since the 1977 incident. He concurred generally with Dr. Fisher as to the presence of the arthritic changes and the absence of objective evidence as to the source of the pain. He stated Mr. Spillman’s condition was aggravated to some extent by the 1977 accident. Although Dr. Campanella recommended Mr. Spillman not return to work, he denied Mr. Spillman was unable to return to work. Dr. Campanula's concern was that Mr. Spillman would receive another injury which would further aggravate his existing problems.

Dr. Campanella responded to questions of plaintiff’s counsel as follows:

“Q. And it’s this aggravated condition which presently causes him to be unable to go back to work with the horses; is that correct?
A. No, sir.
Q. What is it?
A. No, I just don’t want him to go back to work on horses.
Q. I see.
A. —because of his repeated injuries.
Q. All right.
A. I figure the man should have learned his lesson, you know, with all of these fractures that he had from those horses.”

At another point in the deposition Dr. Campanella expanded upon his recommendation Mr. Spillman not return to work around the horses.

“Off and on, you know, he had a lot of injuries around those horses, and I felt it was bad for him, but I felt that he could do some work and he ought to try to do some work.”

Dr. Campanella noted he had first advised Mr. Spillman to discontinue work around the horses back in the 1960’s due to the frequent injuries.

Plaintiff admitted he was able to do rather strenuous chores such as yard work. John Thompson, a private investigator, testified for defendant he had observed Mr. Spillman removing a lawnmower from the trunk of a car. Mr. Spillman then mowed the yard and used his left hand to pull the mower out of a ditch. All of this was done without any signs of discomfort. Photographs of the lawn mowing were introduced at trial.

Based upon the foregoing evidence we conclude plaintiff is not entitled to compensation because he has failed to prove he is partially disabled within the contemplation of La.R.S. 23:1221(3). The judgment of the trial court is affirmed. Plaintiff-appellant is to pay all costs.

AFFIRMED.


text:
    ACADIAN SHIPYARD, INC. v. PIERCE ENTERPRISES OF LOUISIANA, INC.
    No. 82 CA 0115.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.
    J. Frederick Kessenich and Francis Emmett, New Orleans, for plaintiff and appel-lee.
    Randall M. Alfred, Houma, for defendant and appellant.
    Before LOTTINGER, COLE and CARTER, JJ.
   CARTER, Judge.

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

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

APPEAL DISMISSED.


text:
    Gwen H. DEARING v. COLEMAN OLDSMOBILE, INC., et al.
    No. 82 CA 0121.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.

      Allen M. Posey, Jr., Baton Rouge, for plaintiff-appellee Gwen H. Dearing.
    Vincent P. Fornias, John C. Miller, Baton Rouge, for defendant-appellant Midas-Intern. Corp.

      Before LOTTINGER, COLE and CARTER, JJ.
   CARTER, Judge.

This is a suit to rescind the sale of a motor home. Plaintiff, Gwen Dearing, sued Coleman Oldsmobile, Inc., d/b/a Coleman R.V. Center (dealer), Chrysler Corporation (manufacturer of the chassis of the motor home), and Midas International Corporation (manufacturer of the “box” portion of the motor home). The trial court granted Chrysler’s motion for a directed verdict, dismissing Chrysler from the suit. The court rescinded the sale and held Coleman and Midas liable, in solido, for the amounts paid by plaintiff on the purchase price subject to a credit for the value of plaintiff’s use of the vehicle and for attorney fees. All third-party demands were dismissed.

On March 20, 1979, Ms. Dearing purchased a Midas 200-1 Mini Home from Coleman. The purchase price was $16,-803.75 and the total cost after adding all finance charges was $22,602.72. As part of the transaction, Ms. Dearing delivered to Coleman a 1978 Chevrolet Van as a trade-in and received a credit of $7,500 toward the cost of the motor home. The trial court found that plaintiff accepted delivery on March 23, 1979 and that her problems began on that day. Plaintiff returned the vehicle to Coleman on numerous occasions. On five different occasions repair orders were written up.

