text:
    Alma LeBLANC, Plaintiff-Appellee, v. STATE of Louisiana, LOUISIANA DEPARTMENT OF HIGHWAYS, Defendant-Appellant.
    No. 8398.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 7, 1981.
    Rehearing Denied Nov. 20, 1981.

      John W. King, Baton Rouge, for defendant-appellant.
    Larry A. Roach, Lake Charles, for plaintiff-appellee.
    Before CUTRER, STOKER and LA-BORDE, JJ.
   LABORDE, Judge.

This is a personal injury case resulting from an automobile accident. Plaintiff, Alma Kelly LeBlanc, sues the Louisiana Department of Highways for damages she sustained as a result of a collision allegedly caused by the Department’s negligence in maintaining a highway shoulder.

The trial court concluded that the Department breached its duty to maintain a reasonably safe shoulder and that the shoulder condition was a cause in fact of the accident. The trial court also concluded that Mrs. LeBlanc’s contribution to her own injuries, made either through her inadvertence or bad judgment, was not sufficient to bar her recovery. Accordingly, judgment was rendered against defendant and plaintiff was awarded the total sum of $623,349.

The Department appeals the lower court’s decision. Plaintiff answers the appeal requesting that the award be increased. Following the principles announced by the Louisiana Supreme Court in Sinitiere v. Lavergne, wherein the Court addressed a fact situation not unlike the instant case, we reverse.

The issues presented are as follows:

(1) Whether the Department was negligent;
(2) Whether Alma Kelly LeBlanc was negligent, and if so, whether her negligence bars her recovery;
(3) Whether the Department is strictly liable under Civil Code Article 2317; and
(4) Whether the damage award should be increased.

FACTS

On appeal, we take the liberty of adopting the facts as set forth by the lower court in its written reasons for judgment:

“The accident occurred on La. Highway 27 during daylight hours between mile post markers 18 and 19. Alma LeBlanc, plaintiff, was traveling northward on La. Highway 27 and reached a point in the road where a curve began in which the road changed from a northeasterly direction to a northerly direction. This resulted in a left turning curve to a north traveling driver. The curve was rounded and the angle was not remarkably acute.
La. Highway 27 in this stretch was a two-lane highway with asphalt surface and narrow shoulders covered with loose clam shell. On the outside of the curve (east shoulder) the roadway was some four to six inches higher than the shoulder.
On entering the curve, plaintiff accidentally drove her automobile off of the roadway onto the shoulder. She experienced the sensation of the dropoff. She testified that she pulled back onto the highway and lost control. The physical evidence of tire marks suggests] that she may have lost control while still on the shoulder. Nevertheless, upon regaining the surface of the highway, plaintiff could no longer control her automobile and turned sideways in the road where she was struck broadside by an automobile in the south-bound lane. Plaintiff’s vehicle then entered a canal on the west side of the road.”

NEGLIGENCE OF THE DEPARTMENT

Although it has been repeatedly stated that the Department is not a guarantor of the safety of travelers, it is equally settled that it nonetheless owes a duty to keep the highways and its shoulders safe for non-negligent motorists. As a result, liability based upon negligence is imposed whenever the Department is actually or constructively aware of a hazardous condition and fails to take corrective action within a reasonable time. LSA-R.S. 48:21(A); Edwards v. State, Department of Transportation and Development, 403 So.2d 109 (La.App. 3rd Cir. 1981); McDaniel v. State, Department of Transportation and Development, 398 So.2d 88 (La.App. 3rd Cir. 1981); Godwin v. Government Emp. Ins. Co., 394 So.2d 751 (La.App. 3rd Cir. 1981); Sinitiere v. Lavergne, 391 So.2d 821 (La.1980); Rue v. State, Department of Highways, 372 So.2d 1197 (La.1979); and Laborde v. Louisiana Department of Highways, 300 So.2d 579 (La.App. 3rd Cir. 1974), writ refused, 303 So.2d 182 (La.1974).

Considering the foregoing, we find no manifest or clear error in the trial court’s conclusion that the level differential between roadway and shoulder of the curve in Louisiana Highway 27 created a dangerous condition amounting to a breach of the Department’s duty to maintain the State’s highways and shoulders in a reasonably safe condition.

We do note however that the trial court, in its written reasons, commented, “In view of the court’s holding that prior notice is not a prerequisite to liability on the part of the department then it is unnecessary to evaluate the data which was presented on previous accidents to determine whether or not such should have constituted real or constructive knowledge on the part of the department.” Under the applicable law and jurisprudence, prior notice, either actual or constructive, is a prerequisite to holding the Department liable for its negligent maintenance of the State’s highways. Hence, the trial court fell into error by stating otherwise. Be that as it may, the record indicates that a four to six inch dropoff was easily observable (and in fact was observed by several motorists who testified during trial) such that the Department, if it did not know, should have known of this dangerous shoulder condition, thus satisfying the notice requirement.

In those actions premised on a negligence theory of recovery (LSA-C.C. Article 2315), the plaintiff must also prove that the defendant’s negligence was a cause in fact of the plaintiff’s injuries, i. e., that a proximate relation exists between the actions of the defendant and the harm which occurs, and that such relation is substantial in character. Using the “but-for” analysis employed by the Court in the Sinitiere case, “but-for” the Department’s failure to correct the elevational difference between the paved surface and its shoulder. Mrs. Le-Blanc would not have encountered the risk of harm (collision) which resulted in plaintiff’s injuries.

ALMA KELLY LEBLANC’S NEGLIGENCE

The Department pleaded the contributory negligence of Mrs. LeBlanc in bar of her right of recovery.

Motorists traveling upon Louisiana’s highways are charged with exercising reasonable care in operating their vehicles. This duty of care encompasses the duties of keeping one’s vehicle under control and maintaining a proper lookout for hazards which by the use of ordinary care and observation one should be able to see in time to avoid running into them. See Sinitiere v. Lavergne, supra, and cases cited therein.

In his reasons for judgment, the trial judge stated:

“Immediately before the accident, plaintiff was driving in a safe manner. It is not alleged nor was any proof offered that anything on the roadway forced the plaintiff to wander onto the shoulder. The court is left to conclude that the maneuver which caused Alma LeBlanc to go too far to the right and off of the paved roadway was the result of either inadvertence or bad judgment.”

In spite of this conclusion, the trial court, citing Rue v. State Department of Highways, 372 So.2d 1197 (La.1979), concluded that Mrs. LeBlanc’s substandard conduct would not bar her recovery.

In Rue, supra, the plaintiff-motorist inadvertently wandered onto the shoulder of the highway and struck a dangerous rut causing plaintiff to immediately lose control of her vehicle. In that case, the Supreme Court announced that a motorist’s duty to drive reasonably does not encompass the risk of injury from striking an unexpected and unexpectable hazard resulting from a negligently maintained highway shoulder. This apparently broad holding in Rue, supra, was subsequently narrowed in the case of Sinitiere v. Lavergne wherein the Court explained:

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

A review of the record convinces this court that Alma LeBlanc did breach the duty of reasonable care owed herself at the time she attempted to re-enter the highway’s paved surface. Photos introduced into evidence reveal no obstructions on the shoulder to prevent plaintiff from gradually slowing her vehicle, to a complete stop if necessary, and then maneuvering it safely back onto the paved surface. Mrs. LeBlanc testified: “. . . I seen cars coming approaching me, so I stayed to my side; made sure I was over to my side, and then the next thing I knew there was a drop-off. I had stepped off of the . . . dropped off of the highway, and I pulled . . . quick— pulled back up onto the highway, and I lost control, and that’s all I ever remembered.” (Tr. 279) Testimony by an expert in the field of vehicle dynamics and driver behavior supports that plaintiff’s accident was caused by excessive oversteering.

We conclude that in addition to the Department’s negligence which was a cause in fact of plaintiff’s damages, Mrs. Le-Blanc’s actions after she left the pavement and traveled onto the shoulder, equally constituted negligence which also was a cause in fact of the collision. Further, we hold that Mrs. LeBlanc’s own negligence contributed substantially to the accident; therefore plaintiff is barred from recovering from the Department under a negligence theory of liability.

STRICT LIABILITY UNDER C.C. 2317

In the alternative, we must consider whether, as plaintiff asserts, the Department is strictly liable under Article 2317 of the Civil Code unless it can prove by a preponderance of the evidence that Alma LeBlanc was guilty of “victim fault”.

Two recent decisions rendered by this court addressed this precise issue. In Godwin v. Government Emp. Ins. Co., supra, and Edwards v. Louisiana, Department of Transportation and Development, supra, this court, applying the law and jurisprudence to fact situations similar to the one here presented, determined that the elements of Article 2317 were satisfied: The highway at issue was in the care and custody of the defendant; it was defective at the time of the accident; the defect occasioned an unreasonable risk of injury; and the defect was a cause in fact of plaintiff’s injuries. Thus the plaintiffs in both cases were entitled to recovery under Article 2317 unless their recovery was barred by an available defense to such an action. Victim fault is such an available defense and in the Edwards case, the court equated victim fault under Article 2317 to contributory negligence under Article 2315.

Applying these principles to the facts of the instant case, we hold that Mrs. LeBlanc’s failure to exercise reasonable care in the operation of her vehicle once she left the travel portion of the highway amounts to victim fault thereby relieving the Department from liability for her damages under Article 2317.

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

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

REVERSED AND RENDERED.


source: Caselaw Access Project

author: DOUCET, Judge.

license: Public Domain

text:
    Wilbert JOHNSON, et al., Plaintiffs-Appellants, v. Succession of Virginia Courville JOHNSON, Defendant-Appellee.
    No. 8400.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 7, 1981.

      Stanford B. Gauthier, II, Breaux Bridge, for plaintiffs-appellants.
    Champagne, Colomb & Brumbaugh, George J. Champagne, Jr., Lafayette, for defendant-appellee.
    Before CULPEPPER, DOMENGEAUX and DOUCET, JJ.
   DOUCET, Judge.

