author: GULOTTA, Judge. LEMMON, Judge,

text:
    Edward C. RAGAS v. ARGONAUT SOUTHWEST INSURANCE COMPANY et al.
    No. 10584.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 10, 1980.
    Rehearing Denied Feb. 20, 1980.

      Jerald N. Andry and Gilbert V. Andry, III, Edwin R. Fleischmann, Jr., New Orleans, for plaintiff-appellant.
    McGlinchey, Stafford, Mintz & Hoffman, Lawrence J. Centola, Jr., New Orleans, for defendants-appellees.
    Before SAMUEL, LEMMON and GU-LOTTA, JJ.
   GULOTTA, Judge.

Plaintiff appeals from a directed verdict dismissing his medical malpractice claims. We affirm.

On June 19, 1975 Edward C. Ragas underwent surgery at Algiers General Hospital to excise infected lymph nodes in his right groin and right armpit. In his suit directed against the surgeon, plaintiff alleged that because of the doctor’s negligence during surgery he had sustained injury to the median and ulnar nerves of his right arm. In that part of the suit directed against the anesthetist, the recovery-room nurse and the hospital, Ragas alleged that his left eye had been injured when a foreign substance was dropped into it by the anesthetist immediately before or during surgery. At the conclusion of a jury trial, the judge granted a directed verdict in favor of all defendants, and dismissed plaintiff’s suit.

The directed verdict is a new procedural mechanism in civil cases in Louisiana, added to the Code of Civil Procedure in 1977 by Article 1810. The statute does not establish the standards to be applied by the court in ruling on a motion for directed verdict. Furthermore, because of the relatively recent passage of the Act providing for the new procedural device, our Louisiana courts have had little opportunity to speak out. However, the language of the Louisiana Statute is taken verbatim from Federal Rule of Civil Procedure 50(a). It is appropriate, therefore, that we look to the federal jurisprudence for guidance. The Ü.S. Fifth Circuit Court of Appeals in Boeing Company v. Shipman, 411 F.2d 365 (5th Cir. 1969) stated:

“On motions for directed verdict and for judgment notwithstanding the verdict the Court should consider all of the evidence — not just that evidence which supports the non-mover’s case — but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motions is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury.” 411 F.2d at 374.

See also, Campbell v. Mouton, 373 So.2d 237 (La.App. 3rd Cir. 1979).

Applying that well-recognized standard to our case, we find a directed verdict was proper in favor of the anesthetist, the nurse, and the hospital. Plaintiff produced no proof of any causal connection between his alleged eye injury and these defendants’ actions. The only testimony regarding the eye injury came from plaintiff and his wife. Plaintiff testified the anesthetist had dropped some liquid in his eye right before he lost consciousness from the anesthetic. He and his wife both said that his eye began bothering him when he returned to his hospital room from the recovery room after surgery. Both of them admitted, however, that plaintiff himself rubbed his eye for several minutes, and then had his wife blow in his eye for several minutes, before complaining to a nurse. Plaintiff subsequently was seen by an eye specialist at the hospital, but this doctor was not called to testify. Only the hospital record of the eye specialist’s examination was entered into evidence. In that record plaintiff’s complaint was diagnosed as “possible corneal abrasion.” Under these circumstances, we conclude that the evidence offered was woefully insufficient to connect plaintiff’s eye complaint to defendants. We therefore find no error in the granting of a directed verdict in favor of these defendants.

We find the trial judge erred, however, in granting a directed verdict in favor of Dr. Overby. Considering the evidence and all reasonable inferences most favorable to plaintiff, we believe there was sufficient evidence to have placed the question before the jury.

Under our Constitutional mandate to review both law and fact, and because the entire record is before us, a remand in this case would serve no useful purpose. See Gonzales v. Xerox Corp., 320 So.2d 163 (La.1975).

Based on our consideration of the record, however, we conclude that Ragas has failed to establish liability against Dr. Overby. Our conclusion is based primarily on the testimony of the expert medical witnesses who generally testified that it was highly unlikely and improbable that the restricted movement of plaintiff’s hand was causally related to the surgery.

Dr. John Overby testified that if the ulnar and median nerves were cut in the armpit plaintiff would have had a totally useless hand and arm immediately after surgery. Although plaintiff claims Dr. Overby’s testimony was self-serving and contradictory, in fact the substance of the doctor’s testimony regarding the effect of cutting the median and ulnar nerves was well-supported by testimony from other physicians.

Dr. Evan Howell, plaintiff’s own witness, said it is highly unlikely and improbable that there could be a lesion or cut in the median and/or ulnar nerve in the axillary area of the armpit such as to cause only a partial loss or diminished use of the hand as opposed to a full loss of use. Based on his physical findings and tests, Dr. Howell thought it more probable that plaintiff’s injury was due to a previous injury to the right hand or thumb.

Dr. Theodore Soniat, a neurologist, testified that if the median nerve were damaged severely the muscle at the base of the thumb would atrophy and the patient would have trouble with gripping. According to this expert, if the ulnar nerve were severely damaged, the patient could have atrophy of the muscle between the bones at the back of the hands, including the muscle between the thumb and index finger. Dr. Soniat said there could be a partial loss of function if just a small part of the nerve cable were cut; however, it would be difficult to cut these nerves in the armpit.

An orthopedic surgeon Dr. Russell Grun-sten, stated that the limitation of motion in plaintiff’s hand indicated damage to the ulnar and median nerves in the palm of the hand rather than in the armpit. He did not believe the two nerves could be damaged in the armpit without cutting one or both major blood vessels in this area, which would cause major hemorrhage. Further, such injury would cause additional paralysis in the arm. He felt the only logical explanation for plaintiff’s injury would be damage to these two nerves in the palm of the hand.

Dr. Raymond Horn, who had performed knee surgery on the plaintiff in early June 1975, stated that plaintiff had lost use of the muscles between the thumb and forefinger of the right hand. If the ulnar nerve had been damaged at the armpit, he said, plaintiff would have lost some flexion in the fourth and fifth fingers, all sensation in the fifth, half the sensation in the fourth, and all abduction and adduction of the fingers. (Plaintiff’s only loss, however, was the ability to oppose the thumb and forefinger.) Dr. Horn considered it unlikely the ulnar and median nerves to be damaged in the armpit without also damaging the artery.

Dr. Frank Wagner, plaintiff’s family physician, testified that he examined plaintiff a few weeks after the surgery, but plaintiff made no complaints about difficulty with his right arm. His notes did not indicate plaintiff complained about numbness, paralysis, or inability to use the arm. Furthermore, he did not have any independent recollection of complaints of numbness and paralysis. The doctor indicated that he would have noticed had there been substantial abnormal motion of plaintiff’s right arm during his examination.

According to Dr. Howard Nelson, a general surgeon, before striking the median and ulnar nerves during surgery, the surgeon would have to cut through the axillary vein and axillary artery. If this happened, a patient could bleed to death in one or two minutes; there would be blood all over the floor and every place else in the operating room. Moreover, if the ulnar and/or median nerves were cut or struck in this area, the patient would have an immediate and dramatic loss of function and/or sensation in the hand and forearm. If both these major nerves were cut, there would be total and complete loss of motor power and sensation, the patient would be unable to move his fingers or to open and close his hand; and he would have no feeling at all on either side of his hand. Dr. Nelson could not conceive that it would be possible to sever only a portion of the nerves, so as to have only some localized symptoms in the hand. He further testified that if a patient were found by electro-diagnostic studies to have loss of function of his thumb, and that were the limit of his injury, the probable cause of injury would be somewhere in the forearm or wrist, on the recurrent motor branch of the median nerve.

We attach great weight, also, to plaintiff’s lack of credibility. His testimony was impeached on numerous occasions. He denied having made certain statements to doctors who examined him, which the doctors testified he made. He denied he had problems with his arm and hand prior to the operation, although Navy medical records showed that he had lost the ability to oppose his thumb and fingers in the right hand. The doctors who examined plaintiff’s Navy medical record attributed his inability to oppose his thumb and to move certain muscles on the right hand to an accident he allegedly suffered while in the Navy in 1955. Furthermore, despite plaintiff’s complaints of injury to his eye, it is clear that he never received any treatment for the eye after the episode in the hospital, although he said he complained to every doctor he saw about the eye. None of the doctors, on the other hand, remembered him saying anything about it, and none of them had any record of treating him for an eye complaint.

In summary, neither plaintiff’s testimony as a whole, nor the objective conclusion of the medical evidence, supports the malpractice claim against Dr. Overby.

Having so concluded, we affirm the judgment of the trial court.

AFFIRMED.

LEMMON, Judge,

concurs and assigns reasons.

The purpose of the motion for directed verdict is to take away from the jury a case in which the evidence is insufficient to create an issue of fact and .in which any decision other than the directed verdict would therefore be erroneous as a matter of law. In considering a motion for directed verdict, the trial judge does not weigh evidence or evaluate credibility, but rather views the evidence in the light most favorable to the party against whom the motion is made and determines whether that party nevertheless loses the case as a matter of law.

Thus, when the trial judge has granted a directed verdict, the jury has not performed its fact-finding function because the trial judge has determined that there are no factual issues for jury resolution. And when there is an appeal from a directed verdict, the first issue for the appellate court is the correctness of that determination by the trial judge.

If the appellate court determines that there were factual issues which should have been presented to the jury, then the directed verdict must be set aside. In other jurisdictions the matter is then remanded for retrial. However, a Louisiana appellate court, which has the constitutional power to review both the facts and the law, has the power, after setting aside a directed verdict, to render a decision based on the record (if complete).

Therefore, while one cannot question the power of a Louisiana appellate court to find facts and to render decisions based on the record after a judgment granting a directed verdict has been set aside, one can question the wisdom of exercising this power in all cases. Such action has been justified only on the basis of judicial economy. See Gonzales v. Xerox Corp., above.