On November 7, 1979, plaintiff issued a demand letter to Coleman in which she listed 34 alleged defects:

1. Generator does not work.
2. Muffler is falling off and rusting out.
3. Exterior trim has blown off.
4. Formica is coming off table.
5. Carpet on driver’s side is not secured to floor and flops over gas pedal.
6. Passenger door jams.
7. Arm rest is torn.
8. Dash air conditioner leaks.
9. Cigarette lighter knob does not match rest of knobs on dash.
10. Dash air conditioner loover is broken.
11. Gas tank will not hold capacity.
12. Outside mirrors will not stay in place.
13. Cushion seam behind passenger seat is split.
14. Stearing makes grinding noise.
15. Fresh water tank will not fill.
16. Transmission slips out of gear.
17. Window screens will not stay in place.
18. Fumes from gas tank infumigate cab.
19. Hub caps will not stay in place.
20. Front end will not stay aligned, front right tire is badly worn as result thereof.
21. Storage door on rear of vehicle will not lock properly.
22. Hydrolic jack will not work.
23. There is a leak in roof over front at driver’s seat.
24. There is a leak over cabinets in rear of motor home.
25. Batteries will not maintain charge.
26. Alternator does not work.
27. Water pump does not work properly.
28. Refrigerator lining is cracked.
29. Refrigerator shelf is missing.
30. Refrigerator is coming out of the wall.
31. Curtains are stained and torn. (Since purchase)
32. Curtain rod is pulling out of the wall.
33. Side step light is broken.
34. Windshield wipers and fan belts have been dry rotted since purchase.

As evidenced by the work orders and testimony, many of plaintiff’s problems, such as problems starting the vehicle, problems with the generator, and problems with the numerous leaks, continued to reoccur. Plaintiff finally filed suit in January, 1980.

Without discussing each alleged defect, the trial court found that some of the complaints involved problems which were only minor adjustments or minor misunderstandings between plaintiff and Coleman personnel. The court found, however, that many defects were present in the motor home at the time of sale from Coleman to the plaintiff and that some were caused by improper design and poor manufacture, thus placing responsibility for those defects on Midas. The court further found the following:

“(T)he actions of Coleman between the time of delivery of the motor home from Midas to Coleman and the date on which the plaintiff sought to rescind this sale either caused or enhanced many of the defects. This was due to (1) a complete failure of Coleman to do routine maintenance on this unit from the time of purchase from the manufacturer to the time of the sale to the plaintiff; (2) complete failure of Coleman to service the unit prior to the delivery to the plaintiff; (3) failure of Coleman to perform repairs or extremely poor repair work by Coleman when the unit was returned by the plaintiff for service or repair; and (4) complete failure of Coleman to advise or instruct the plaintiff on proper use and maintenance of the unit. These findings taken together show that both Midas and Coleman are responsible for the defects in this motor home.”

Defendants Coleman and Midas have appealed. Coleman urges two specifications of error, that the trial court erred in its finding that plaintiff was entitled to a complete rescission of the sale as against Coleman and that the court erred in refusing to grant Coleman’s third party demand for indemnity against Midas. Midas urges that the trial court erred in granting a complete rescission of the sale as against Midas and that the trial court erred in refusing to grant its third-party demand for indemnity against Coleman. Plaintiff answered asking that judgment of the trial court be affirmed at appellants’ costs. Because of the similarity of defendants’ specifications of error, they will be discussed together.

Rescission of the sale

Defendants argue first that plaintiff is not entitled to rescission of the sale for any alleged apparent defects observed during her inspection prior to purchase. These include: the rusting mirrors, the stained and torn curtains, the missing cigarette lighter, the missing shelf from the refrigerator, the loose formica table top, the non-operating interior lights of the vehicle, the missing keys to the vehicle, and the missing owner’s manual.

La.Civ.Code art. 2520.

“Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice.”

La.Civ.Code art. 2521.

“Apparent defects, that is, such as the buyer might have discovered by simple inspection, are not among the number of redhibitory vices.”

Two cases are cited by defendants in which plaintiffs were aware of the defects prior to purchase. In Millin v. Dawson, 387 So.2d 1213 (La.App. 1st Cir.1980), the court found there could be no action for reduction in price when the defects complained of are apparent defects. (An action for reduction in price is subject to the same rules as an •action for redhibition). The court found that the dealer had, however, bound himself contractually to repair the damaged items listed on the purchase agreement. In Hawkins v. Camper Village, Inc., 404 So.2d 508 (La.App. 1st Cir.1981), a judgment granting rescission to plaintiff was reversed and the case was remanded to the trial court for further evidence on the issue of reduction. One of the reasons for reversal was plaintiff’s admitted knowledge of the majority of the defects, which the court said were not redhibitory vices. The facts of the present case are somewhat different.