Virginia Courville Johnson died on August 30, 1980 in Breaux Bridge, St. Martin Parish, Louisiana, leaving behind a testament in the form of a nuncupative will by private act, confected on December 17, 1968, in the French language. When the testament was presented for probate, opposition was made by appellants herein on the grounds that said will was not witnessed by a sufficient number of competent witnesses as required by Civil Code Article 1581. More specifically, appellants alleged that two of the five witnesses were not sufficiently fluent in the French language to be witnesses to a will written in French for a French speaking testatrix. Additionally, the opponents to probate alleged that the petitioners in favor thereof failed to carry their burden of proof as required by law. After a contradictory rule to probate hearing, at which testimony of three of the witnesses was received, the district judge ordered the will probated forthwith. From that judgment opponents appeal, maintaining the same issues in their specification of errors. We affirm.

The evidence indicates compliance with statutory requirements ; that it was written at the instruction of the deceased, that it was read to all five witnesses, that the entire proceeding was conducted in French, that the document contains the testatrix’s mark and the signature of all of the witnesses, and that all of the witnesses resided in Lafayette Parish, Louisiana, at the time of the execution. Contested is the competency of two of the witnesses, Sybil Guilliot Callier, and Susan Gautreaux, the latter being a nonresident of Louisiana and unavailable to testify. Another witness was deceased, however, his competency was stipulated. English was the primary language of all of the witnesses and French was utilized secondarily. The testatrix spoke only French. When called upon to testify, Mrs. Callier admitted that she could neither read nor write the French language, however, she could “make out, more or less, what was being said.” Although some words were beyond her French comprehension the trial judge was of the opinion that she possessed sufficient understanding so that she knew when the testator was questioned about whether the document expressed her wishes and understood the testatrix’s response thereto. Appellants assign as error the trial judge’s conclusion that Mrs. Callier’s understanding the gist of the testament was sufficient to qualify her as a witness.

In construing testaments the intent of the testator or testatrix must be ascertained and given effect if such can be accomplished without departing from statutory requirements for a will. A corollary rule, also designed to respect the last wishes of the dead, embodies the maxim, “Magis ut res valeat quam periat”; that a “disposition must be understood in the sense in which it can have effect, rather than that in which it can have none”. La. Civil Code, Arts. 1712, 1713. Carter v. Succession of Carter, 332 So.2d 439 (La.1976); Succession of Roussel, 373 So.2d 155 (La.1979); Succession of Garrett v. Garrett, 295 So.2d 563 (3rd Cir. 1974), writ denied 299 So.2d 800. The purpose of the statutory requirements is to guard against mistake, undue influence, fraud or deception, and to ensure means to determine the will’s authenticity. Soileau v. Ortego, 189 La. 713, 180 So. 496 (1938); Howard v. Gunter, 215 So.2d 222 (La.App. 3rd Cir. 1968); Lee v. Kincaid, 359 So.2d 232 (La.App. 2nd Cir. 1978). Where there is no suggestion of such, substantial compliance with the formalities is sufficient to sustain the will’s validity, as courts will not require strict, technical, and pedantic compliance in the form or language. Stephens v. Adger, 227 La. 387, 79 So.2d 491 (1955); Succession of Morgan, 257 La. 380, 242 So.2d 551 (1970). Where noncompliance with the formalities is alleged, proof of same must be peculiarly strong to overcome the presumption in favor of the will. Dauzat v. Dauzat, 212 So.2d 523 (La.App. 3rd Cir. 1968); Bernard v. Francez, 166 La. 487, 117 So. 565 (1928).

As appellant correctly points out, a witness to a testament must understand the language in which the testament is dictated and written. Succession of Centanni, 142 So.2d 636 (La.App. 4th Cir. 1962); Succession of D’Auterive, 39 La.Ann. 1092, 3 So. 341 (1887). However, all of the cited cases involved situations wherein the testator and/or witness had no knowledge of the language in which the testament was being confected. Counsel has cited no authority, and we have found none, in support of his proposition that formal schooling in French culminating in the ability to fluently write and speak same is a prerequisite to qualification as a witness to a French testament. If such were the law, few if any French testaments could be confected in this state. In the present case the mother’s only language was French, yet she could not read or write in French. If the same literacy requirement advocated by appellants as to witnesses was applied to a testatrix, one in her position would effectively have the legal regime forced upon her. Indeed, few English testaments could be confected, if such a literacy standard were imposed in light of the garrulous verbiage often contained therein. A person may be a competent witness to prove the genuineness of a will without being able to decipher all the words written. Succession of Stewart, 51 La.Ann. 1553, 26 So. 460 (1889). Under the circumstances of the present ease, literacy is not a prerequisite to a witness being qualified as competent.

The trial judge is vested with considerable discretion in assessing whether a witness to a testament possesses a sufficient degree of proficiency in the language utilized, and if so satisfied, by a preponderance of evidence, that the witness understands the tenor of the testament, this court will not disturb that finding. Lewis v. DeJean, 251 So.2d 124 (3rd Cir. 1971). The trial judge herein was of the belief that Mrs. Callier understood the gist of what transpired. We find, in the present case, the required formality for a nuncupative will by private act was met, particularly in light of the fact that there was no suggestion of fraud, undue influence, deception, or mistake.

Appellant further objects that failure to call an absentee witness, Susan Gau-treaux, constitutes failure of the appellees to carry their burden of proof. However, this contention is without merit, as appel-lees presented the requisite number of witnesses pursuant to Code of Civil Procedure Article 2884. Furthermore, Sybil Callier testified that her sister, Susan Gautreaux, spoke French very well and no contrary evidence was presented by appellants.

For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed against appellant.

AFFIRMED.

      . La. Civil Code Article 1581 provides:
      “A nuncupative testament, under private signature, must be written by the testator himself, or by any other person from his dictation, or even by one of the witnesses, in presence of five witnesses residing in the place where the will is received, or of seven witnesses residing out of that place.
      Or it will suffice, if, in the presence of the same number of witnesses, the testator presents the paper on which he has written his testament or caused it to be written out of their presence, declaring to them that that paper contains his last will.”
      La. Civil Code Article 1582 provides:
      “In either case, the testament must be read by the testator to the witnesses, or by one of the witnesses to the rest, in presence of the testator; it must be signed by the testator, if he knows how or is able to sign, and by the witnesses or at least by two of them, in case the others know not how to sign, and those of the witnesses who do not know how to sign, must affix their mark.
      This testament is subject to no other formality than those prescribed by this and the preceding article.”

      . Code of Civil Procedure Article 2884.
      “Except as provided in Article 2886, the nun-cupative testament by private act must be proved by the testimony of a least three of the competent witnesses present when it was made. These witnesses must testify, in substance: that they recognize the testament presented to them as being the same that was written in their presence by the testator, or by another person at his direction, or which the testator had written or caused to be written out of their presence and which he declared to them contained his testament; and that they recognize their signatures and that of the testator, if they signed it, or the signature of him who signed for them, respectively, if they did not know how to sign their names.”
      La. Civil Code Art. 2886 provides:
      “If some of the witnesses to the nuncupative testament by private act, or to the act of superscription of the mystic testament, are dead, absent from the state, or cannot be located, so that it is not possible to procure the prescribed number of witnesses to prove the testament, it may be proved by the testimony of those witnesses then residing in the state and available.
      If the notary and all of the subscribing witnesses are dead, absent from the state, or cannot be located, the testament may be proved by the testimony of two credible witnesses who recognize the signature of the testator, or of the notary before whom the act of superscription of the mystic testament was passed, or the signatures of two of the witnesses to the nun-cupative testament by private act, or to the act of superscription of the mystic testament.”


author: CULPEPPER, Judge.

text:
    Mr. & Mrs. Gerald DARBONNE, Plaintiff and Appellee, v. SONIC DRIVE-IN and First National Bank of Eunice, Defendant and Appellant.
    No. 8401.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 7, 1981.
    Lewis & Lewis, Peter F. Caviness, Opel-ousas and Tate & McManus, Kearney Tate, Eunice, for defendant and appellant.
    Onebane & Associates, Douglas C. Long-man, Lafayette, for defendant and appellee.
    Morrow & Morrow, Patrick C. Morrow, Opelousas, for plaintiff and appellee.
    Before CULPEPPER, DOMENGEAUX and DOUCET, JJ.
   CULPEPPER, Judge.

This is a suit for damages for malicious prosecution. The plaintiffs, Mr. & Mrs. Gerald Darbonne, allege that the defendant, Sonic Drive-In, sold food to Mrs. Darbonne for which she gave them her personal check in the sum of $3.13 drawn on her account at the defendant bank, First National Bank of Eunice. Sonic deposited the check at its own bank, Acadiana Bank, but failed to endorse the check. When the check reached First National Bank of Eunice, it noted the failure of Sonic to endorse the check and returned it to Acadiana Bank. However, in returning the check to Acadia-na Bank, the First National Bank of Eunice attached to the check a slip showing that the “Reason for Return” was “Not Sufficient Funds”. Acadiana Bank returned the check to Sonic. About six months later, Sonic filed criminal charges against Mrs. Darbonne in the Eunice City Court for the issuance of a worthless check in the sum of $3.13. Mrs. Darbonne’s husband, a Louisiana state trooper, learned of the charges and paid the amount of the check to Sonic, who dismissed the charges. Plaintiff then filed the present civil action against both Sonic and First National Bank of Eunice for damages for malicious prosecution. Both defendants answered denying liability and filed third party demands against each other. Sonic filed a motion for summary judgment against both the Darbonnes and First National Bank of Eunice. The trial judge sustained Sonic’s motion and dismissed both plaintiffs’ suit against Sonic and First National Bank’s third party demand against Sonic. Only First National Bank of Eunice appealed. Plaintiffs did not appeal.