It appears inconsistent for an appellate court to determine that the record presents a question for jury resolution which should not be decided by the trial judge (who heard the evidence) and then to proceed to resolve the question by weighing evidence and making credibility determinations based on the reading of a cold record. Perhaps more importantly, such action by an appellate court is a distortion of the proper allocation of functions between the trial and appellate courts. See Canter v. Koehring Co., 283 So.2d 716 (La.1973).

Louisiana procedural concepts generally guarantee a litigant one trial and one appeal. In the present case, however, neither the trial judge nor the jury has performed the fact-finding function allocated to that tier of the judicial system. The result of the procedure employed here is that one court performs both the trial function of finding facts and the appellate function of determining whether the evidence supports the factual findings requisite for the judgment.


source: Caselaw Access Project

author: STOULIG, Judge.

license: Public Domain

text:
    Marguerite Cecilia Landry, Wife of Thurman Paul HALL, Jr. v. Thurman Paul HALL, Jr.
    No. 10592.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 10, 1980.
    Rehearing Denied Feb. 20, 1980.

      Evangeline M. Vavrick, New Orleans, for plaintiff-appellant.
    Jacqueline Mae Goldberg, New Orleans, for defendant-appellee.
    Before GARRISON, CHEHARDY and STOULIG, JJ.
   STOULIG, Judge.

Plaintiff’s appeal has raised the following issues: (1) did the trial court abuse its discretion in increasing to $50 a week the child support for the three minor children (ages 9, 10 and 11 years)? (2) did the court err in allowing the defendant father a credit of $225 against the accrued child support for the summertime visitation of the children? and (3) did the court err in assessing plaintiff $372.75 as her share of the court appointed expert’s fee?

Certain basic concepts are so ingrained in our law and jurisprudence as to require no citation of authority. These well accepted principles are the much discretion of the trial judge, the criteria of needs of the children and the ability of the parents to respond, and the mutual obligation of both parents to contribute to the support of the children. However, the discretion vested in the trial judge is not limitless and is circumscribed by the factual details of each case. Whenever the exercise of this discretion falls below or exceeds the criteria of reasonable needs and the ability to respond, then the appellate function mandates an adjustment.

The record reflects that plaintiff has gross wages of $685 and net earnings of $562 per month. Her itemized list of monthly expenses for herself and her three sons which amount to $955.14 are most reasonable and provide only the basic necessities. Obviously financial assistance from the defendant is mandatory.

As opposed to the above, the defendant operates the successful “high profit, low overhead” business of “Clean Rite Septic Tank Service”, primarily a one man operation. His business records were so incomplete and his testimony so confusing that the trial judge found it necessary to appoint a certified public accountant to examine and analyze his records and determine defendant’s monthly income.

It should be noted that all of the defendant’s personal and business affairs and ex-' penses were conducted through one bank account. According to the records furnished by the defendant for the period January through August, 1978, his expenses excluding gas and food totaled $9,407.41 and his receipts amounted to $11,073.00 or a net of $1,665.59. However, his bank account discloses deposits of $21,421 or a net of $12,013.59 for the same period. A mere arithmetical computation reveals a monthly surplus of $1,500.

Both parents remarried. Plaintiff is presently separated from her second husband and is burdened with obligations from that marriage. Unquestionably defendant is in a much better financial position to contribute to the support of his children than is his former spouse. The expenses listed for the support and maintenance of the three children are reasonable and cannot, in these inflationary times, be met by plaintiff’s limited means and a contribution of $50 per week by defendant. For this reason the award of the trial court does not meet the criteria of the needs of the children and the ability of the more substantial parent to respond. Accordingly, the child support is increased to $75 per week.

The alimony ledger of the clerk of court and other evidence establishes that the defendant was delinquent in the payment of $900 of child support. The trial court allowed the defendant a credit of $225 against the accrued delinquent child support apparently to compensate the father for the time the children were visiting with him.

In this respect the trial court erred. Accrued child support is a property right of the party in whose favor it is granted. In computing the amount due under a judgment of support, the father is not entitled to a credit for the time the children resided with him absent a modification of the judgment which made the award. Stated another way, credits based on equitable considerations cannot be applied retroactively against the vested property right of accrued child support and can only be considered prospectively if the child support judgment is amended or altered by a subsequent judgment. Accordingly, the judgment of the trial court is amended to award plaintiff the sum of $900 delinquent child support.

The last issue involves the assessment of expert fees of the certified public accountant equally between the parties. While the need for the appointment of the certified public accountant is solely attributable to the defendant’s incomplete and fragmentary business records and his confusing testimony, it could arguably be urged that he should bear the entire expenses in connection therewith. However, the need for the appointment of the expert and the assessment of his fees equally between the parties falls within the much discretion of the trial judge and unless palpably abused cannot be changed on appellate review. We do not find such an abuse of his discretion.

For the above reasons the judgment of the trial court must be amended in part, affirmed in part and is recast as follows:

IT IS ORDERED that the child support payments of Thurman P. Hall, Jr. to Marguerite Cecilia Landry Karajulles for the support of their three minor children be increased to the sum of SEVENTY-FIVE ($75.00) DOLLARS per week commencing from December 4, 1979, the date of submission of this matter.

IT IS FURTHER ORDERED that the rule to make the delinquent child support executory be and the same is hereby made absolute and accordingly IT IS ORDERED that the amount of the judgment in favor of Marguerite Cecilia Landry Karajulles and against Thurman P. Hall, Jr. be increased to the sum of NINE HUNDRED ($900.00) DOLLARS, together with legal interest thereon from November 28, 1978 until paid. In all other respects the judgment of the trial court is affirmed. Costs, at the trial and on appeal, are assessed against the defendant Thurman P. Hall, Jr.

AMENDED IN PART; AFFIRMED IN PART; AND RECAST.

      . The C.P.A., Lewis H. Heston, informed the trial judge by letter that he was unable to express an opinion on the statement of income of defendant.

      . Remarriage will not relieve a spouse from the obligation of supporting a minor child bom of a prior marriage. The necessary expenses and obligations of the second marriage is a factor that may be considered in fixing the amount of child support. Jackson v. Jackson, 275 So.2d 456 (La.App.2d Cir. 1973).

        . Thompson v. Courville, 372 So.2d 579 (La. App.3d Cir. 1979); Vernon v. Leger, 363 So.2d 1338 (La.App.3d Cir. 1978); Mertens v. Mertens, 308 So.2d 506 (La.App.3d Cir. 1975); Simon v. Calvert, 289 So.2d 567 (La.App.3d Cir. 1974).


author: CHEHARDY, Judge.

text:
    August D. CORCORAN, Thomas P. Simmons, and Alvin H. Boquet v. NEW ORLEANS FIRE FIGHTER’S ASSOCIATION LOCAL 632 and Clarence J. Perez.
    No. 10595.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 10, 1980.

      Duke & Porterie, John L. Hantel, New Orleans, for plaintiffs-appellants.
    Barker, Boudreaux, Lamy, Gardner & Foley, C. Paul Barker, New Orleans, for defendants-appellees.
    Before GARRISON, CHEHARDY and STOULIG, JJ.
   CHEHARDY, Judge.

Plaintiffs August D. Corcoran and Thomas P. Simmons have appealed a judgment dismissing their libel suit against the New Orleans Fire Fighter’s Association and Clarence J. Perez on an exception of no cause of action.

In adjudicating the validity of an exception of no cause of action, the pleadings in the petition are accepted as true and any doubt as to whether a cause of action is stated must be resolved in favor of granting plaintiffs a trial on the merits. C.C.P. art. 931; Hero Lands Company v. Texaco, Inc., La., 310 So.2d 93 (1975), and Fontenot v. Fontenot, 235 La. 488, 104 So.2d 431 (1958). Plaintiffs’ petition alleges that they are employees of the New Orleans Fire Department and have been for many years; that until September 1, 1978, they were members of the New Orleans Fire Fighter’s Association Local 632 and at that time they resigned; that in November 1978 a publication, edited by Clarence Perez, libelled them by listing them as freeloaders and slackers which damaged their reputations among their coworkers; that the publication “Crescent City Fire Fighter” has a circulation of 6,000 and is distributed to many citizens and government officials in the New Orleans area; that the libel was intentional and malicious; that the character and integrity of petitioners have been damaged; and that some but not all of the nonunion members were named in this publication.

The publication upon which plaintiffs base their claim is attached to the petition. After alluding to both plaintiffs by name as freeloaders, a poem entitled “A Freeloader” is printed which, inter alia, likens the freeloader to “a fair weather friend”, or a “leach on a toad.”

The essential elements of a defamation action, whether libel or slander, are defamatory words; publication or communication to some person other than the one defamed; falsity; malice, actual or implied; and resulting injury. Trahan v. Ritterman, 368 So.2d 181 (La.App.1st Cir. 1979); Carter v. Catfish Cabin, 316 So.2d 517 (La.App.2d Cir. 1975). Measured by these standards, the plaintiffs’ petition does state a cause of action.

The bases upon which defendants rest their exceptions are the assertions that the publication is true, and alternatively, if in fact the statements are derogatory or exaggerated, then defendants are protected by privilege. Defendants may not defeat plaintiffs’ right to trial on the merits via exception of no cause of action with aver-ments that raise new issues and are properly the subject of affirmative defenses. In Madison v. Bolton, 234 La. 997, 102 So.2d 433 (1958), the Supreme Court listed as valid “defenses” in a libel case (1) truth; (2) fair comment and criticism (concerning persons in public life); and (3) privilege. In the more recent case of Carter v. Catfish Cabin, supra, again the court alluded to “truth” and “privilege” as defenses.

The publication attached characterizes plaintiffs as freeloaders and slackers and the petition asserts some nonunion members were singled out for this public attack which they assert was made with malice. The defendants must affirmatively show that they are exempt from the application of C.C. art. 2315 if plaintiffs prove these assertions when this case is tried on the merits.