In the present case, the plaintiff admits that some of the defects complained of were noticed prior to purchase. However, there were many vices not discoverable by simple inspection which form the basis of this action. The trial court found that it was not any particular defect which required rescission but the combined effect of the defects and the poor or non-existent service. The fact that some defects were apparent cannot defeat plaintiff’s claim.

Defendants’ second argument is that plaintiff is not entitled to redhibition for defects caused by misuse of the vehicle or defects not present at the time of the sale. Defendants argue first that plaintiff performed no maintenance on the vehicle, such as changing the oil, lubricating the unit, cleaning the filter, changing spark plugs, checking the generator, nor periodic inspections of the roof. This argument is clearly without merit. Five work orders filled out by Coleman were submitted by plaintiff into evidence. The first work order was written just a week after purchase and the next three within two months of purchase. The type of maintenance suggested by defendants should not be required so soon after purchase. Also, there is little, if any, relation between the problems complained of and the maintenance suggested.

Defendants also suggest that Ms. Dearing’s children, ages 7 and 10, could “plausibly” have caused some of the problems. The trial court, however, found that Coleman and Midas were responsible for the defects in the motor home. We must conclude that he did not find the children responsible. His factual finding will not be disturbed absent manifest error. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Canter v. Koehring Company, 283 So.2d 716 (La.1973).

The jurisprudence is clear that the buyer may prove the existence of redhibitory defects not only by direct evidence of eyewitnesses, but also by circumstantial evidence giving rise to the reasonable inference that the defect existed at the time of the sale. Rey v. Cuccia, 298 So.2d 840 (La.1974). The court in Rey also said, at page 843,

“If the defect appears within three days following the sale, it is presumed to have existed before the sale. Article 2537. However, even where the defect appears more than three days after the sale (as here, when it appeared on the second day of use, but ten days after the sale), if it appears soon after the thing is put into use, a reasonable inference may arise, in the absence of other explanation or intervening cause shown, that the defect existed at the time of the sale. Andries v. Nelson, 46 So.2d 333 (La.App. 1st Cir.1950); Standard Motor Car Co. v. St. Amant [18 La.App. 298] 134 So. 279 (1st Cir.1931). See, for similar principle, when a constructed thing fails shortly after being put into use. Joyner v. Aetna Casualty & Surety Co., 259 La. 660, 251 So.2d 166 (1971).”

The trial court found that although some of the complaints involved minor adjustments or minor misunderstandings, many involved defects which were present in the motor home at the time of sale. The trial court did not find and the record does not reveal any other explanations or intervening causes for the defects. The work orders and plaintiff’s testimony show that the vices began to be obvious shortly after purchase. In the absence of other explanation, we conclude that the vices must have existed at the time of sale.

Defendants’ third argument is that plaintiff’s remedy, if any, should have been a reduction in the purchase price based on the authority found in La.Civ.Code art. 2543. Midas cites several cases in which courts allowed only a reduction of the purchase price where evidence disclosed only a partial failure of consideration. Newman v. Dixie Sales and Service, 387 So.2d 1333 (La.App. 1st Cir.1980); Wade v. McInnis-Peterson Chevrolet, Inc., 307 So.2d 798 (La.App. 1st Cir.1975); Menville v. Stephens Chevrolet, Inc., 300 So.2d 858 (La.App. 4th Cir.1974), writ refused 303 So.2d 186.

In the Wade case, the main problem was the failure of the seller to correct a water leak around the windshield. The court found that the overall circumstances, especially the nature of the defect and the long period of extensive usage of the vehicle, by the buyer, supported the conclusion that the defect only diminished the utility of the vehicle and thus constituted only a partial failure of consideration. Reduction of purchase price was granted rather than a rescission. In Newman, this court affirmed the trial court’s decision to grant reduction of the price rather than rescission of sale when the only complaint involved a defective transmission (other alleged defects had been corrected). In Menville, however, numerous defects were present. The court found that the defects, though numerous, did not render the automobile useless. The court then said, at page 860,

“While it is a closer question as to whether the defects rendered the car so imperfect that a reasonable buyer would not have purchased it had he known of the defects, the overall circumstances support the trial judge’s resolution, especially the nature of the defects and the long period of extensive usage prior to the rescission demand."