Although the judgment dismissing plaintiffs’ suit against Sonic may now be final, the Bank’s third party demand against Sonic is still viable under the provisions of LSA-C.C.P. Article 1111 that the defendant in a principal action may bring a third party demand against any person “who is or may be liable to him for all or part of the principal demand.” (Emphasis supplied.) Thus, if plaintiffs obtain judgment against the Bank, the Bank could still pursue its third party demand against Sonic.

The substantial issue on appeal is whether there are genuine issues of material fact precluding summary judgment dismissing the Bank’s third party demand against Sonic.

The record shows that Sonic’s motion for summary judgment alleges the following grounds for dismissal of both plaintiffs’ principal demand and the Bank’s third party demand:

“On motion of SONIC DRIVE-IN, defendant and third party defendant in the above entitled and numbered cause, through its undersigned counsel, and on suggesting to the court that plaintiffs’ pleadings state that your mover is liable to plaintiffs solely because mover did not follow the provisions of R.S. 14:71 concerning the issuance of worthless checks in that mover failed to notify plaintiff as provided for in the said Article; that said Article does not provide for any notice whatsoever, consequently, mover cannot be held liable to plaintiffs; further, that First National Bank of Eunice, as third party plaintiff, alleges that mover, Sonic Drive-In, was negligent in failing to properly endorse the involved check and failing to inspect the endorsed check to ascertain that it was returned for improper endorsement and failed to adequately follow the provisions of R.S. 14:71 concerning the issuance of worthless checks by failing to notify plaintiffs in writing by certified mail or personal tender of written notice to said issuer and that as shown by the affidavit annexed hereto and the exhibits annexed to such affidavit none of said facts are true and there is no genuine issue as to any material fact in either plaintiffs’ petition or third party plaintiff’s petition and that mover is entitled to judgment as a matter of law. . . . ”

In support of its motion for summary judgment, Sonic first quotes pertinent portions of LSA-R.S. 14:71 as follows:

“The offender’s failure to pay a check, draft or order, issued for value, within ten days after notice of its nonpayment upon presentation has been deposited by certified mail in the United States mail system addressed to the issuer thereof either at the address shown on the instrument or the last known address for such person shown on the records of the bank upon which such instrument is drawn or within ten days after delivery or personal tender of the written notice to said issuer by the payee or his agent, shall be presumptive evidence of his intent to defraud.”

Sonic points out that the above quoted statutory provisions do not require that pri- or to filing a worthless check charge the payee is obligated to notify the maker that the bank has returned the check marked “NSF”. Thus, Sonic argues that in filing the charge it had a right to rely on the Bank’s notation that the check was returned for insufficient funds in the account of the maker.

In support of its motion for summary judgment, Sonic attached the affidavit of its manager, James Shelton, and also a copy of the check and the Bank’s slip showing it was returned for the reason “Not Sufficient Funds”. Essentially, Shelton’s affidavit states the facts regarding the making of the check by Mrs. Darbonne payable to Sonic drawn on her account in First National Bank in Eunice, the deposit of the check by Sonic in its account with Acadiana Bank, who forwarded it to First National Bank, the return of the check by First National Bank to Acadiana Bank with the notation “Not Sufficient Funds”, the filing of the charge by Shelton against Mrs. Darbonne for issuing a worthless check, the payment of the check by Mr. Darbonne to Sonic and the dismissal of the charges by Sonic. In addition, the affidavit states Sonic was not instructed by anyone to give notice to Mrs. Darbonne prior to filing the charge.

In opposition to Sonic’s motion for summary judgment, the Bank argues that Shelton’s affidavit and attachments do not rebut or disprove the allegations of negligence made by the Bank in its third party demand against Sonic. Specifically, the Bank argues Shelton’s affidavit with attachments does not establish: (1) that Sonic endorsed the check before depositing it; (2) that Sonic inspected the check after its return to ascertain that it was returned only for “NSF”; (3) that Sonic gave any notice of the dishonored check to the Dar-bonnes; (4) that Sonic made any effort to determine the Darbonnes’ bank balance after the return of the check; and (5) that Sonic re-deposited the check after the return. Thus, the Bank argues there remain genuine issues of material fact as to all five of these questions which are not answered in Shelton’s affidavit or attachments thereto.

In the alternative, the Bank argues the trial court erred in not allowing the Bank to file on the date of the hearing of the motion for summary judgment certain depositions which had been previously taken but transcribed only a few days before the hearing. The Bank contends these depositions controvert Sonic’s documentary proof.

The Bank is clearly correct in its contention that the trial court should have admitted the depositions. Jurisprudence recognizes that although LSA-C.C.P. Article 966 appears to require the filing of opposing affidavits prior to the date of the hearing of the motion, the same rule does not apply to depositions as to which notice and opportunity to controvert have been previously given. Jones v. Jones, 385 So.2d 880 (La.App. 2d Cir.1980); Thomas v. Signal Insurance Company, 236 So.2d 874 (La.App. 3rd Cir.1970).

These depositions, which are in the record before us under a proffer of proof, are by Mr. & Mrs. Shelton, manager of Sonic and his wife, and by employees of the defendant Bank. They show that Sonic did not endorse the check before depositing it, that Sonic’s only effort to locate the Darbonnes and notify them of the return of the check marked “NSF” was to look in the telephone book which contained no telephone number or address for the Darbonnes, that Sonic did not contact the Bank to determine whether the Darbonnes had sufficient funds, that Sonic did not re-deposit the check, and that in filing the worthless check charge Sonic relied entirely on the notation by the Bank that the cheek was returned for the reason “Not Sufficient Funds”.

At the outset of our discussion of the applicable rules of law, it is appropriate to state briefly that the party moving for summary judgment has the burden of proving by affidavits, depositions, admissions on file, answers to interrogatories or otherwise that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. Moreover, any doubt as to the existence of a genuine issue of material fact must be resolved against the granting of the motion for summary judgment and in favor of a trial on the merits. Sanders v. Hercules Sheet Metal, Inc., 385 So.2d 772 (La.1980); LSA-C.C. Article 966.

Although plaintiffs in the present case do not expressly state their claim is based on malicious prosecution, the allegations of their petition and of the Bank’s third party demand show that this is the nature of plaintiff’s principal demand. In the recent case of Hibernia National Bank of New Orleans v. Bolleter, 390 So.2d 842 (La.1980), our Supreme Court stated the elements necessary to support a claim for malicious prosecution are:

“. . . (1) The commencement or continuance of an original criminal or civil judicial proceeding.
(2) Its legal causation by the present defendant against plaintiff who was defendant in the original proceeding.
(3) Its bona fide termination in favor of the present plaintiff.
(4) The absence of probable cause for such proceeding.
(5) The presence of malice therein.
(6) Damage conforming to legal standards resulting to plaintiff.”

In the present case, as in the Hibernia National Bank case, there is no question concerning proof of the first three or the sixth of these elements. However, we conclude there is a question as to whether there are genuine issues of material fact concerning Sonic’s probable cause for filing the criminal charge and concerning the presence of malice. In Hibernia National Bank of New Orleans v. Bolleter, supra, the court states:

“Probable cause to file suit is a question which depends upon the particular facts as perceived by the person bringing the action. This court has held that public policy requires that all persons have the right to resort to the courts for redress of wrongs, and the law protects them when they act in good faith and upon reasonable grounds in commencing a civil proceeding. Johnson v. Pearce, 313 So.2d 812 (La.1975).
jf: $ sfc * * aft
“This court has held that where there is a lack of probable cause resulting from wanton and reckless disregard of the rights of the party sued, evincing absence of that caution and inquiry a party should employ before filing suit, malice will be inferred.”

In the present case, there are genuine issues of material fact as to whether Sonic had probable cause for filing the worthless check charge. Moreover, since there is a genuine issue of material fact as to whether Sonic lacked probable cause, there could also be a question as to whether this resulted from a wanton and reckless disregard of the rights of Mrs. Darbonne, such that the required element of malice would be inferred.

Under the above stated rule that any doubt as to the existence of a genuine issue of material fact must be resolved against the granting of the motion, and considering all of the circumstances of this case, there is sufficient doubt as to whether Sonic had probable cause to believe that Mrs. Dar-bonne signed a worthless check for the small sum of $3.13, knowing at the time there were not sufficient funds in her account to cover the check. Although LSA-R.S. 14:71 does not require the payee of the check to give ten days’ written notice to the maker before filing charges, the implication of the statute is that the payee should believe the crime has been committed. The depositions by Mr. and Mrs. Shelton state they could not find in the telephone book an address for the Darbonnes, so they did not write or telephone them. This is obviously a fact in their favor. However, other factors to be considered are that Sonic had failed to endorse the check before depositing it, from which it could be argued that this initial neglect by Sonic caused the entire difficulty. Other factors against Sonic are that it made no effort to contact the Bank to determine whether the Darbonnes’ bank balance was sufficient to cover the check. It can be inferred from the circumstances that if it had done so it would have found the Darbonnes’ balance was sufficient and Sonic could have re-deposited the check and this would have ended the matter. Thus, we conclude there are genuine issues of material fact which should go to trial on the merits.

For the reasons assigned, the judgment appealed is reversed and set aside insofar as it dismisses the Bank’s third party demand against Sonic. It is now ordered, adjudged and decreed that there be judgment in favor of First National Bank of Eunice and against Sonic Drive-In denying Sonic’s motion for summary judgment dismissing the Bank’s third party demand. This case is remanded to the district court for further proceedings in accordance with law and the views expressed herein. All costs of this appeal are assessed against Sonic Drive-In. Assessment of costs in the trial court must await a final judgment there.