At this stage it is premature to consider either First Amendment or federal preemption privilege claims. Not only does our jurisprudence support the proposition that a claim of privilege is a defense, not the basis of an exception, but the federal decisions relied upon by defendants indicate trials on the merits were held. In Old Dominion Br. No. 496 Nat. Ass’n, Letter Car. v. Austin, 418 U.S. 264, 94 S.Ct. 2770, 41 L.Ed.2d 745 (1974), the Supreme Court explained the privilege doctrine in libel litigation. Even though the privilege rests on First Amendment free speech guarantees and a policy declared by federal law to permit vigorous labor activity, it is essential to hold a trial on the merits to determine whether in fact the alleged libel was made within the scope of activity exempted as privileged by federal policy.

For the reasons assigned, the judgment appealed from is reversed and this matter is remanded for further proceedings consistent with the views herein expressed.

REVERSED AND REMANDED.

      . Plaintiff Alvin H. Boquet did not appeal from the adverse judgment; therefore, as to him, the decision of the trial court is final.


author: CHEHARDY, Judge. STOULIG, Judge,

text:
    The STATE of Louisiana in the Interest of Robert Joseph DAVIS.
    No. 10603.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 10, 1980.

      James W. Blackman, Marrero, for Deedri Davis, appellant.
    Craig J. Cimo, Gretna, for Patricia C. Aple and Richard C. Aple, III, appellees.
    Before GARRISON, CHEHARDY and STOULIG, JJ.
   CHEHARDY, Judge.

By this appeal Deedri Davis challenges the authority of the Juvenile Court for the Parish of Jefferson to maintain temporary custody of her minor son Robert in Mr. and Mrs. Richard Aple. The Aples were given temporary custody when the mother voluntarily relinquished custody because she was financially not able to take care of him.

Upon receiving a letter dated April 14, 1978 from appellant in which she said she was financially unable to care for her child, the juvenile court granted temporary custody to the Aples. Approximately four months later, Ms. Davis informed the court she wished to get her child back. She stated she was living in Florida with her mother and could provide adequate care, and inquired as to how she could regain custody. By response dated August 24, 1978 a juvenile court social worker informed the mother that the Jefferson Parish Department of Health and Human Resources would request a home study into her Florida environment. On September 7, 1978 Ms. Davis advised the Jefferson social worker how to reach her so that the investigation could be conducted.

No investigation was ever made in Florida; more than four months elapsed during which time the case was transferred from the Jefferson Parish office to the Orleans Parish division of the Health and Human Resources Department because the Aples lived in Orleans Parish. On January 30, 1979, the Jefferson office advised the Orleans office that Ms. Davis intended to bring a rule to revoke custody. The rule, originally set for February 22, 1979, was continued by consent until March 9, 1979.

Appellant testified she was now financially able to take care of her child and desired to have him returned. Although appellant was never formally charged with neglecting, abusing or abandoning her child, the juvenile court, over the objection of appellant’s' counsel, admitted evidence that would have been relevant had neglect, abuse or abandonment charges been before the court. His verbal findings of fact would support conclusions of neglect and abandonment.

The learned trial judge in his oral reasons for finding the child neglected observed: “I find that the child, I find beyond reasonable doubt, I don’t have to use that standard, but that’s the standard . . . was grossly neglected child at that time.”

In discussing the living conditions of the child at the time the mother consented, over the phone, for the Aples, whom she did not know, to take the child, the court noted:

“ * * * Nobody ever controverted that the apartment was deplorable, absolutely deplorable with vomit and the urine * *. The mother never controverted that. * * I don’t believe there was medicine available * * * the mother said in rebuttal that she fed the child, I can’t believe that. And find a child with a distended stomach weighing only ten pounds. A healthy child weighs pretty much that at birth. At six months? You should have doubled your weight just about. * * * [T]he mother, there’s great, great [inconsistencies in what she says, that she was tremendously unemployed at the time, she had to . yet, under cross-examination it turns out that she had been out of work for about two weeks at this time. Just about two weeks only. There was no electricity, lights coming in with an extension cord from someplace else, and yet, the grandmother who offers now to provide all kind of assistance, the maternal grandmother, she was living in the apartment at the same time. * * * The neighbor said that the child, that he really stank * * * a smell that came from the child, dressed in filthy rags, mildew on the sheet, the apartment stunk, bed full of urine, that’s what the neighbor said, not what Mrs. Aple said. The mother did take off that night, she was supposed to be gone from 9 to 11, she was in fact gone the entire night when they were called. The mother testified that she had met Mrs. Aple, that’s just not so. I’m not prepared to say that Mrs. Aple just making up this story * * * it has the ring of truth. The mother’s testimony just does not have the ring of truth. There is inconsistencies in at least three different areas. * * * [A]nd this arrangement [giving up of the child in April of 1978] was done on the phone, now whether you say ‘I’m giving to you temporarily.’ Whether you say ‘I’m giving to you for adoption’, that’s not the important point. The important point is this was done with somebody over the phone, you never even met one time. * * The child is . child was defenseless * * * we find the child to be a child in need of care. This is the new terminology pursuant to ... a grossly, neglectful situation that existed then. * * * [N]ot one single bit has been proven to show that the situation has been changed. * * * Accordingly then, pursuant to new law, the child stays where it is * * * we find the child to be in need of care. The Aples are granted custody, pursuant to law, this matter will be set for further disposition in six months. * * * ”

The trial court held and appellee argues the jurisdiction conferred in this case was granted by L.R.S. 13:1570(C), which provides:

“To award the custody of a child domiciled within the parish or who is actually in the parish to an agency, institution or individual when the parent or other person having custody or care of the child wishes to relinquish custody or care for the purpose of enabling the child to receive adequate care and protection.”

When this matter was tried, the quoted section of the revised statutes had been superseded by C.J.P. art. 17(A)(2), which states substantially the same thing as the quoted section. Insofar as it relates to issues in this case, the new law is a restatement of the old.

C.J.P. art. 17(A)(2) applies only in a situation where the parent voluntarily acquiesces in temporary custody being vested in a nonparent and the jurisdiction conferred by this section continues only so long as the surrendering parent continues to consent to the juvenile court’s exercising discretion to award custody. In Dillon v. State, 336 So.2d 1066 (La.App. 2d Cir. 1976), the court held that a parent who voluntarily surrenders a child to the state need not prove her fitness to be a parent in order to reacquire custody. Dillon noted that irrevocable custody is given to the state only if the parents voluntarily surrender the child for adoption and signify their assent by authentic act or if the parents are adjudged to have neglected, abused or abandoned the child.

In this case the court continued the child in the custody of the Aples on a finding that he “ * * * was in need of care.” C.J.P. art. 15 gives the court exclusive jurisdiction to conduct a proceeding in which a child is alleged to be in need of supervision. C.J.P. art. 45 states any proceeding under Article 15 must be commenced by petition. Article 46 requires the petition to be filed at least 48 hours before any hearing to determine continued custody and further states that if no petition is filed the child should be released.

We share Judge Gothard’s concern for the child and recognize that the first obligation of this court is to make certain that the child receives the care he is in need of.

We therefore conclude that Ms. Davis could request the return of her child where she had voluntarily surrendered custody; that the juvenile judge was correct in his finding that the child is a child in need of care; that pursuant to C.J.P. art. 45 filing of a petition is a prerequisite to the finding that a child is a neglected child; that under paragraphs (6) and (7) of C.J.P. art. 40 the court could authorize continued custody prior to adjudication; and that C.J.P. art. 2 requires this code to be liberally construed to do what is best for the welfare of the child.

Under the authority vested in this court by C.C.P. art. 2164 it is the judgment of this court that the custody of Robert Davis vested in Mr. and Mrs. Richard Aple be continued for three weeks from the signing of this judgment and that if proceedings are not taken within that time to satisfy the requirement of C.J.P. art. 45, the custody of the child Robert Davis vested in Mr. and Mrs. Richard Aple shall be rescinded and custody restored to Ms. Deedri Davis.

For the reasons assigned, the judgment appealed from is amended to limit the continued custody of Robert Davis in Mr. and Mrs. Richard Aple to only an additional three weeks after the decree of this court becomes final.

AMENDED AND RENDERED.

STOULIG, Judge,

concurring.

I concur in that part of the majority opinion which holds the filing of a petition (C.J.P. art. 45) is a prerequisite to vesting exclusive jurisdiction in the juvenile court to adjudge if a child is a delinquent, in need of supervision, or in need of care (C.J.P. art. 15). I also agree that jurisdiction vests in a juvenile court under C.J.P. art. 17(A)(2) to make an award of custody when the parent voluntarily relinquishes the custody of the child in order for it to receive care and protection.

However, under the jurisprudence expressed in Dillon v. State, 336 So.2d 1066 (La.App. 3d Cir. 1976), the voluntary surrender of custody by a parent is not irrevocable unless made in a formal surrender for adoption or if the parent is adjudged to have neglected, abused, or abandoned the child. It therefore follows that the parent is entitled to the return of the custody upon request unless it is established that the child has been formally placed for adoption or that the parent is not a proper or fit person to be entrusted with the care of thq juvenile. The burden of this proof rest! with the State.

The mandatory requirement of a petition is for the sole purpose of affording the parent and child their constitutional right of due process by timely informing them of the nature of the complaint and giving them an opportunity to be heard.

I do not subscribe to the holding of the majority that C.J.P. art. 40(6) and (7) vests continued jurisdiction in the juvenile court over custody of the child. The implication is that this article relieves the juvenile authorities of the necessity of complying with C.J.P. art. 45. On the contrary, a reading of art. 40 authorizes the court to order continued-custody of a child prior to adjudication for several causes enunciated in the article. Art. 46 specifically provides that if a child is continued in the custody of the juvenile court prior to adjudication, then “a petition shall be filed within forty-eight (48) hours of the hearing to determine continued custody” and the failure to do so will result in the release of the child. These two articles must be read in pari materia and in effect mandate filing a petition within 48 hours or release of the child.