The test of whether a defect is a redhibitory one is whether the defect renders the thing sold either absolutely useless, or its use is so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the defect. La.Civ.Code art. 2520. The motor home in this case was for much of the time plaintiff’s only mode of transportation. The testimony supports plaintiff’s claim that on many occasions she was not able to rely on the motor home to get her to and from her place of business and around town. She desired a self-contained unit for camping purposes, but was often unable to start the generator. Additionally, some of the defects (the insecure side mirrors for instance) could have and/or did place her in a hazardous situation. The use of the motor home became so inconvenient and imperfect that it must be presumed that Ms. Dearing would not have purchased it had she known of its vices.

The trial court said that it was not any particular defect which prompted its judgment but the combined effect of the defects and the poor or non-existent service which calls for rescission. This court has considered the effect of multiple vices before. In Bagwell v. Coleman Oldsmobile, Inc., 391 So.2d 1260 (La.App. 1st Cir.1980), this court found that the numerous defects, cumulatively at least, were such that they rendered the vehicle so imperfect that the plaintiff would not have bought it had he known of the defects.

Each case must be decided on its own facts. The court in Newman, at page 1335, said:

“The ultimate question of the existence of a redhibitory vice and the amount awarded in quanti minoris are questions of fact for the trial judge which should not be disturbed in the absence of manifest error or abuse of the wide discretion afforded him. Clinkscales v. Superior Pontiac-GMC, Inc., 365 So.2d 895 (La. App. 4th Cir.1978); Canter v. Koehring Company, 283 So.2d 716 (La.1973).”

We find no manifest error in the trial judge’s conclusion that the combined effect of the defects was redhibitory. Indemnification

Midas and Coleman filed third-party claims against each other which were denied. Midas bases its claim for indemnification on the assumption that all of the defects alleged by the plaintiff were easily repairable, replaceable, or correctable by Coleman’s service department. Coleman urges that absent proof that most of the defects were caused by Coleman’s efforts, Coleman is entitled to indemnification from Midas under La.Civ.Code art.. 2531.

The trial judge found that some of the defects were caused by both poor manufacture and by improper design, thus establishing fault by Midas. He did not enumerate what those particular defects were. He could have been referring to the insecure outside mirrors, the problem with the refrigerator coming out of the wall, the problem with the generator, the exterior trim blowing off, the numerous leaks, or the problems with the curtains, to name a few possibilities. His finding of fault on the part of Midas will not be reversed absent manifest error.

That fault having been established, Midas is in no position to claim indemnification from Coleman.

“When the sale is annulled for a redhi-bitory defect resulting from the original manufacturer, the purchaser can recover the pecuniary loss resulting from the unusable thing sold from the manufacturer as well as the seller.” Rey v. Cuccia, 298 So.2d 840 (La.1974).

In support of its argument, two cases are cited by Midas which deny the dealer indemnification from the manufacturer. Bagwell v. Coleman Oldsmobile, Inc., supra; Daigle v. Robinson Bros., Inc., 368 So.2d 186 (La.App. 1st Cir.1979). In neither ease was the defect found to be caused by the manufacturer. In Perrin v. Read Imports, Inc., 359 So.2d 738 (La.App. 4th Cir.1978), the dealer was allowed indemnification from the manufacturer when it was shown that defects were more probably than not caused by the manufacturer.

These cases do not stand for the proposition that the manufacturer has a right of indemnification when the dealer fails or refuses to repair. They are relevant, however, to Coleman’s claim against Midas.

La.Civ.Code art. 2531 reads as follows:

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

The second paragraph of Article 2531 grants the dealer a right of action in redhibition against the manufacturer. This right, however, may not be enforced when the dealer is at fault in creating defects or in failing to cure easily remedial defects. Evangeline, Etc. v. Coleman Oldsmobile, Inc., 402 So.2d 208 (La.App. 1st Cir.1981); Perrin v. Read Imports, Inc., supra.

The trial court found, upon ample evidence and testimony and after a visual inspection of the motor home, defects in design and manufacture on the part of Midas, and failure on the part of Coleman to do routine maintenance and service, and failure to perform or to perform poorly essential repairs. Because of these findings, neither defendant is entitled to indemnification from the other.

For the above reasons, the judgment of the trial court is affirmed at appellants’ costs.

AFFIRMED.

      . La.Civ.Code art. 2543 reads as follows:
      “The purchaser who has contented himself with demanding a reduction of the price, can not afterwards maintain the redhibitory action.
      But in a redhibitory suit, the judge may decree merely a reduction of the price.”