REVERSED AND REMANDED.


author: CUTRER, Judge.

text:
    Heard Lawrence LeJEUNE, Plaintiff-Appellant, v. J. W. CAPPEL TRUST, Defendant-Appellant, and Steve Duplechain and Ronald Duplechain, Defendants-Appellees.
    No. 8402.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 7, 1981.
    Donald R. Jory, Jennings, for defendant-appellant.
    Ryder & Deshotels, Errol D. Deshotels, Oberlin, for defendants-appellees.
    F. Jefferson Millican, Jennings, for plaintiff-appellant.
    Before CUTRER, STOKER and LA-BORDE, JJ.
   CUTRER, Judge.

This is a suit for damages arising out of an alleged breach of an oral agricultural lease of 110.6 acres of land owned by defendant Cappel Trust, and its beneficiaries, Toinette and Lane Cappel (Cappels). Heard LeJeune (LeJeune) filed suit against the Cappels and Steve and Ronald Duple-chain (Duplechains). The Cappels filed a third party demand against the Duplechains seeking judgment against the Duplechains in the event the Cappels were cast in judgment.

From a judgment of the trial court dismissing LeJeune’s suit, LeJeune and the Cappels appeal.

The facts presented in this suit are as follows:

LeJeune entered into an agricultural lease of 110.6 acres of land with the Cap-pels. LeJeune was to raise soybeans on the acreage during the crop year of 1977. In prior years, the Duplechains had leased the subject land from the Cappels, along with other lands, for the purpose of planting rice and soybeans.

In 1977, LeJeune began to prepare the 110.6 acres for soybean production. The Duplechains, contending that they had a lease by reconduction on the tract in question, went upon the land, destroyed work done by LeJeune and prepared the land for rice cultivation. LeJeune made demand upon his lessor, the Cappels, to restore him to the land pursuant to the lease. The Cappels filed suit to enjoin the Duplechains from dispossessing LeJeune. From an adverse judgment, the Cappels appealed the judgment dismissing the suit for injunction. On appeal, this court, reversing the trial court, held that the Duplechains did not have a lease on the 110.6 acres by reconduction. The suit was remanded to the trial court for a determination of any damages that the Cappels may have incurred. Cappel v. Duplechain, 356 So.2d 77 (La.App. 3rd Cir. 1978), writ den., 358 So.2d 643 (La.1978). LeJeune was not a party to that suit.

LeJeune filed this suit seeking damages for the loss suffered when he was deprived of the right to plant the 110.6 acres in 1977. The trial court denied plaintiff’s claim on the basis that he had failed to prove the amount of losses he incurred. The trial court’s reasons for judgment stated, in part, as follows:

“Although plaintiff did show by reasonable means what the estimated dollar yield would have been, he did not attempt to show how or in what amount the consideration would be paid to the lessor. A judicial determination of damages would therefore require this court to guess at the lessor — lessee financial arrangement.”

The substantial issues on appeal are:

(1) Whether the plaintiff adequately proved the losses incurred, including a deduction for the land rent to be paid the Cappels; and
(2) If an award is made to LeJeune, whether LeJeune would be entitled to judgment against the Cappels.

DETERMINATION OF DAMAGES

At the trial of the suit, LeJeune was the only witness to testify. He stated that he leased the land in question from the Cap-pels for the purpose of producing soybeans for the 1977 crop year. After he started preparing the land for planting, the Duple-chains entered upon the land and began preparing same for a rice crop. LeJeune testified that he was deprived of his right to produce soybeans for the 1977 crop year on this 110.6 acres. He did, however, plant soybeans on other lands containing 149.7 acres which were leased by him from the Cappels. LeJeune also produced soybeans from other lands in the immediate vicinity.

To determine his losses on the 110.6 acres in question, LeJeune introduced into evidence, without objection, a distribution sheet prepared by the Elton Rice Dryer, a community rice dryer, which reflected the total soybeans produced by LeJeune in the area. The net receipts from the sale, after deducting handling, shipping and other deductions, was $122,925.79. The total bushels involved in the sale were 21,218.53. By dividing the number of bushels into the total sale price, LeJeune arrived at a figure of $5.79 as an average price per bushel for his soybeans. After arriving at this average price per bushel, LeJeune, in order to ascertain the average number of bushels produced per acre, testified that he produced 4,127 bushels from a 149.7 acre tract owned by the Cappels in the vicinity of the subject land. By dividing the number of acres (149.7) into the number of bushels produced on the 149.7 acres (4,127), an average production per acre of 27.57 bushels was obtained.

After arriving at the price per bushel and the average yield per acre as set forth above, LeJeune introduced into evidence a detailed tabulation which reflected an estimated loss of $5,284.47. LeJeune, in order to ascertain the various expenses that he would have incurred, used an analysis prepared by the Department of Agriculture Research Report entitled “Costs and Returns for Soybeans Southwest Louisiana Rice Area, Projection for 1977.” This research report was introduced into evidence without objection.

The calculations presented by LeJeune are as follows:

“PER ACRE
“1. Gross Receipts from Balance of Farm 27.57 Bushels
Average Price Received for 1977 Production x $5.79
$159.63
Less 20% for land rent 31,93
$127.70 Gross Receipts
2. Variable Costs - Preharvest
Seed 13.63 13.63
Fertilizer 19.53 less 20%-3.91= 15.62
Lasso 9.45 less 20%-1.89 = 7.56
Lorox 3.61 less 20%- .72= 2.89
Lorox 2.72 less 20%- .54= 2.18
Methyl .59 less 20%- .12= .47
Plane for Lorox .52 less 20%- .10= .42
Plane for Methyl 1.07 less 20%- .34= .73
Machinery 4.74 4.74
Tractors 6.72 6.72
Tractor & Mach.
Labor 9.49 9.49
Labor other 2.62 2.62
Interest 2.79 2.79
$ 69.86 Subtotal Preharvest
Harvesting Costs
Custom Drying $8.11 & Handling
Machinery 3.35
Tractors .90
Labor 3.25
$ 15.60 Subtotal Harvest
85.46 Total Variable Costs
3. Returns Above Variable Costs $ 42.24 Returns Above
Variable Costs
4. Fixed Costs
Machinery 18.50
Tractors 7.33 $ 25.83 Total Fixed Costs
Returns Above Total Specified Costs $ 16.41
Returns Above Specified Costs $ 16.41
Break levees 2 passes @ .53 1.06
Disc 2 passes @2.19 4.38
Ditch 1 time .99
Field Cultivator, 1 pass 1.94
Fertilizer, 300 # 0-26-26 @$140/ton $ 21.00
Custom Spreader Truck 2,00
$ 47.78
Total Acres in field involved x 110.6
$5,284.47”

We must note that the evidence presented by LeJeune was uncontroverted. It is clear that LeJeune had taken into account the land rent that would be due the Cappels in calculating his losses in the calculations set forth above. LeJeune specifically listed the deduction for the land rent in the amount of $31.93 per acre. The trial court erred in holding that this item was not proved.

Upon review, the record, the worksheets prepared by LeJeune and the research report prepared by the Department of Agricultural Economics, present ample proof of the losses incurred by Le-Jeune to be $47.78 per acre. This figure multiplied by the number of acres (110.6) results in a loss of $5,284.47. A consideration of the average yields of other farms in the vicinity of the subject land is an accepted method of arriving at losses sustained by a lessee under the circumstances presented. Broussard v. Stine, 362 So.2d 1174 (La.App. 1st Cir. 1978), writ den., 365 So.2d 244 (La.1978).

Having arrived at the amount of damages, we must next ascertain whether judgment should be rendered against the Cap-pels.

LIABILITY OF THE CAPPELS

The trial court correctly dismissed the plaintiff’s claim against the Cappels. The Cappels, as lessors, are bound “to cause the lessee to be in a peaceable possession of the thing during the continuance of the lease.” LSA-C.C. art. 2692. If the lessee is evicted, the lessor is answerable for the damage and loss sustained by the lessee by the interruption of the lease. LSA-C.C. art. 2696. If, however, the use of the property is greatly impeded through no fault of the lessor, the lessee has no claim for indemnity. LSA-C.C. art. 2699.

When the Duplechains intruded upon the land in question, depriving Le-Jeune of the right to use same, the Cappels immediately filed suit to enjoin such action. The impediment to LeJeune’s use of the property was not caused by any fault of the Cappels. They promptly took action to maintain LeJeune in his rightful possession. Under these circumstances, the Cappels owe no indemnity to LeJeune and are not liable to him for damages. The portion of the trial court judgment dismissing the suit against the Cappels will be affirmed.

As to the Duplechains, they are clearly liable to LeJeune for the damages that LeJeune incurred. Jardell v. Sabine Irrigation Co., Inc., 346 So.2d 1365, at 1369 (La.App.3rd Cir. 1977), states:

“. . . Our courts often recognized the right of a predial lessee, under Article 2315 of our Civil Code, to recover from those who cause damage to his growing crops or other property.”

The judgment of this court in Cappel v. Duplechain, holding that the Duplechains had no lease on the property, has become final. Under these circumstances, the Du-plechains have illegally deprived LeJeune of his right to use the land, and as such, must answer for any damages incurred by Le-Jeune. That portion of the judgment dismissing plaintiff’s suit against the Duple-chains shall be reversed.

For the reasons assigned, the judgment of the trial court, dismissing the suit against the Duplechains, is reversed and it is ordered that there be judgment in favor of LeJeune against Steve and Ronald Du-plechain, in solido, for the sum of $5,284.47 plus 7% interest from the date of judicial demand until September 12, 1980, and 10% from September 13, 1980 until paid. LSA-C.C. art. 2924. In all other respects the judgment of the trial court is affirmed.

All costs of the trial court and for this appeal are to be paid by Steven and Ronald Duplechain.

AFFIRMED IN PART; REVERSED IN PART AND RENDERED.

      . The figure, $48.32, contains an error in addition. The items correctly added would be $47.78. This figure multiplied by 110.6 acres reveals a corrected loss of $5,284.47.