In the instant case no petition was filed. When the mother sought the return of her child, the juvenile court no longer had jurisdiction to determine custody and the child should have been returned to her. Should the juvenile authorities feel that the welfare of the child demands either a hearing or continued control of custody in the court, it has at its disposal the simple expedient of ordering of a filing of a petition under C.J.P. art. 45 for any of the causes enumerated in C.J.P. art. 15.


author: HOOD, Judge.

text:
    Robert REEVES v. A & M PEST CONTROL SERVICE, INC.
    No. 10607.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 10, 1980.

      Robert A. Pitre, Jr., Gretna, for plaintiff-appellee.
    Baldwin & Haspel, H. Sloan McCloskey, New Orleans, for defendant-appellant.
    Before BOUTALL, SCHOTT and HOOD, JJ.
   HOOD, Judge.

Robert Reeves instituted this suit to recover wages alleged to be due him by A & M Pest Control Service, Inc., plus penalties and attorney’s fees. Defendant reconvened seeking to recover from plaintiff the value of one of its trucks which it alleges was damaged as the result of Reeves’ negligence. The trial court rendered judgment awarding plaintiff the past due wages which he claimed, rejecting his prayer for penalties and attorney’s fees, and dismissing defendant’s reconventional demand. The defendant-reconvenor appealed. We affirm.

Reeves did not appeal and he did not answer the appeal which was taken by defendant. We are not confronted with the question, therefore, as to whether plaintiff is entitled to recover penalties and attorney’s fees in addition to the wages which were awarded to him.

The sole issue presented here is whether the defendant-reconvenor is entitled to recover from plaintiff the value of the truck which was involved in the above accident, or alternatively, damages for the amount which would be required to repair that vehicle.

In June, 1977, plaintiff worked as a termite inspector for defendant at a wage or salary amounting to about $500.00 per month. On June 1 of that year, while Reeves was driving one of defendant’s trucks, he became involved in a motor vehicle collision which resulted in damages to the truck. Shortly thereafter, the president of defendant company, feeling that the accident was caused by the negligence of plaintiff, asked Reeves to sign a “Repayment Agreement,” which would have authorized A & M Pest Control to deduct and retain the sum of $25.00 out of and from each paycheck due plaintiff thereafter, until defendant had recouped the damages which it had sustained. Plaintiff refused to sign that authorization, and defendant thereupon began withholding the paychecks which otherwise would have been delivered to Reeves as payment of his salary. Plaintiff was paid on the fifth and twentieth of each month, and defendant withheld and retained wages which were owed to him on June 5 and on June 20, 1977. Reeves resigned as an employee of defendant after the second paycheck was withheld, and thereafter he instituted this suit to recover the amount of past due wages which had been withheld, plus penalties and attorney’s fees, as provided in LSA-R.S. 23:631, et seq.

The aggregate sum of $540.00 was withheld from plaintiff’s wages by defendant, and the amount so retained by the employer has never been paid to Reeves. We find that plaintiff is entitled to recover that sum from A & M Pest Control Service. There is no error in that part of the trial court’s judgment, therefore, which awards plaintiff that amount.

Defendant argues, however, that under its reconventional demand it is entitled to recover from plaintiff, either the value of the truck, which it claims was damaged beyond repair by the negligence of plaintiff, or alternatively, damages for the cost of repairing the truck in an amount equal to the aggregate sum it withheld from plaintiff’s wages.

The trial judge found that the reconvenor had failed to prove by a preponderance of the evidence that it was entitled to any award at all for damages to the truck.

Although the evidence shows that a motor vehicle collision occurred involving a truck owned by defendant, and being driven at that time by plaintiff, it fails to establish the value of the truck, or the extent to which that vehicle was damaged or the expenses which would have to be incurred in repairing that damage.

Mr. Fahey, the Gretna Manager of defendant company, testified that he saw the truck after the accident and observed that the “frame or whatever” on the front of the truck was bent so that you could not steer it, that it would circle and would not go in one direction, that it would not operate properly, and that the truck did not go back into service as far as he knew. Mr. Falati, Vice-President and General Manager of defendant company, apparently did not see the truck after the collision, but he stated that according to the records of the company the truck was not used after the accident. Both of the above officials concede, and counsel for defendant stipulated, that no appraisal was ever made of the truck and no estimate was ever made as to the damages which resulted from the accident.

No automobile mechanic and no motor vehicle expert or appraiser testified at the trial. No repair bills were offered, and no one, not even a lay witness, expressed an opinion as to the value of the truck, or suggested a figure as to what it might cost to repair it. Counsel for defendant asked the court to take cognizance of the value of the truck as shown in the “NADA rating,” but the court ruled that that was not a matter for judicial cognizance. The re-convenor thereupon rested its case.

We agree with the trial judge that the evidence fails to establish either the value of the truck which was involved in the accident, or the expenses which would have to be incurred in repairing it. We find no error in the judgment of the trial court in rejecting the reconvenor’s demand for damages against plaintiff.

The judgment appealed from is affirmed. The costs of this appeal are assessed to defendant-appellant.

AFFIRMED.


author: LEMMON, Judge.

text:
    Dalila T. CANGELOSI v. SCHWEGMANN BROTHERS GIANT SUPER MARKETS.
    No. 10625.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 10, 1980.
    Rehearing Denied Feb. 20, 1980.

      John P. Massicot and Frank A. Silvestri, New Orleans, for plaintiff-appellee.
    C. Monk Simons, III, New Orleans, for defendant-appellant.
    Before SAMUEL, LEMMON and GU-LOTTA, JJ.
   LEMMON, Judge.

This is a tort suit for damages allegedly caused by defamation and invasion of plaintiff’s privacy in connection with defendant’s investigation of an incident which occurred when plaintiff was a cashier in defendant’s supermarket. Defendant has appealed from a judgment awarding plaintiff damages after a jury trial.

Plaintiff, employed by defendant as a cashier for seven years, had a previously unblemished work record. On June 22, 1977 a customer, Mrs. Frances Navis, cashed a check for $37.02 at plaintiff’s check-out counter in connection with a purchase. When Mrs. Navis eventually informed defendant’s store manager (Nagel) that the check had been altered to $57.02, the manager notified the corporation’s check cashing supervisor (Miranda), and an investigation was begun.

Shortly thereafter Miranda and Nagel called plaintiff into the store’s vault room (the place where the checks are cashed) to a meeting also attended by the vault room supervisor (Mrs. White) and plaintiff’s supervisor (Mrs. Couture) and assistant supervisor (Mrs. Rareshide). According to plaintiff’s version, they showed her a picture of Mrs. Navis and the check (taken as part of the check cashing process), and she stated she had seen that person shopping in the store on previous occasions. They then inquired about the color ink shé used the day the check was cashed and asked her if she had altered the check. She began crying' and requested a lie detector test. Because she was emotionally distraught, she ran to the rest room and while there told other employees she had been accused of stealing. Mrs. Couture telephoned her daughter, who immediately came for her and brought her ■home. She worked several more days and took a lie detector test, but was fired one week after the incident in the vault room, although the test results were favorable. The sum of $20.00 was deducted from her final paycheck.

The version related by defendant’s employees was that they simply showed plaintiff the check and photograph, whereupon she became hysterical, even though they assured her she was not being accused. They further testified plaintiff subsequently stated she intended to resign after she completed the lie detector test she had requested to clear her name, but later declined to do so, because she learned she would be disqualified for unemployment compensation, and she was ultimately terminated.

The jury apparently accepted plaintiff’s version of the occurrence and clearly believed she had not altered the check. Nevertheless, even if all evidence most favorable to the prevailing party is accepted in accordance with standards for appellate review, there is no basis in this record for imposing delictual liability on defendant.

When an alteration is made to a check received by a store owner’s employee in the regular course of business, the employer is certainly entitled to investigate the circumstances surrounding the incident, as long as the investigation is conducted in good faith and in a reasonable manner. Here, there was a sufficient basis to justify defendant’s good faith in provoking an investigation, and there is no evidence to suggest any unreasonableness in the investigation that was conducted. Even plaintiff admitted no one accused her of stealing or called her a thief. She was never arrested or charged with a crime. The brief questioning was conducted at a reasonable time and place, and there was no oppressive questioning that might be viewed as intimidation or harassment constituting intentional infliction of mental anguish. There was no proof of a statement communicated to third persons which might constitute defamation. There was no revelation by defendant’s supervisory employees that an investigation was being conducted. In short there is simply no factual basis in this record to support a finding of tortuous conduct by any person for whom defendant was vicariously liable. Since there was no basis to support the jury verdict, the judgment must be reversed.

Accordingly, the judgment of the trial court is reversed, and it is now ordered that judgment be rendered dismissing plaintiff’s suit.

REVERSED AND RENDERED.

      . Plaintiff made the sole communication shown by the record as to the existence of an investigation. Moreover, she was the one who requested a lie detector test.

      . The record does suggest the possibility of a claim for wages withheld upon termination, but no such claim was presented in this suit, and it would be unfair to adjudicate that claim here, without allowing defendant notice and an opportunity to defend.


author: GULOTTA, Judge.

text:
    BOARD OF COMMISSIONERS OF the PORT OF NEW ORLEANS v. ILLINOIS CENTRAL GULF RAILROAD COMPANY.
    No. 10638.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 10, 1980.
    Writ Refused Feb. 22, 1980.

      Phelps, Dunbar, Marks, Claverie & Sims, Eugene R. Preaus, Danny G. Shaw, New Orleans, for plaintiff-appellee.
    Dillon & Cambre, Gerard M. Dillon, New Orleans, for defendant-appellant.
    Before SAMUEL, LEMMON and GU-LOTTA, JJ.
   GULOTTA, Judge.