      . “If, without any fault of the lessor, the thing cease to be fit for the purpose for which it was leased, or if the use be much impeded, as if a neighbor, by raising his walls shall intercept the light of a house leased, the lessee may, according to circumstances, obtain the annulment of the lease, but has no claim for indemnity.”


author:
DOMENGEAUX, Judge.
      CULPEPPER, Judge,

text:
    Patricia Ann CREAMER, Natural Tutrix of the Minor, James Timothy Hinds, Plaintiff-Appellee. v. EMPIRE FIRE & MARINE INSURANCE COMPANY, et al., Defendants-Appellants.
    No. 8404.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 7, 1981.
    Rehearing Denied Nov. 20, 1981.

      Watson, Murchison, Crews, Arthur & Corkern, Ronald E. Corkern, Jr., Natchi-toches, for defendants-appellants.
    Thomas & Dunahoe, G. F. Thomas, Jr., Natchitoches, for plaintiff-appellee.
    Before CULPEPPER, DOMENGEAUX and DOUCET, JJ.
   DOMENGEAUX, Judge.

James Timothy Hinds (Tim), aged 14, severely injured his right knee on March 2, 1979, when he slipped in a puddle of water on the floor while roller-skating at the Hot Wheels Skating Palace in Natchitoches, Louisiana. His mother, Patricia Ann Creamer, as Tim’s natural tutrix, filed suit for damages against the owner of the Skating Palace, Claude Cochran, and the liability insurer of the skating rink, Empire Fire & Marine Insurance Company (Empire). Judgment awarding plaintiff special damages of $2,624.00 and general damages of $20,000.00 was signed on January 5, 1981.

Defendants have appealed to argue that the trial court erred in (1) failing to find that plaintiff either voluntarily assumed the risk of injury or was contributorily negligent; (2) finding that the defendant-owner was either negligent or strictly liable under C.C. Art. 2322; and (3) awarding plaintiff $20,000.00 for pain, suffering, and disability.

FACTS

The trial court accepted Tim’s version of the accident. We cannot say the court erred in doing so since Tim’s version of the accident was the only version offered, and his testimony was not contested or contradicted except by some minor inconsistencies between his deposition and his trial testimony which were more attributable to forgetfulness than a propensity to prevaricate. The trial court rightly disregarded these inconsistencies.

According to Tim’s testimony, he entered the Skating Palace at about 8 P.M., and began skating at 9:15 P.M., after paying a $5.00 fee. While skating he noticed some water on the floor in the back of the building. Employees of the rink also noticed the water and cautioned the skaters to be careful, but allowed the patrons to continue skating. Meanwhile the air conditioning system was turned on in an effort to dry the floor.

After becoming aware of the area where water had accumulated (he discovered it after skating through it) Tim continued to skate, successfully avoiding the one area of the floor he knew was wet. Later in the evening, around 11:30 P.M., as he was going around a curve, a little girl ran out in front of him. In an effort to avoid her, Tim swerved, thereby involuntarily venturing to a part of the floor he had not yet traversed. He would not have traversed that area had he not swerved to avoid injuring the little girl because it was near a corner and out of the normal skating pattern. There his skates found another puddle of water, slipped out from under him, and caused him to injure his knee.

NEGLIGENCE OR STRICT LIABILITY?

The trial judge did not specify whether the owner was negligent or strictly liable under La.C.C. Art. 2322. After reviewing the facts we conclude that the owner or his employees were negligent in allowing skaters to skate while the skating surface was in a dangerous condition.

The owner of the rink, Claude Cochran, explained at trial that a sudden change in weather conditions sometimes caused his skating rink floor to become moist or slick. He said that if the floor became too slick his employees were instructed to pull the skaters off the floor. If the floor was not too slick, however, he or his employees would turn on the air conditioner in an effort to dry the floor but would let the skaters continue skating, cautioning them to be careful because of the wet floor. On the occasion in question, however, Mr. Cochran was not there and of the two “floor managers” he said were working that night one did not testify and the other testified that he was not there that night. In addition, no employee filled out an accident report after Tim’s accident, contrary to what the owner said was part of the rink’s policy.

The owner and his employees were aware that an invisible layer of moisture occasionally covered portions of the skating surface. They were also aware of the danger of skating over these wet spots. Yet on the night in question, the employees let the skaters skate while they attempted to dry the skating surface by turning on an air conditioner. Unfortunately, their efforts did not produce timely results. We conclude that the owner’s employees — and thus the owner — were negligent in allowing patrons to skate while the floor was in a condition known by the employees and the owner to be dangerous.

Although we believe that water on an indoor skating surface creates an undue risk of injury to skating patrons, we cannot for that reason conclude that the Hot Wheels Skating Palace was ruined or defective, especially since there is no evidence of a “ruin” caused either by neglect to repair or by a vice in the original construction of the building.

ASSUMPTION OF RISK/CONTRIBUTORY NEGLIGENCE

Because judgment was rendered in plaintiff’s favor, we must assume the trial court rejected the defendants’ argument that Tim assumed the risk or was contributorily negligent.

According to Tim’s testimony, he did not see and was not aware of the patch of moisture which caused his fall. Under the rationale of Dorry v. Lafleur, 399 So.2d 559 (La.1981), a case factually similar to the one before us, Tim’s lack of actual knowledge of the puddle precludes a finding that he assumed the risk of injury unless it can be shown that he must have known or been aware of the puddle which caused his fall. Defendants have not shown that Tim must have been aware of the puddle, and we cannot conclude that the risk of slipping on the invisible patch of moisture is one that Tim must be held to appreciate, since the management, by allowing its patrons to continue skating, implied that the floor was safe for skating so long as known puddles of water were avoided. Defendants have failed to show that the puddle was an open and obvious hazard or that the puddle was pointed out to Tim before he fell. Therefore Tim never assumed the risk of slipping on that puddle.

Was Tim contributorily negligent? If we were deciding that the strict liability principles of La.C.C. Art. 2322 applied, then we would not even consider the question because Dorry v. Lafleur held that “[bjecause the ‘ruined’ building here [another roller skating rink] housed a commercial enterprise to which plaintiff had paid the price of admission, we hold that in this case plaintiff’s contributory negligence is not a defense to his claim.”

Article 2322 controlled the situation in Dorry because several leaks in the ceiling of the skating rink permitted water to leak to the floor during a heavy rain, causing puddles to form. The roof of the skating rink was clearly defective or in a state of ruin. As we mentioned earlier, however, there is no evidence in the instant case that Mr. Cochran’s Skating Palace was defective. Since strict liability is not applicable, the fee-paying customer at this skating rink is not entitled to assert that his contributory negligence (if any) is not a defense to his claim because that holding from Dorry is limited to strict liability situations.

Nevertheless, we conclude that the defendants have not proven that Tim was contributorily negligent. Even though he continued skating after learning that water was on the floor, we note that the rink’s management allowed him to do so. The fact that the management allowed Tim and others to continue skating, after warning them to be careful of the water on the floor, might imply to the reasonable person that it is safe to skate so long as one avoids areas where water is known to have accumulated. This is precisely what Tim did. The fact that he did slip in a puddle and fall does not indicate that he did so because he was negligent. Quite to the contrary, the facts reveal he happened upon the puddle in a corner of the rink involuntarily after swerving to avoid injuring a little girl. He did not see the water prior to slipping in it. We believe his actions were reasonable under the circumstances and did not constitute contributory negligence.

GENERAL DAMAGES

As a result of his skating mishap, Tim suffered an incomplete tear of the posterior horn of the lateral meniscus (cartilage) and a large chondrolar fracture of the lateral femoral condule. A four-hour operation was performed on March 16th by Dr. Donald F. Overdyke, Jr., and two incisions were made on Tim’s knee in an effort to find missing pieces of cartilage. The effort failed. Tim was hospitalized from March 16th-24th. He required crutches for support for eight weeks, and he could not attend classes for the remainder of the Spring 1979 school year. He was not released to normal activities by Doctor Overdyke until August 30, 1979. Tim testified that the pain was severe the first few days following the accident and that at the time of trial it still hurt about once a week. The pain is moderate enough that he does not complain about it, but it does hurt.

Doctor Overdyke opined in his deposition that Tim would experience residual problems with the knee but he could not hazard a guess as to the extent of the residual disability or when that disability would manifest itself.

Considering the extent of Timothy’s injury, including the two long operative scars, the length of his convalescence, his pain and suffering, and the residual impairment, we believe the $20,000.00 award for general damages is within the court’s discretion and is not excessive.

DECREE

For the above and foregoing reasons, the judgment of the district court is affirmed at defendants’ costs.

AFFIRMED.

CULPEPPER, J., concurs and assigns reasons.

CULPEPPER, Judge,

concurring.

I concur in the result. As I understand Dorry, a majority of the Supreme Court does not hold contributory negligence is not a defense to strict liability. The Dorry opinion was written by a justice ad hoc and signed by only two justices. One of the justices dissented, and three concurred in the result only.

Moreover, the holding by the majority in the present case that contributory negligence is not a defense to strict liability is dicta, because we correctly conclude that strict liability does not apply here.

Nevertheless, I concur in the holding that the owner of the skating rink was negligent, and that plaintiff’s son was not con-tributorily negligent and did not assume the risk.

      . Art. 2322. The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice in its original construction.


text:
    Claude O. DUNLAP, Plaintiff-Appellee, v. RED RIVER WATERWAY COMMISSION, Defendant-Appellant.
    No. 8405.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 7, 1981.
    Rehearing Denied Nov. 20, 1981.

      Cook, Yancey, King & Galloway, Charles G. Tutt, Shreveport, for defendant-appellant.
    Michael F. Kelly, Marksville, for defendant-appellee.
    Knoll & Knoll, Kerry L. Spruill, Marks-ville, for plaintiff-appellee.
    Before CUTRER, STOKER and LA-BORDE, JJ.
   CUTRER, Judge.