The Illinois Central Gulf Railroad Company (the Railroad) appeals from a judgment awarding to the Board of Commissioners of the Port of New Orleans (the Dock Board) $12,509.71 for the cost of replacing the Dock Board’s sewer line which runs alongside defendant’s railroad track. The sewer line was damaged when the Railroad raised the grade level of the track on a site subject to a servitude in favor of the Railroad. We affirm.

In 1972 the Railroad and the Dock Board confected an agreement in which the Railroad, in consideration of the Dock Board’s granting it the exclusive right to perform switching services to the dock, agreed to provide and maintain all trackage necessary for this service. Pursuant to that agreement, in 1973 the Dock Board granted a servitude to the Railroad for the construction, reconstruction, operation, inspection, and maintenance of railroad tracks in the vicinity of the Milan Street Wharf. The Dock Board also agreed not to place, or to permit others to place, any structures or obstructions closer than eight and one-half feet from the center line of each track or twenty-two feet above each track, without the written consent of the Railroad. At some time subsequent to the granting of the servitude, however, the Dock Board installed a plastic sewer line approximately one foot beneath the surface of the asphalt covering the area, running approximately twelve to eighteen inches from the end of the cross-ties, adjacent to and outside the track.

In response to the Dock Board’s request, in May 1977, the Railroad agreed to regrade the level of the track at the Milan Street Wharf. In June 1977, the Dock Board removed approximately fifteen hundred feet of surface asphalt prior to commencement of the Railroad’s portion of the work. Removal of the asphalt left about fifty feet of the sub-surface sewer line exposed intermittently along a one hundred fifty foot section parallel to the railroad tracks. Although each party claims the other caused the breaks in the pipe, it is clear that the damage to the line was caused by the Railroad. In regrading the track, the Railroad used an electromatic tamping machine. The electromatic tamper stands on outriggers which extend outside and along the track and press down when the track is lifted by the machine. Each outrigger has a foot approximately three to four inches wide and two to three inches long. In this case, the outrigger feet rested on top of the sewer line and, when the machine pressed down while operating, the feet punctured the plastic pipe in numerous places.

Several Dock Board employees, present during this operation, testified they called the attention of the Railroad crew foreman to the damage being done to the pipe. The Railroad crew nonetheless continued to break the pipe. The crew foreman admitted that he could see the exposed sewer line in places, and admitted he was aware that when the tamping machine operated, the foot rested on the plastic pipe. He and other members of the Railroad crew testified they attempted to bridge the pipe with timbers to avoid breaking it; when the attempts were unsuccessful, however, they continued work despite the damage being done to the pipe.

The Railroad division engineer admitted that the Railroad had been furnished in advance with drawings showing the eight-inch sewer line in close proximity to the railroad track. He acknowledged that the track could have been elevated by using an alternate method, old-fashioned hand jacks, to avoid damage to the sewer line. The record is vague as to the comparative cost of using the tamping machine versus the hand jacks; it appears, nonetheless, that the approximate costs were not substantially different. Certainly, as far as we can infer from the indeterminate evidence on this point, performing the operation by hand would have cost perhaps $180.00 more than using the machine, as opposed to an ultimate cost in excess of $12,000.00 to replace the damaged pipe.

It is undisputed on appeal that the sewer line was located within eight and one-half feet of the center line of the track. The Railroad contends the Dock Board violated the servitude’s restrictions by locating the sewer line within the boundary of the servitude. The Railroad argues this was a material obstruction placed on the servitude tract by the owner of the servient estate that impedes exercise of the servitude, and therefore that the Railroad, as owner of the servitude, is under no duty to avoid injuring the obstructing property. The Dock Board, on the other hand, asserts that if an encroachment existed it was not a “material” obstruction “wholly incompatible” with the servitude. Alternatively, the Dock Board contends that if the encroachment was material and wholly incompatible, the Railroad is nonetheless responsible for the cost of replacement because it wantonly and willfully destroyed the pipe, when a reasonable alternate method for performing the maintenance was available.

In his oral reasons for judgment, the trial judge concluded that, despite admonitions by Dock Board representatives regarding destruction to the pipe, the Railroad crew deliberately continued with the work resulting in breakage of the sewer pipe. The judge specifically rejected testimony of railroad employees who stated that the pipe breakage occurred when the Dock Board removed the asphalt. He found that the Railroad employees had knowledge of the existence of damage “at the time' that the work was being done.”

It is clear that the location of the sewer line constituted a material obstruction and was wholly incompatible with the maintenance duties of the Railroad under the servitude agreement. Nevertheless, the Railroad cannot be exonerated from responsibility for damage its crew caused to the sewer line, because they were aware and acknowledged that the continued operation of the tamping machine was causing extensive damage to the line.

Although a servitude in favor of a public railroad is a limited personal servitude rather than a predial servitude, it is regulated by the rules governing usufruct and predial servitudes, applied by analogy. LSA-C.C. article 645; Farrell v. Hodges Stock Yards, Inc., 343 So.2d 1364 (La.1977).

Civil Code article 748 (formerly article 777) states, in pertinent part, that the owner of a servient estate may do nothing tending to diminish or make inconvenient the use of the servitude. However, Civil Code article 745 (formerly article 774) provides,

“The owner of the dominant estate has the right to enter with his workmen and equipment into the part of the servient estate that is needed for the construction or repair of works required for the use and preservation of the servitude. He may deposit materials to be used for the works and the debris that may result, under the obligation of causing the least possible damage and of removing them as soon as possible.”

While the Dock Board made use of the servitude inconvenient and interfered with the Railroad’s maintenance responsibility, the Railroad violated its duty to cause the least possible damage to the servient estate. An alternate method of elevating and grading the tracks could have been used at a comparatively minimal expense to the Railroad.

When we compare the extent of monetary damage of the Dock Board’s pipe to the additional expense for the Railroad to use an alternate method which would have prevented damage to the pipe, we conclude the trial judge properly rendered judgment in the Dock Board’s favor. The following language from Duet v. Louisiana Power and Light Company, 169 F.Supp. 184 (E.D.La.1958), best describes the basis of the trial court’s conclusion in this case. In Duet, the U. S. District Court stated:

“It is settled in Louisiana, as elsewhere, that one having an easement or servitude on another’s land is bound to use that easement or servitude in such manner as not unreasonably to injure the right of the owner of the servient estate, and that if the owner of the easement or servitude uses it in a negligent, unauthorized or unreasonable manner, the owner of the servient estate may maintain an action for damages resulting from such use . The obligation of the owner of the servitude is not to cause no damage, but to cause ‘the least possible damage’.” 169 F.Supp. at 186.

We conclude the record supports the factual conclusions of the trial judge. We find further that the Railroad, as owner of the servitude, violated its obligation to cause the least possible damage to the servient estate. Accordingly, we affirm the judgment of the district court.

AFFIRMED.


text:
    NEW ORLEANS PUBLIC SERVICE, INC. v. Robert DELANEY.
    No. 10643.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 10, 1980.
    Chaffe, McCall, Phillips, Toler & Sarpy, Gregory C. Thomas, New Orleans, for plaintiff-appellant.
    George J. Dowd, Chalmette, for defendant-appellee.
    Before SAMUEL, LEMMON and GU-LOTTA, JJ.
   LEMMON, Judge.

This is a suit by a public utility against a customer to recover payment for consumption of electricity during a three-year period in which the usage registered on the meter was allegedly inaccurate because a device called a “jumper” had been installed on the meter. After a trial on the merits the suit was dismissed on the basis plaintiff failed to prove defendant had installed the jumper. Plaintiff’s appeal raises the issue of what amount, if any, defendant is liable for in excess of that originally billed and paid.

I

On July 14, 1976 plaintiff’s employee discovered a jumper on the meter which measured electricity furnished to defendant’s single family residence. The meter and jumper were immediately removed, and a new meter was installed.

Plaintiff’s meter tampering expert explained that a jumper is a metallic object placed on the electrical line between the line side and the load side of the meter for the purpose of diverting unmeasured electricity around the measuring device, so that the meter reading would reflect less than the actual consumption of electricity. Upon testing the particular device, the expert found it diverted up to 70% of the load.

Another meter tampering expert, analyzing the company’s eight-year billing records for defendant’s residence, noted that consumption had dropped dramatically beginning in August, 1973 and had increased dramatically in August, 1976, when the jumper was discovered and removed. This expert therefore opined that the jumper had been installed in August, 1973. Further noting that the fluctuations over the entire billing history would be within normal limits if the meter readings during the suspect period were doubled, he suggested that approximately 50% of the electricity provided to the house from August, 1973 to August, 1976 had been diverted and had not registered on the meter. The total value of this estimated amount of diverted electricity was $1,274.16.

II

The trial court erred in requiring proof that defendant had installed the jumper as an essential element of plaintiff’s evidence. This action is one to recover payment for electricity provided by plaintiff and used by defendant, and plaintiff simply had to prove, by a preponderance of the evidence, the amount' of electricity used during the relevant period in order to recover the balance due by the customer in excess of the amount billed and paid. The identity of the person who installed the jumper is not a relevant fact in determining the amount of electricity used. Louisiana Power & Light Co. v. Bourgeois, 355 So.2d 597 (La.App. 4th Cir. 1978).

Plaintiff’s burden of proof by a preponderance of the evidence is successfully borne when the direct and circumstantial evidence, taken as a whole, shows that the fact or causation sought to be proved is more probable than not. Jordan v. Travelers Ins. Co., 245 So.2d 151 (La.1971). In the present case the overall evidence strongly suggests that a significant amount of electricity was diverted by the jumper found attached to the meter, causing a discrepancy between the amount actually used and the amount registered. No other conclusion is equally plausible or likely, and no other explanation can as reasonably be ascribed. Boudreaux v. American Ins. Co., 264 So.2d 621 (La.1972). Therefore, no matter who installed the jumper, defendant’s usage of electricity for that period had not been paid for in full. Furthermore, the overall evidence preponderantly established that the billing for the period from August, 1973 to August, 1976 was approximately 50% lower than the actual amount of electricity furnished and used during that period.