This appeal involves the respective rights of the parties to a sale of immovable property subject to a servitude. Claude 0. Dunlap (Dunlap) was the original owner of the tract of land upon which he granted a servitude to defendant, Red River Waterway Commission. Webster Paul Guilliot (Guilli-ot) subsequently purchased the property burdened by the servitude. Dunlap filed this suit against Red River Waterway Commission (Red River), seeking payment for land destroyed pursuant to use of the servitude. Payment had been made by Red River to the subsequent purchaser and record owner of the land, Guilliot.

The trial court granted judgment in favor of Dunlap in the amount of $4,715.00, the value of the land used by Red River. It dismissed Red River’s third party demand against Guilliot, which sought restitution of the amount paid to Guilliot in error. The trial court also dismissed Guilliot’s third party demand against Dunlap. Red River and Guilliot appealed.

The issues on appeal are:

(1) Whether the servitude grant between Dunlap and Red River creates rights and obligations which “run with the land;”
(2) Whether the right to receive payment for the servitude remains in Dunlap or does such right to payment run with the land vesting such right in a subsequent purchaser, Guilliot;
(3) If Dunlap obtains judgment against Red River, the issue arises as to whether Red River may recover the payment it made to Guilliot; and
(4) If Red River is allowed to recover from Guilliot, we must determine whether Guilliot has any recourse against Dunlap for the price of the land destroyed due to the use of the servitude.

FACTS

On September 13,1968, Dunlap purchased property from his father, which contains the tract in question. On October 30, 1975, Dunlap granted to Red River a servitude affecting 10.5 acres which abutted the Red River. The servitude was granted in perpetuity to Red River, its successors and assigns. Red River was in the process of constructing revetment works which construction was known as the “Red River Waterway Project.” The servitude grant gave Red River the authority to generally perform the work necessary for the construction and continued maintenance of the revetment works. As to payment for the servitude, the transfer contains the following provision:

“In consideration for the granting of this servitude, GRANTEE agrees, binds and obligates itself to pay GRANTOR at the rate of Five Hundred Seventy-Five and No/100 ($575.00) Dollars for each acre of land actually destroyed as determined by cross-sections taken after the work has been completed and compared with cross-sections taken immediately before the work commenced, the consideration to be due and payable as soon as the amount due can be determined.”

This servitude was filed into the public record on November 3, 1975.

On July 16, 1976, Dunlap sold his land, including that subject to the servitude he granted Red River, to his brother, Marion Dunlap. The sale was by cash deed and made no mention of the servitude previously granted to Red River. Within a year, March 16,1977, Marion Dunlap sold to Guil-liot, by cash deed, 28 of the 40 acres he had acquired from Claude. Included within this 28 acres were the 10.5 acres subject to the servitude granted by Claude Dunlap. This deed made no mention of the prior servitude. Guilliot had purchased the property in question after having had a title examination made of the property.

Dunlap contends that the grant of the servitude was a contract between him and Red River creating a personal right for Dunlap to be paid the amount agreed upon. Red River, as does Guilliot, urges that the right, to receive payment for the land used, is one which passes with immovable property once sold; therefore, payment to Guilliot was proper.

WHETHER THE SERVITUDE “RUNS WITH THE LAND”

The resolution of this first issue is well established by the provisions of the Civil Code and jurisprudence.

LSA-C.C. art. 2012 provides, in part, as follows:

“Real obligations are created in three ways:
* # * * * *
(2) By alienating to one person the immovable property, and to another, some real right to be exercised upon it.
* * * * * *
“All these contracts give rise to obligations purely real on the part of those who acquire the land, under whatever species of title they possess it; . . . .”

This article further provides that a sale of the property, subject to the right of use, is an example of such a real obligation created under # (2) above.

LSA-C.C. art. 2015 declares, in part:

“Not only servitudes, but leases and all other rights, which the owner had imposed on his land before the alienation of the soil, form real obligations which accompany it in the hands of the person who acquires it. although he have made no stipulation on the subject, or they be not mentioned in the act of transfer. . . . . ” (Emphasis ours.)

Under these code provisions, the servitude created herein, is a real obligation which burdens the land and thus travels with the land into the hands of subsequent purchasers. In the case at hand, the real rights granted by Dunlap to Red River followed the land into the hands of the subsequent owner, Guilliot.

PAYMENT TO DUNLAP OR GUILLIOT?

Having come to such conclusion, we must next determine whether the right to payment also travels with the land or does such remain with the original grantor, Dunlap. A review of the jurisprudence reflects that such right is personal to and remains with Dunlap.

In the early case of Taylor v. New Orleans Terminal Co., 126 La. 420, 52 So. 562 (La.1910), the plaintiff purchased land which was subject to a right of use of a railroad tacitly granted by plaintiff’s predecessor in title. The defendant then exercised its right of use by constructing a switch track. The plaintiff sued seeking remuneration for the land appropriated and other general damages. The court appropriately delineated the dichotomy between real rights and real obligations which burden the land and pass with it to successive purchasers, and the personal right of the original vendor to claim remuneration for land appropriated or damaged which does not pass with the sale of the land, except by express subrogation as follows:

“By defendant’s appropriation with the tacit consent of the owner at the time, the right of the strip of land passed from the owner to the appropriator-the right became segregated from the property, and the owner became a creditor for the value of the property taken.
“The right was personal. The owner at the time had a claim personally for the amount.
“The purchaser by the act of purchase does not become invested with a right to the value of the property taken unless the right is transferred with the property.” (Emphasis added.)

In Veillon v. Columbia Gulf Transmission Company, 192 So.2d 646 (La.App.3rd Cir. 1966), writ den., 195 So.2d 143, 250 La. 256 (1967), the court was faced with the issue of whether compensation is a personal right or whether it attaches to the land and passes to subsequent purchasers. The defendant had acquired a pipeline servitude across plaintiff’s land by tacit recognition (St. Julien Doctrine). In the discussion of the owner’s personal right to compensation, the court stated as follows:

“. . . the right to compensation vests in the person who was owner at the time of the unopposed taking and does not inure to his successors in title unless expressly transferred to them by the owner; and neither the owner at the time of the unopposed taking nor his successors in title can interfere with the public use or claim rent or any continuing compensation for such use.” 192 So.2d 646, at 649.

The fact that the servitude in Veillon v. Columbia Gulf Transmission Company, supra, was acquired by tacit recognition instead of by contract does not alter the fact that the right to payment remains with the owner who granted the servitude and does not inure to the benefit of his successors. Thus, from the foregoing, the right to claim compensation is a personal right of the owner of the land at the time the servitude was granted. This right does not pass with the land by its subsequent conveyance unless, of course, there has been an express subrogation or transfer of this right from the owner to his vendee.

In the case at hand, the right to demand compensation is the personal right of Dunlap. The right never passed, by sale of the land, to Guilliot; therefore, Dunlap is the only person entitled to collect from defendant, Red River, for the use of the servitude granted. The portion of the judgment of the trial court in favor of Dunlap for $4,715.00 against Red River shall be affirmed.

RED RIVER’S RIGHT TO RECOVER AGAINST GUILLIOT

Guilliot’s argument to Red River’s third party demand against him raises the question of whether the instrument granting the servitude was properly recorded, since no plat was filed with the instrument.

LSA-R.S. 9:2726 provides, in part, as follows:

“A. Each person obtaining a servitude or right of way across private property where the servitude or right of way is obtained for the installation of a facility, or facilities, shall attach to the servitude or right of way agreement a plat, sketch or aerial photograph showing the approximate location of the servitude or right of way and the instrument and plat, sketch or aerial photograph shall be recorded in the conveyance records of the parish in which the private property is situated.
“B. ‘Person’ as used in this section shall include natural persons, municipalities and parishes and other political subdivisions and agencies and departments thereof, and persons, companies or corporations operating private or public pipelines or private or public utilities.
“C. ‘Facilities’ as used in this section include waterways and drainage canals and underground, surface -and overhead pipelines, sewerage lines, utility lines and electric power lines.
“E. Failure to record the instrument and plat, sketch or aerial photograph herein required shall render the servitude or right of way agreement ineffective except as between erantor and erantee. their heirs, successors and assierns.”

It is to be noted that the recordation requirements of LSA-R.S. 9:2726 do not apply between grantor and grantee, their heirs, successors and assigns. Guilliot was clearly a successor of Dunlap by the purchase of the property in question. This argument of Guilliot is without merit.

Guilliot further contends that Red River should be denied recovery against him in its third party demand. He argues that the release, signed upon payment for the land used in the project, extended the servitude previously granted by Dunlap.

The perpetual servitude granted by Dunlap provides, in pertinent part, as follows:

“Shall have and enjoy the right and privilege of entering and going upon the property hereinabove described; of bringing and using thereon such tools, machinery, equipment and vehicles as they shall consider necessary; of clearing grading and sloping the said property; of excavating and depositing thereon or removing therefrom, in such quantities as they shall see fit oil, sand, shell, clay and gravel; of depositing thereon stone, concrete, riprap and other materials for the construction of the revetment works, and Grantor hereby grants unto Grantee the right of perpetually maintaining such works thereafter.”

Upon payment by Red River, Guilliot signed a release which contains the following language:

“. . . Further, appearer grants unto the Red River Waterway District, its successors and assigns, a perpetual servitude over the above described property for the future development and maintenance of the Red River Waterway Project.” (Emphasis added.)

Guilliot contends the emphasized language broadened the scope of the original servitude granted to Red River by Dunlap.

We disagree with Guilliot’s interpretation of this release. The original servitude grant was perpetual and very broad in its scope. The release does not grant any additional servitude nor does it authorize any additional use of the property. We find this argument to be without merit.

Red River is entitled to judgment against Guilliot for the sum paid to him. LSA-C.C. art. 2301 and art. 2302. The portion of the trial court’s judgment denying Red River’s third party demand against Guilliot shall be reversed.

GUILLIOT’S RIGHT TO RECOVER FROM DUNLAP

Guilliot contends that this was a non-apparent servitude of which he was unaware and wasn’t put on notice; thus, his third party demand against Dunlap should be recognized and judgment rendered accordingly.