Accordingly, the judgment of the trial court is reversed, and it is now ordered that judgment be rendered in favor of plaintiff in the amount of $1,274.16, plus legal interest as prayed for and all costs in both courts.

REVERSED AND RENDERED.

      . The jumper was discovered by a meter reader who noticed the broken seal. When asked why the broken seal had not been reported before if the jumper had been in place for three years, the expert explained the utility company, realizing meter jumping was a serious problem, began implementing a program in 1971 to eliminate the practice, but was delayed by a manpower shortage. Resealing of the City’s 200,-000 meters was begun in 1975, section by section. The program was finally extended into defendant’s section of the City in August, 1976, and the jumper was discovered immediately.

      . Kilowatt hour readings each month, as shown by the billing records for 1971 through 1978, are tabulated as follows, the first column showing the average monthly readings exclusive of the suspect period, the second column showing the average monthly readings during the suspect period, and the third column showing the percentage difference representing the reduction:
      I II III
      January 1027 325 68%
      February 1022 399
      March 1164 642 45%
      April 1944 1193 39%
      May 3180 1950 39%
      June 4638 2588
      July 3270 2313
      August 3714 2655
      September 2994 1616 46%
      October 1418 889 37%
      November 1105 483 56%
      December 1236 322 74%


text:
    Mr. and Mrs. Fred S. BOWES v. FOX-STANLEY PHOTO PRODUCTS, INC.
    No. 10644.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 10, 1980.
    Rehearing Denied Feb. 20, 1980.

      Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Claude D. Vasser, Me-tairie, for plaintiffs-appellants.
    McGlinehey, Stafford, Mintz & Hoffman, Frederick R. Campbell, Wayne J. Fontana, New Orleans, for defendant-appellee.
    Before SAMUEL, LEMMON and GU-LOTTA, JJ.
   GULOTTA, Judge.

Plaintiffs appeal from a summary judgment dismissing their suit for pecuniary and non-pecuniary damages resulting from the loss of a roll of plaintiffs’ film placed in defendant’s custody for processing. The film contained photographs of wine vineyards in Bordeaux, France, taken while plaintiffs (who are wine enthusiasts and connoisseurs) were traveling on vacation in Europe.

As a pecuniary loss, plaintiffs claim reimbursement of the expenses of their European vacation. As a non-pecuniary loss, they claim damages for deprivation, of gratification of intellectual enjoyment in seeing the photographs and in showing them to friends and fellow wine enthusiasts. The plaintiffs contend the trial judge erred when he concluded, in his reasons for judgment, that defendant could not be liable for non-pecuniary losses because plaintiffs did not advise or notify defendant of the value of the photographs taken on the film. The judge concluded plaintiffs could not recover because defendant had no knowledge and was not notified by plaintiffs that the photographs were the object of intellectual enjoyment.

Relying on LSA-C.C. article 2769, plaintiffs contend that because Fox accepted the film for processing for a fee but lost the valuable photographs, Fox failed to comply with the contract. As a result, plaintiffs claim, they are entitled to damages under LSA-C.C. article 1934(3). Plaintiffs also dispute defendant’s claim that Fox’s liability was limited by the disclaimer of warranty for lost film printed on the customer’s receipt.

We agree that the limitation of liability included in the customer’s receipt will not exonerate defendant from liability in the instant case. Defendant has not filed any affidavits or other documents which indicate that the limitation of liability was explained or brought to Mrs. Bowes’ attention. Under these circumstances, she was justified in believing the slip of paper was nothing more than a receipt for film deposited with defendant for processing. Lacking specific knowledge of the disclaimer, plaintiffs are not bound by the limitation of liability. See Lawes v. New Orleans Transfer Company, 11 La.App. 170, 123 So. 145 (1929); Marine Ins. Co. v. Rehm, 177 So. 79 (Orl.La.App.1937).

We conclude, as did the trial judge, that because plaintiffs did not notify defendant of the extraordinary value of the photographs on the roll of film, plaintiffs are not entitled to recover nonpecuniary damages. A debtor who has not been guilty of fraud or bad faith is liable only for such damages “as were contemplated, or may reasonably be supposed to have entered into the contemplation of the parties at the time of the contract.” LSA-C.C. art. 1934(1). In Meador v. Toyota of Jefferson, Inc., 332 So.2d 433 (La.1976), the Supreme Court denied recovery of non-pecuniary damages for the loss of intellectual enjoyment. The Meador court found that the principal object of the contract for the repair of an automobile, “evident to defendant at the time the contract was entered into,” was repair of that automobile. 332 So.2d at 437. The court concluded that Meador was not entitled to recover damages for aggravation, distress and inconvenience caused by the five-month loss of use of her automobile, “because the procuring of intellectual enjoyment, while perhaps an incidental or inferred contemplation of the contracting parties, was not a principal object of the contract to have the car repaired.” 332 So.2d at 437.

In the instant case, absent any notification by plaintiff of the extraordinary value of the film to be processed, defendant Pox could neither contemplate nor foresee damages resulting from the deprivation of gratification of intellectual enjoyment. See Galloway v. Tenneco Oil Company, Frees & Laine v. Vollmer & Co., and Plaisance v. Dutton, supra, note 5. The principal object of the contract in this case was not the gratification of intellectual enjoyment, but rather the physical processing of the film. The plaintiffs are not entitled to non-pecuniary damages, and the trial judge properly granted the summary judgment in favor of defendant to that extent.

We do not say that photographs commemorating special occasions or extraordinary events cannot be the objects of intellectual enjoyment. In order for a plaintiff to be recompensed in damages for the loss of such photographs, however, a defendant film processor must be apprised of the value of objects which are the subject of processing.

We distinguish the case of Grather v. Tipery Studios, Inc., 334 So.2d 758 (La.App. 4th Cir. 1976), where we allowed damage for the deprivation of intellectual gratification regarding photographs taken by Tipery Studios. In the Grather case, we concluded that the less-than-professional- photographs taken by Tipery deprived the plaintiffs of the enjoyment of photographs commemorating a wedding. The obvious distinguishing facts between the Grather case and the instant one is that in Grather, the plaintiff contracted with defendant to take the photographs as well as to process them; in the instant case the contract was solely for processing of photographs taken by plaintiffs.

Regarding pecuniary damages, however, we reverse and remand. Defendant acknowledged the loss of plaintiffs’ roll of film, and offered them an unexposed roll in return for that loss. This position, which acknowledges plaintiffs’ entitlement to a judgment, is incompatible with summary judgment, because the trial judge dismissed plaintiffs’ suit in toto. Plaintiffs must be given an opportunity to establish their claim, and to prove pecuniary losses, if any, resulting from defendant’s action.

Accordingly, we affirm that part of the judgment which dismisses plaintiffs’ claim for non-pecuniary losses. We reverse that part of the judgment which dismisses the claim for pecuniary losses. The matter is remanded to the trial court for further proceedings consistent with the foregoing.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

LEMMON, Judge,

concurs and assigns reasons.

Plaintiffs are undoubtedly entitled to recover, in tort or in contract, the damages occasioned by defendant’s loss of the property placed by plaintiffs in defendant’s care. The only question is the measure of those damages, and the summary judgment decreeing that plaintiffs are entitled to no damages whatsoever must be reversed.

Since plaintiffs are entitled to some of the items of damages which are claimed, it is preferable in my opinion simply to reverse the summary judgment and to reinstate the suit for trial, rather than to proceed to determine, without a trial on the merits, which items are recoverable and which items are not. In order to avoid piecemeal litigation and a multiplicity of appeals, the appellate courts have fashioned a rule, in reviewing judgments maintaining an exception of no cause of action, that when a petition states a cause of action as to any portion of the demand based on a particular set of facts, the exception should be overruled and the entire case tried on the merits. See, for example, Hero Lands Co. v. Texaco, Inc., 310 So.2d 93 (La.1975). The same rationale should be applied to motions for summary judgment.

When (as in this case) the plaintiffs are entitled to a portion of their demand based on a particular set of facts, and there is no undue burden or expense in submitting the entire demand to trial on the merits, the motion for summary judgment should be denied in order to avoid piecemeal appeals and a multiplicity of suits. If the trial judge believes that one or more particular items of damages are not recoverable, he may exclude evidence as to these items, and the evidence can then be presented as a proffer in order to complete the record. The entire matter can then be reviewed at one time in one appeal.

In my opinion the preferable disposition of this appeal is simply to reverse the summary judgment and to remand the case for further proceedings. But since the case is remanded for trial in part and since evidence as to other items of damage may be offered as a proffer, I simply concur in the result.

LEMMON, Judge, votes to grant the application of plaintiffs for rehearing and assigns reasons.

I would grant plaintiffs’ application for rehearing and reverse the judgment entirely so that plaintiffs do not have to apply for certiorari at this time as to the denials of some items of damages. There is no compelling reason in this case why the entire claim should not be presented for review at one time both to this court and to the Supreme Court.

      . In deposition Mrs. Bowes testified that she delivered films to Fox for processing but that she did not explain or tell the Fox employee that the photographs taken on the trip were valuable objects taken by them in connection with their travel to famous European wine vineyards.

      . LSA-C.C. art. 2769 reads as follows:

        “Art. 2769. Contractor’s liability for noncompliance with contract.

      If an undertaker fails to do the work he has contracted to do, or if he does not execute it in the manner and at the time he has agreed to do it, he shall be liable in damages for the losses that may ensue from his non-compliance with his contract.”