Guilliot cites the case of Richmond v. Zapata Development Corp., 350 So.2d 875 (La.1977), in support of his position. Richmond had purchased 640 acres without any title examination or inspection of the premises. Richmond later discovered that oil and gas was being produced from the property under a lease executed and recorded in 1930. Richmond sued his vendor for damages. The court cited the general rule that:

“Because the registry laws are intended only as notice to third parties and have no application whatever between parties to a contract, a vendee is under no obligation to search the record in order to ascertain what his vendor has sold and what it has not, and the vendee is entitled, as between himself and his vendor, to rely upon his deed as written . . .

The court then recognized the long-standing exception to the above rule when it stated as follows:

“An exception to the rule is recognized, however, regarding an alleged eviction resulting from the existence of an apparent servitude on the property. ...”
******
“Louisiana courts also have adopted the view that a vendor does not warrant the property conveyed as free from apparent servitudes. Lallande v. Wentz & Pochelu, 18 La.Ann. 289 (1866); James v. Buchert, 144 So.2d 485 (La.App. 4th Cir. 1962). Cf. Collins v. Slocum, 317 So.2d 672 (La.App. 3rd Cir. 1975). ...”

The rules enunciated in Richmond are inapplicable to this case.

In the case at hand, Guilliot was a third person as far as Claude Dunlap was concerned. Guilliot purchased the property from Marion Dunlap. Claude Dunlap was not the vendor of Guilliot. Where a recorded instrument has language that fairly puts a third person on inquiry as to the title and he does not avail himself of the means and facilities at hand to obtain knowledge of the true facts, he is considered as having purchased the property at his own risk and peril. Judice-Henry-May Agcy., Inc. v. Franklin, 376 So.2d 991 (La.App. 1st Cir. 1979), writ den., 381 So.2d 508 (La.1980). Furthermore, Guilliot stated that he had the title to the property examined. Guilli-ot, through his examiner, had notice of the existence of the servitude. As such, Guilli-ot is in no position to recover any damages from Claude Dunlap. The trial court correctly dismissed the third party demand of Guilliot against Dunlap.

For the reasons assigned, the judgment of the trial court is reversed insofar as it dismissed the third party demand of Red River against Guilliot and judgment on this third party demand shall be rendered in favor of Red River and against Guilliot in the amount of $4,715.00 plus legal interest from the date of demand until paid. In all other respects the judgment is affirmed. The costs of this appeal are assessed one-half to Red River and one-half to Guilliot.

REVERSED IN PART; AFFIRMED IN PART, AND RENDERED.

      . LSA-C.C. art. 2301 states:
      “He who receives what is not due to him, whether he receives it through error or knowingly, obliges himself to restore it to him from whom he has unduly received it.”
      LSA-C.C. art. 2302 states:
      “He who has paid through mistake, believing himself a debtor, may reclaim what he had paid.”


author: GULOTTA, Judge. SAMUEL, Judge, GARRISON, Judge,

text:
    GURTLER, HEBERT AND COMPANY, INC. v. WEYLAND MACHINE SHOP, INC.
    No. 12021.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 13, 1981.
    Rehearing Denied Nov. 20, 1981.

      Bagalman & Fabacher, Marks H. Bagal-man, Robert J. Fabacher, Jr., Metairie, for appellee.
    Stassi & Rausch, Joseph W. Rausch, Edward N. George, III, New Orleans, for appellant.
    Before SAMUEL, GULOTTA, BOU-TALL, GARRISON and CHEHARDY, JJ.
   GULOTTA, Judge.

This dispute arises out of a contract for the construction of an outside stairway for the Charity Hospital at New Orleans. Defendant, a sub-contractor of the plaintiff-contractor, appeals from the dismissal of his third party demand against the architect.

The petition filed by Gurtler, Hebert & Company, Inc. alleges that a purchase order was issued to Weyland Machine Shop, Inc. for the furnishing and delivery of certain steel to be used in the construction. According to the petition, Weyland furnished incomplete and unacceptable shop drawings and failed to provide the structural steel as agreed to in the original purchase order, resulting in delays in the supply of steel and causing damage to the plaintiff-contractor.

In a third party petition incorporated in an answer to an amended petition, Weyland Machine asserts that the delays complained of by Gurtler, Hebert resulted from the failure of the architect, Cimini, Meric, Burns, Counce, Inc. “to provide a satisfactory and complete set of architectural drawings from which shop drawings could be made resulting in multiple revisions, and, eventually, the creation of a new set of shop drawings ...” Also alleged in the third-party complaint is that the architect “improperly and unreasonably withheld its approval for shop drawings which were prepared and completed in a timely fashion.” Weyland seeks in this complaint recovery against the architect in the event that it should be found liable to plaintiff.

The exception of no cause of action and/or no right of action filed by the third-party defendant, asserts, in essence, that because no privity of contract exists between the architect and the third-party plaintiff sub-contractor, Weyland Machine, the sub-contractor is not entitled to recovery against the third-party defendant. The language in the exception states that the architect “is not a party to the contract with Gurtler, Hebert and Company, Inc. or Weyland Machine Shop, Inc.”

Without written reasons, the trial judge maintained the exception and dismissed Weyland’s third-party demand.

Weyland, appealing, acknowledges the non-existence of privity of contract but claims recovery is not based upon breach of contract but tort. The material allegations are that the architect failed to provide adequate plans and specifications, to act reasonably in approving or rejecting the shop or detailed drawings submitted by Weyland and to notify timely other sub-contractors and suppliers “of decisions solely within its discretion”, leading to delays and cost overruns complained of by plaintiff in its main demand.

The architect, on the other hand, claims that as the agent of a project owner, the State of Louisiana, it is to provide supervision for the benefit of the state. According to the architect, a duty is owed to the state by the architect but not to the sub-contractor as claimed by third-party plaintiff. Third-party defendant claims if the subcontractor suffers an economic loss, he may have recourse against the project owner but, absent privity of contract between the architect and the sub-contractor, no recovery can be had against the architect.

Without question, no privity of contract exists between the third-party plaintiff sub-contractor and the third-party defendant architect. We are therefore confronted with the question whether a subcontractor made defendant in a suit by the contractor for breach of contract can assert in a third party demand a cause of action in tort against the architect where no privity of contract exists between the architect and his sub-contractor. We hold that the subcontractor has a right to assert his cause of action against the architect. Accordingly, we reverse the judgment of the trial court.

In Media Pro. Consult., Inc. v. Mercedes-Benz of N.A., Inc., 262 La. 80, 262 So.2d 377 (1972) the Supreme Court, confronted with a redhibition suit between a consumer and a manufacturer allowed the consumer “without privity to recover, whether the suit be strictly in tort or upon implied warranty.” Admittedly, factually and otherwise, the Media production case is distinguishable from the instant suit. Nonetheless, the recognition of the acceptability of the right of a consumer to recover in tort where no privity of contract exists is significant.

In a factually similar case, the U.S. District Court for the Eastern District of Louisiana in C. H. Leavell and Co. v. Glantz Contracting Corp. of La., Inc., 322 P.Supp. 779 (E.D.La.1971) dismissed, by summary judgment, a suit by a contractor against the architect and the general contractor, but further concluded that other claims in tort by the contractor were viable.

In Lumber Products, Inc. v. Hiriart, 255 So.2d 783 (La.App. 4th Cir. 1972), this court held that a building owner without privity with a sub-contractor was not entitled, in a reconventional demand, to maintain a cause of action against the sub-contractor where the contract existed between the contractor and sub-contractor. However, in that opinion we stated:

“Where the damage sued for is the defectively performed work itself, the action is strictly a contractural one and only those who are in privity with the contractor have an action against him. However, where the damage sued for is not the defective work but is instead damage caused by the defective work, a tort action against the contractor is proper when the elements for delictual recovery are present.”

See also, Olympia Co., Inc. v. Gervais F. Favrot Co., 342 So.2d 1275 (La.App. 4th Cir. 1977).

From our consideration of the foregoing cases, we conclude that absent privity of contract a cause of action cannot be asserted based on breach of contract; however, this does not preclude asserting a claim for damages based on the wrongdoer’s tort. Indeed, in Am. Fid. Fire Ins. v. Pavia-Byrne Engineering, 393 So.2d 830 (La.App. 2d Cir. 1981) the Second Circuit recently held that a surety without privity with the owner’s engineer could nonetheless assert a cause of action against the engineer in tort for loss of retainage caused by the engineer’s breach of its duty to render engineering services properly with the care and skill of other engineers under like circumstances.

Applying this rule, we now turn to the allegations in the third party demand to ascertain whether or not they assert a cause of action in tort by the sub-contractor against the architect. The pertinent allegations of the original third party demand are as follows:

“6. Any delays complained of in petitioner’s main demand resulted from the failure of Cimini, Meric, Búrns, Counce, Inc., (hereinafter architects) to provide a satisfactory and complete set of architectural drawings from which shop drawings could be made resulting in multiple revisions and, eventually, the creation of a new set of shop drawings which would not have been necessary had sufficient and proper set of architectural drawings been provided from the commencement of the project.
7. Third party plaintiff additionally avers that third party defendant, architects, improperly and unreasonably withheld its approval for shop drawings which were prepared and completed in a timely fashion.”

In an amended third party demand, the above allegations were amended as follows:

“9. Cimini, Meric, Burns, Counce, Inc. (hereinafter ‘architect’) failed to provide Weyland Machine Shop, Inc. with a satisfactory set of architectural and structural drawings consistent with each other, showing correct elevation, correct bevels, special or particular requirements of the architect, and other information required to prepare a set of detailed drawings acceptable to the architect within the term contemplated by Weyland Machine Shop, Inc. at the outset of its relationship with plaintiff in the main demand.
10. Architect, through its agent, Beall Engineer, Inc., and by its own actions and inaction, improperly and unreasonably delayed and withheld its acceptance of detailed drawings which were ultimately adequately prepared and submitted for approval in a timely fashion.
11. Architects additionally delayed providing H. H. Robertson, Inc., a material-man to the project, with information concerning its decisions as to matters solely within its discretion which were the sole cause of the delays in completing the purchase order with H. H. Robertson, Inc. and which was the sole cause of any increase in H. H. Robertson’s contract price as alleged in the main demand.
12.Architect’s failure to provide adequate plans ab initio, its failure to act reasonably or timely on the submittals of detail drawings, and its failure to provide materialmen with necessary information within its discretion and control, is the sole cause of the delays complained of in the main demand.”

We conclude from the allegations contained in the original and amended third party demands that a cause of action in tort is asserted by third party plaintiff.

Accordingly, it is ordered that the judgment maintaining the exception of no cause and/or no right of action filed by Cimini, Meric, Burns, Counce, Inc. is reversed and set aside. The matter is now remanded to the trial court for further proceedings. Costs to await the outcome of the litigation.

REVERSED AND REMANDED.

SAMUEL, Judge,

dissenting.

The contractual duties involved here are owed by the architect only to the owner, in this case the state. Because of an absence of privity of contract, the architect (the third party defendant) owes no such duties to the subcontractor (the third party plaintiff). And in my view, as pleaded, the actions of the architect on which the subcontractor seeks to base liability are contractual and not tortuous.

Apparently the majority is concerned about depriving the subcontractor of an opportunity to obtain the indemnity he seeks against the architect. But the architect’s actions, if proved as pleaded, would constitute a valid and sufficient defense to the general contractor’s demand in the original suit, and thus the subcontractor would suffer no harm. On the other hand, if the subcontractor cannot prove those actions as alleged, they would not defeat the original demand, nor could they form the basis for a judgment in favor of the subcontractor against the architect.

As I would affirm the judgment appealed from, I respectfully dissent.

GARRISON, Judge,

dissenting.

The allegations of defendant Weyland against the third-party defendant, the architect, necessarily rest upon a contractual premise. See C. H. Leavell & Co. v. Glantz Contracting Corp. of La., 322 F.Supp. 799 (E.D.La.1971). There are no allegations by defendant Weyland as to its having incurred tortious damages.

More specifically, Weyland’s Answer to the Amended Petition by which the architectural firm was joined as a third party, as well as Weyland’s Answer to the Second Amended Petition and Weyland’s Amended Third-Party Demand, seek only that Wey-land be indemnified should Weyland be found liable. Indeed, at this time Weyland has suffered no damages nor loss because judgment has not been rendered against it. Where there is no loss, it is axiomatic that an action for damages will not lie.

Accordingly, the exception dismissing Weyland on the basis of lack of privity was properly granted.


author: BOUTALL, Judge.

text:
    Gerald P. AURILLO v. Tom GRESSAFFA, George Barrilleaux, American Defender Insurance Company, XYZ, ABC DEF Insurance Companies.
    No. 12056.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 13, 1981.
    Rehearings Denied Nov. 20, 1981.
    Gerald P. Aurillo, in pro. per.
    William J. Manion, Thomas B. Wheeler, Metairie, for Tom Gressaffa defendan1>ap-pellee.
    William M. Detweiler, New Orleans, for George Barrilleaux defendant-appellee.
    Benjamin B. Saunders, Davis, Saunders, Miller & Rizzo, Metairie, for American Defender Insurance Co., defendant-appellee.

      Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   BOUTALL, Judge.

Gerald P. Aurillo brough.t suit against two insurance agents and a life insurance company alleging misrepresentations were made by the agents pertaining to the cash surrender value of a life insurance policy. Plaintiff alleges that these misrepresentations were the basis for his acquiring the policy. From a judgment dismissing plaintiff’s suit, plaintiff appeals.

The relevant facts are that in November of 1973, Aurillo consulted with his accountant Charles Lacoste, Jr., who advised Auril-lo that a life insurance policy would be in Aurillo’s best interest. Aurillo then contacted George J. Barrilleaux in order to obtain a $250,000.00 whole life insurance policy. Aurillo wanted a policy which would cover him immediately, but which he would not have to pay for until a few years later. He could not afford to pay the yearly premium required at the time, but he expected that within several years he would have enough income to do so. He also expected that he would have the necessary funds to pay back any money borrowed which was used to pay the premiums. Bar-rilleaux said that he did not offer such a policy, but that he knew someone who did. Barrilleaux contacted Tom Gressaffa of American Defender Life Insurance Company. Gressaffa stated that his company offered such an insurance policy to young professionals and that Aurillo would qualify because he was an attorney. Barrilleaux was an agent of American Defender, but at that time he was not writing any policies for that insurance company. The plan was that Gressaffa and Barrilleaux would help him to obtain a loan from a bank to pay the first three years premiums. Aurillo testified that the agents stated that the cash surrender value of the policy after three years would be large enough to pay off the entirety of the loans except for any interest charges. In effect, Aurillo believed that if after three years he decided to cash in his policy, the entirety of the loans, except for any interest charges, would be set off by the cash value of the policy.

Although there is some confusion regarding the financing of the loans made by First-Citizens Bank and Trust Company of Raleigh, North Carolina, the record indicates that Aurillo received a loan to pay the first year’s premium of $5,430.00 and Bar-rilleaux paid the interest charges. One year later, Aurillo refinanced the loan by issuing a promissory note for $11,837.40 adding the second year’s premium and interest charges. In the third year Aurillo received an entirely separate loan in order to pay for that year’s premium and interest charges.

Aurillo turned in his life insurance policy after three years fully expecting that its cash value would pay off the entirety of the loans, except the interest charges. He did so without ever reading the policy or determining its cash surrender value. The actual cash surrender value of the policy after three years was $9,205.00. Applying this amount against the amount he owed to the bank, Aurillo was still indebted to the bank in the amount of $8,544.32. Plaintiff paid the bank and now seeks reimbursement from the agents and/or American Defender.

At trial, Aurillo and his two witnesses testified that the agents stated that the cash surrender value would equal the amount of premiums to be paid after the third year. The agents testified that the cash surrender value at the end of the first year would be zero and that it would increase as the years went by, but that it would not equal the amount of the premiums after three years. The trial judge was convinced that it was Aurillo’s understanding that the cash value of the policy would equal the loan value at the end of three years. However, the judge believed that such an understanding would be unrealistic and that Aurillo failed to meet his responsibility of reading and knowing the contents of the insurance policy; accordingly, plaintiff’s suit was dismissed at his costs.

The jurisprudence is well settled in holding that an insurance policy serves as the law between the parties. We recite the above because the trial judge was faced with a credibility call in determining whether to believe the plaintiff or the defendant agents, which he resolved in favor of the plaintiff. The record discloses ample basis to conclude that Gressaffa did make the misrepresentations alleged involving the cash surrender value of the policy. Gressaffa’s statements were made either with the intent to defraud or negligently or possibly even recklessly without regard as to the true provisions of the policy that he was selling. Gressaffa was solely responsible for these misrepresentations because Barrilleaux was not familiar with the particular policy that Gressaffa was selling. The insurance company did not in any way give Gressaffa the authority to make such representations as to the value of the policy and is therefore not in any way responsible. We believe that Gressaffa acted for purely personal reasons and that he acted entirely extraneously to the insurance company’s interest. The record discloses that Gressaf-fa’s license to sell insurance was revoked in May of 1976, and that at the time of trial there were at least seven claims made against Gressaffa by various insurance companies claiming fraud and other illegalities.

We agree with the trial judge in this credibility determination; however, we believe that the trial judge was in error when he in effect stated that the representations made were irrelevant. This court believes that Gressaffa had a duty to inform Aurillo that the cash surrender value of the policy would not pay the premiums after the third year. Aurillo acquired the policy based upon Gressaffa’s representations as to its value; accordingly, the misrepresentations made were material and therefore violated the duty of the agent to inform the insured that the policy requested was not the policy obtained. We refer to the case of Cambre v. The Travelers Indemnity Co. et al., 404 So.2d 511 (La.App. 4th Cir. 1981) wherein, the court held that an insurance agent had the duty to inform the insured regarding any differences between the policy obtained and the policy requested. In that case, the insured requested an “all risks” policy on his boat, but was only able to receive a “named risk” policy. The agent was therefore under the duty to advise the insured that the coverage requested was different from the coverage received.

There was also considerable argument made to the effect that when a person signs a written agreement, he is presumed to know its contents and cannot avoid its terms and conditions by claiming that he did not read the agreement. Although the jurisprudence supports such a statement, it should be noted that when a person requests coverage from an insurance company, he only signs the application and not the policy itself. The insurance company is the only party that actually signs the policy. Gressaffa had the duty not to mislead Au-rillo regarding the policy value because Au-rillo did not have the policy at the time he signed the application. Because Gressaffa did mislead Aurillo as to the value of the policy, this court finds that Aurillo’s claim is not defeated by failure to read the policy or determine its cash surrender value. Gressaffa therefore is responsible to the plaintiff for $7,085.00, which is the difference between the sum of the three premium payments and the cash value of the policy, but does not include the interest charges for the loans.

For the above reasons, the judgment appealed from is reversed in part and there is now judgment in favor of Gerald P. Aurillo against Tommy F. Gressaffa in the sum of $7,085.00 with legal interest from date of judicial demand until paid. The judgment in favor of American Defender Life Insurance Company and George J. Barrilleaux is affirmed.

REVERSED IN PART.

AFFIRMED IN PART.

      . LSA-C.C. Arts 1901 and 1945; Rogillio v. Cazedessus, 241 La. 186, 127 So.2d 734 (1961); Prestenback v. Prudential Insurance Company of America, 257 So.2d 698 (La.App. 4th Cir. 1972); Labbe v. Mt. Beacon Insurance Company, 221 So.2d 354 (La.App. 4th Cir. 1969).