      . LSA-C.C. art. 1934(3) reads as follows:
      “Although the general rule is, that damages are the amount of the loss the creditor has sustained, or of the gain of which he has been deprived, yet there are cases in which damages may be assessed without calculating altogether on the pecuniary loss, or the privation of pecuniary gain to the party. Where the contract has for its object the gratification of some intellectual enjoyment, whether in religion, morality or taste, or some convenience or other legal gratification, although these are not appreciated in money by the parties, yet damages are due for their breach; a contract for a religious or charitable foundation, a promise of marriage, or an engagement for a work of some of the fíne arts, are objects and examples of this rule.
      In the assessment of damages under this rule, as well as in cases of offenses, quasi offenses, and quasi contracts, much discretion must be left to the judge or jury, while in other cases they have none, but are bound to give such damages under the above rules as will fully indemnify the creditor, whenever the contract has been broken by the fault, negligence, fraud or bad faith of the debtor.”

      .The customer’s receipt received by plaintiff included the following language:
      “The sending of exposed film to us for any purpose will constitute an agreement that if the film is damaged or lost by us, or any subsidiary company, we may replace it with an equivalent amount of unexposed film and that, except for such replacement the handling of exposed film by us for any purpose is without warranty or other liability of any kind.”

      . See also LSA-C.C. art. 1943; Galloway v. Tenneco Oil Company, 313 So.2d 317 (La.App. 4th Cir. 1975), writs refused, 318 So.2d 42; Plaisance v. Dutton, 336 So.2d 1034 (La.App. 2nd Cir. 1976); Frees & Laine v. C. W. Vollmer & Co., 78 So.2d 187 (Orl.La.App.1955).


author: GARRISON, Judge.

text:
    Arthur Francis FACIANE v. Norbert GREEN, Veronica Green and Gulf Insurance Company.
    No. 10649.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 10, 1980.

      John J. Cummings, III, Gregory F. Gam-bel, Bienvenue, Foster, Ryan & O’Bannon, Robert N. Ryan, William L. Brockman, New Orleans, for defendant-appellant.
    Porteous, Toledano, Hainkel & Johnson, James S. Thompson, Montgomery, Barnett, Brown & Read, Wood Brown, III, New Orleans, for plaintiffs-appellees.
    Before GARRISON, CHEHARDY and STOULIG, JJ.
   GARRISON, Judge.

This case arises out of a collision which occurred on August 4, 1976 between a left-turning automobile and an overtaking and overpassing motorcycle at the intersection of Elm Street and Louisiana Highway 18 (River Road) in the city of Hahnville, Parish of St. Charles. Mr. Faciane filed suit seeking recovery for personal injury and property damage. Mrs. Green answered through her insurer and then reconvened through private counsel. The reconventional demand was answered by Mr. Faciane’s insurer. Subsequent to trial, the district court rendered judgment dismissing both the original and reconventional demands on the grounds that both parties were negligent and the negligence of each was a proximate cause of the accident. Mrs. Green appealed from that judgment which we affirm.

The trial judge stated the following findings of fact in his written reasons for judgment:

“The uncontroverted facts are that defendant, Green was the lead car in a four or five vehicle group proceeding upstream on La. 18. She slowed her vehicle when nearing the junction of Elm Street and La. 18 and almost came to a stop preparatory to turning left onto Elm Street. The three or four vehicles immediately to the rear of the Green vehicle also slowed and their brake lights came on. Ms. Becnel in the rear vehicle of the group could not see the Green vehicle at the front of the line of cars, only the slowing speed of the cars and their brake lights caused her to slow, causing her to brake her car and almost come to a stop.
The final uncontroverted fact is that Ms. Green started her left turn and while in the left, or downstream, lane of La. 18 her vehicle was struck by the overtaking cycle of plaintiff as he attempted to pass the four or five vehicles that had slowed speed in the right lane.
“Plaintiff, Faciane, testified that he saw brake lights on the cars ahead. The cars ahead had decreased their speed. He saw no obstruction ahead and he pulled into the left lane to pass the cars. He passed the rear car and the cars in the right lane stopped and he could not get back into the right lane. Although he saw the brake lights on each of the cars in the line as he approached them, he could not see the signals on the Green vehicle when he pulled into the left lane. He was two car lengths away from the Green vehicle when she started her turn. He blew his horn and had his headlight turned on.
“Defendant, Green, testified that she put-her left turn signal on when about one block from Elm Street. She looked in the rear-view mirror and saw the vehicles behind her. When about one-half block from Elm Street she looked in the rear-view and side mirrors; then a split second before making the left turn she looked in the rear-view and side mirrors. She did not see the motorcycle until it hit her.
“Ms. Becnel testified that she could not see the Green vehicle as she followed the slowing line of vehicles behind the Green vehicle; that as the cars in front of her slowed down she slowed down and looked in her rear-view mirror. She saw plaintiff approaching at a very fast speed when he was a block behind her; that the cycle whipped around her vehicle into the left lane. She heard no horn from the cycle nor did she remember seeing a headlight.”

On appeal Mrs. Green argued that the trial court erred in holding that she was negligent. We do not agree. A motorist making a left turn must meet a high standard of care in the execution of that turn,

including a proper observation of the rear for passing traffic, immediately prior to the commencement of the turn. Morgan v. Liberty Mutual Casualty Co., 317 So.2d 7 (La.App. 1st, 1975). Before a motorist may execute a left turn, she must first ascertain that the turn can be made without endangering other motorists. Tallo v. Johnson, 255 So.2d 446 (La.App. 1st, 1971). A review of the record of this proceeding convinces us that Mrs. Green failed to meet the high standard of care which was required.

Mr. Faciane argues on appeal that the trial court erred in failing to apply the doctrine of last clear chance. Once again, we do not agree. A review of the record convinces us that Mrs. Green did not have a chance to avoid the accident when the time, distance, and vehicle control are considered. Accordingly, the judgment of the trial court is affirmed.

AFFIRMED.


text:
    Mrs. Jewel Buckel, Wife of/and John E. BUCKEL v. MAISON BLANCHE CORPORATION, Otis Elevator Company and Travelers Insurance Company.
    No. 10651.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 10, 1980.
    Rehearing Denied Feb. 20, 1980.

      Sessions, Fishman, Rosenson, Snellings & Boisfontaine, James Ryan, III, Annabelle H. Walker, New Orleans, for plaintiffs-appellants.
    James J. Morse, Julian G. Baudier, Jr., New Orleans, for Maison Blanche Corporation and Travelers Insurance Company, defendants-appellees.
    Drury & Lozes, James H. Drury, New Orleans, for Otis Elevator Company, defendant-appellee.
    Before GARRISON, CHEHARDY and STOULIG, JJ.
   CHEHARDY, Judge.

Plaintiffs, Jewel and John Buckel, have appealed a judgment dismissing their suit for general and special damages allegedly sustained by Mrs. Buckel and the Buckel community, respectively, as the result of an ankle twisting incident on the escalator of Maison Blanche department store. Named defendants were Maison Blanche Corporation, its public liability insurer, Travelers Insurance Company, and the escalator manufacturer, Otis Elevator Company.

On December 27, 1976, Mrs. Buckel was standing on an ascending escalator at a point midway between the first and second floors when the incident happened. Her petition alleges these facts:

“One of the shoes worn by petitioner, Jewel Buckel, jammed in the escalator causing petitioner to fall and violently strike the floor with the resulting injuries herein sued upon.”

Her testimony is totally different. She stated she felt like something grabbed the heel of her left shoe causing her knee to bend inward; her sandal broke and she walked off the escalator on the second floor; she did not fall; her shoe did not become jammed in the escalator; she felt no unusual motion when the incident happened; and she heard no noise that would indicate the escalator itself was malfunctioning.

Plaintiff Mrs. Buckel has not sustained her burden of proof. In Cannon v. Holmes, 274 So.2d 799 (La.App. 4th Cir. 1973), writ refused, this court recognized that the store proprietor owes escalator passengers a high duty of care, similar to that imposed on common carriers toward their passengers. An injury on an escalator however does not automatically invoke application of the res ipsa loquitur rule. The Cannon opinion explained that before the burden of proof shifts to the store owner to exculpate himself from negligence, the plaintiff must first prove the occurrence of some unusual incident. See Vallette v. Maison Blanche Co., 29 So.2d 528 (La.App.Orl.1947).

Because plaintiff is unable to state what happened and affirmatively establishes there was nothing to indicate a problem with the escalator, we affirm the result reached by the trial court.

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

AFFIRMED.


text:
    Mildred DELANEUVILLE et al. v. RESERVE TELEPHONE COMPANY et al.
    No. 10654.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 10, 1980.
    Daniel E. Becnel, Jr., Reserve, for plaintiffs-appellants.
    Dillon & Cambre, David M. Cambre, New Orleans, for defendants-appellees.
    Before GARRISON, CHEHARDY and STOULIG, JJ.
   GARRISON, Judge.

Plaintiff filed this action seeking damages for an alleged interference with a natural predial servitude of drain arising from the situation of estates and the natural flow of surface waters as mandated by C.C. Art. 655, as revised by Acts of 1977, No. 514 § 1, formerly numbered 660. Plaintiff claimed that the defendant elevated its estate approximately two feet which caused the natural flow of water to reverse and flood her estate. At trial, the district court granted defendant’s motion for a directed verdict dismissing plaintiff’s case. From that judgment which we now affirm, the plaintiff appealed.

If Mrs. Delaneuville had carried her burden of proof in showing that a natural servitude of drain had previously existed in her favor, then she would be entitled to relief under Art. 655. Plaintiff, however, failed to establish that a servitude of drain had ever existed in her favor. In fact, plaintiff’s own witnesses indicated that Mrs. Delaneuville’s property was subject to general flooding some 40 years prior to the acquisition of the neighboring estate by Reserve Telephone Co. Accordingly, the trial judge properly granted defendant’s motion for a directed verdict and the judgment is affirmed.

AFFIRMED.


text:
    Shelly Blake, Wife of/and Lawrence J. ERNST v. H. H. BURSTEIN ENTERPRISES, INC., and Bel Air Development Corporation.
    No. 10659.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 10, 1980.
    Rehearing Denied Feb. 20, 1980.
    Satterlee, Mestayer & Freeman, A. D. Freeman, New Orleans, for plaintiffs-appel-lees.
    Faris, Ellis, Cutrone, Gilmore & Lauten-schlaeger, Camille A. Cutrone, New Orleans, for defendants-appellants.
    Before GARRISON, CHEHARDY and STOULIG, JJ.
   CHEHARDY, Judge.

Plaintiffs, Mr. and Mrs. Lawrence Ernst, purchased a lot in Tall Timbers Subdivision in the City of New Orleans and had an architecturally designed home built. Some time later, defendant corporations, H. H. Burstein Enterprises, Inc., and Bel Air Development Corporation, constructed for resale two residences on lots which partially abut the Ernst tract on the rear property line. Mr. and Mrs. H. H. Burstein own all the stock in both corporations. In filling these lots an 18-inch differential was created between the level of Burstein and that of Ernst where the properties meet, thus causing a water flow problem on the lower Ernst tract.

In this suit plaintiffs sought reimbursement for expenditures they made in an attempt to remedy the problem, damages for lost flowers, and for loss of use and enjoyment because of the problem. Further, they prayed for an order requiring Burstein to build a retaining wall across the rear of the two lots that abut the Ernst property.

The trial court rendered judgment awarding Mr. and Mrs. Ernst $1,500 each damages for loss of enjoyment of their property and annoyance and ordered construction of the retaining wall requested by plaintiffs in accordance with specifications made by an engineer who appeared as an expert on plaintiffs’ behalf. The trial judge denied the other damages because he concluded plaintiffs failed to adequately prove causation. Only defendants have appealed.

The questions before us are whether the trial court properly concluded as a matter of fact that Burstein used his property in such a manner as to create a drainage problem to plaintiffs; and, if we answer this affirmatively, are they entitled to the relief granted?

From the lay and expert testimony in the record, without delineating the contested areas, we make these factual conclusions: Lawrence and Shelly Ernst bought a lot in Tall Timbers when there were no other houses constructed in the square where they ultimately built; at this time there was no significant difference in the level of their lot and the properties abutting their rear property line; the Ernst home fronts on Pin Oak Avenue and the Burstein properties front on Inwood Avenue with Pin Oak and Inwood being parallel boundaries of the common square in which the tracts or lots involved are situated; the City of New Orleans building regulations establish a slab must be a minimum of 18 inches above the curb grade; the Ernst home has an elevation of 3.76 feet and the Burstein properties have an elevation varying between 5 and 5.20 feet; at the rear property line on the Ernst tract the elevation between plaintiffs’ and Burstein’s land is between 1.24 and 1.67 feet higher on the defendants’ side; Bur-stein created the lopsided terrain by filling his lot to an average 18-inch level above that of the plaintiffs; the engineering division of the Department of Streets of the City of New Orleans ordered Burstein to correct this condition to no avail; and the Ernsts have been annoyed and aggravated with this flow of water from the Burstein lots for many years.

The evidence further establishes that Ernst tried to correct the problem by building a fence along the property line with a concrete footing and this relieved the problem until a Mr. Thoes bought the property behind him and installed a cinder block wall along his rear property line to level out his lot. Of course in raising the level of the rear abutting lot in this manner, the water again began to drain on the Ernst property because the retaining wall built by Ernst was lower than the concrete block installation of Thoes.

Based on these facts the trial court concluded the water flow complained of by plaintiffs did in fact exist and had been caused by Burstein filling his lot to a higher level. The court also found that Ernst did not create or contribute to the problem by building his house at an elevation that was too low.

Our review of the factual finding of the trial court is limited to an inquiry as to whether the result reached was clearly wrong. Arceneaux v. Domingue, La., 365 So.2d 1330 (1978); and Canter v. Koehring Company, La., 283 So.2d 716 (1973). In this case we conclude there is no manifest error in the factual conclusion reached by the trial judge.

This then brings us to a consideration of what liability the law imposes on the defendants. C.C. art. 667 provides the owner of land may do on his estate whatever he pleases subject to the limitation that he cannot cause his neighbor damage in so doing. C.C. art. 668 states that the neighbor may be put to some inconvenience which, while annoying, does not actually damage the adjoining property.

In this case we are dealing with a situation that has both damaged and inconvenienced the complaining plaintiffs. Thus we find inapposite the cases cited by appellants to the effect that a mere inconvenience created by a neighbor is not compensable.

In Moreland v. Acadian Mobile Homes Park, Inc., 313 So.2d 877 (La.App.2d Cir. 1975), the court recognized that the neighbor who damages a plaintiff’s property may be assessed monetary damages and ordered to correct the offending condition where possible. In Moreland, as in this case, the court awarded $1,500 to each plaintiff for emotional distress. Considering the length of time plaintiffs have endured this situation and further that they have attempted to remedy it with no cooperation from defendants, we find the award nominal.

However, we find the main objective of plaintiffs’ suit is to remedy the situation once and for all time; thus that part of the judgment ordering the retaining wall constructed across the rear property line of the Burstein tracts accomplishes this purpose. In this connection we note that the present residents in the Inwood Avenue properties affected who derived titled by mesne conveyances from defendant Bel Air are willing to permit the necessary construction. Until the structure specified by the engineering expert to remedy the problem is erected, the damage to plaintiffs will continue. We conclude the judgment is proper.

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

AFFIRMED.


text:
    The FISK CORPORATION v. Terry McKENDREE.
    No. 10676.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 10, 1980.
    Rehearing Denied Feb. 20, 1980.
    Writ Refused March 21, 1980.
    Nicaud, Justrabo & Rousset, Alwyn J. Justrabo, New Orleans, for plaintiff-appellant.
    Jacob Kansas and Carey R. Varnado, New Orleans, for defendant-appellee.
    Before SAMUEL, LEMMON and GU-LOTTA, JJ.
   LEMMON, Judge.

This is a suit by a general insurance agency against an insurance broker, asserting defendant’s liability for payment of insurance premiums on two policies placed through plaintiff’s agency. Plaintiff has appealed from a judgment dismissing its suit after a trial on the merits.

The parties began their association in April, 1976, and defendant placed insurance for several customers through plaintiff’s agency. In May defendant contacted plaintiff concerning marine insurance for Louisiana Coastal Boat Service, Inc. (Coastal), a corporation owned by defendant’s cousin. After obtaining a survey and contacting numerous companies, plaintiff obtained coverage (effective in July), and the policy was received on July 19. The premium was higher than expected, and Coastal, with defendant’s intercession, requested a premium financing arrangement, which plaintiff arranged through its bank. Coastal paid 25% of the premium and executed a promissory note for the balance, payable to the bank. In accordance with the bank’s requirement plaintiff’s president endorsed the note, individually, and the bank with Coastal’s approval paid the loan proceeds to plaintiff, who then remitted to the insurancé company the premium due on the policy.

In the meantime defendant had gone into the securities business and on June 6 had notified plaintiff he would not be submitting any more business. He turned over his renewals and servicing of clients to plaintiff.

Coastal never made any monthly payments on the note, and plaintiff’s officer paid one payment in September and ultimately paid off the balance in November. Plaintiff further caused the policies to be cancelled and after giving credit for the return premium, obtained a judgment against Coastal. When collection efforts were unsuccessful, plaintiff filed this suit against the broker.

Plaintiff’s officers testified that defendant verbally agreed at the inception of their association to “be responsible for collection of the premium and remission of the premium through us” on each policy placed through the agency. Defendant denied any specific agreement on this point, but expert evidence established that brokers writing insurance through general agencies are responsible for the payment of the premiums due for that insurance.

Nevertheless, this record clearly establishes that the premiums on the insurance issued to Coastal were paid to plaintiff with the proceeds of Coastal’s bank loan and that plaintiff paid the premium to the insurer. The debt for insurance premiums due by Coastal, for which defendant was allegedly responsible as broker, was therefore extinguished by payment. The new debt concurrently created was owed by Coastal to the bank with plaintiff’s officer also responsible solely because he endorsed the note evidencing the debt. No basis has been shown, however, for any responsibility for the new debt on the part of defendant.

Perhaps plaintiff intended for defendant to be responsible for the loan whose proceeds were used to pay the insurance premiums, but plaintiff did not require defendant to endorse the note, or to execute a contract of indemnity as to plaintiff’s endorsement, or to execute an instrument promising to pay the debt of a third party (Coastal). Moreover, when the payments on the loan were not paid as they became due, plaintiff delayed until November 19, 1976 before requesting cancellation of the policy and obtaining return of the unused premium, when earlier cancellation could have avoided or minimized any loss resulting from Coastal’s failure to pay the loan installments.

Unfortunately for plaintiff, it was legally obligated to pay Coastal’s loan and thereby incurred a loss. Nevertheless, plaintiff has shown no basis for recovering this loss from defendant, and plaintiff must be relegated to seek recovery from Coastal, against whom it has already obtained a judgment.

The second claim involved a policy on which the premium was originally paid, but an additional $37.00 was charged when the company discovered special usage of the insured’s automobile. Defendant had left the insurance business by the time the additional amount was billed (and in fact was in training in New York), having notified plaintiff of his status and turned over his accounts. Under these circumstances defendant cannot be held liable for the insured’s failure to pay the additional premium, particularly since plaintiff handled the billing and could have avoided the loss by cancelling the policy for non-payment.

AFFIRMED.

      . A general agent is a party who deals directly with the insurance company represented by the agent. A broker is a party who supplies business to a general agent, who then forwards the business to the insurance company that issues the policy.

      . Plaintiffs expert described the customary financing agreement in which the bank, the insured and the insurance broker enter into a three-party contract without a note, with the bank having recourse against the broker in the event of default. The broker thus gets the benefit of the business and can protect himself against loss in case of non-payment by having the policy cancelled.