text:
    Alfred J. DOUCET, et al., Plaintiffs-Appellees, v. RYDER TRUCK RENTAL, INC., Defendant-Appellant.
    No. 8824.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1982.

      Brame, Bergstedt & Brame, Frank M. Brame, Lake Charles, for defendant-appellant.
    Nathan A. Cormie, Lake Charles, for plaintiff s-appellees.
    Before DOMENGEAUX, CUTRER and SWIFT, JJ.
   CUTRER, Judge.

This is an appeal from a jury verdict in favor of plaintiffs for damages sustained in a single vehicle accident which occurred as Brenda Doucet attempted to pass a truck.

The facts presented in this case are as follows:

On August 17, 1976, at 4:00 P.M., Brenda Gale Doucet was operating a pickup truck, proceeding east on Highway 10, a two-lane black-top highway, between Oakdale and Ville Platte. Riding with her was Francis Thompson.

While so proceeding, Brenda soon came upon an eighteen-wheel tractor-trailer driven by Ivan L. Gotreaux (Gotreaux), for defendant, Borden, Inc. The tractor-trailer had been leased from Ryder Truck Rental, Inc.

Brenda was traveling at approximately 50 miles per hour. She followed the tractor-trailer for about three minutes or about one or two miles. Brenda noticed that the truck had gone into the left (west) lane of the highway a few times as she approached it. As Brenda came up behind the truck, it was then proceeding straight within its lane. A car was traveling about two car lengths in front of the tractor-trailer.

At the point of the accident, the road was straight and visibility clear. The road surface was dry. Brenda began to pass the tractor-trailer by speeding up to approximately 55 miles per hour. Just as her vehicle’s front was about ten feet from the front of the trailer Gotreaux decided to pass the car in front of him.

Gotreaux activated his left-turn signal and looked into his rear view mirror; seeing nothing he began to enter the left lane. Brenda sounded her horn (Gotreaux denied hearing a horn) to no avail. Brenda then went off onto the left shoulder of the road and lost control of her vehicle. Gotreaux heard the sound of gravel hit his truck and saw Brenda’s truck half on the shoulder and road. He immediately applied his brakes. Brenda’s truck then passed in front of him, crossed the highway on the righthand side, struck four small trees in the ditch and ran up on a fifth tree which caused the truck to overturn onto its driver’s side. Gotreaux and a driver of another passing automobile pulled the two women from the wreck.

The injuries suffered by Brenda appeared, at first, to be insignificant; only a slight cut to the knee and bruises to the leg. However, she later suffered low back pains which have subsequently been diagnosed as a compression fracture of the L-4 vertebra with disc deterioration. (The extent of this injury will be discussed in our section “Quantum,” infra.)

Originally named as defendants to this suit were Ryder Truck Rentals, Inc., the lessor of the tractor-trailer; Borden, Inc.; G. B. Lowe, the distributor of Borden products; his employee and driver of the tractor-trailer, Ivan C. Gotreaux, and Sentry Insurance Company. Summary judgment was signed February 24, 1978, in favor of Ryder Truck Rentals, Inc. dismissing it from the suit at plaintiffs’ prejudice. Plaintiffs voluntarily dismissed Sentry Insurance Company without prejudice on September 13, 1979.

This suit was tried by a jury. The jury found: Gotreaux to be negligent and the proximate cause of the accident; Brenda free of negligence and her damages to be $50,000.00 along with $366.00 which was stipulated to be the loss suffered by her father, Alfred Doucet ($216.00 rental car expense, $50.00 wrecker fee, $100.00 deductible on his insurance which covered the truck). From this adverse judgment, defendants filed a suspensive and/or devolu-tive appeal alleging various errors. Plaintiffs answered the appeal seeking an increase in the award of damages.

Defendants appeal, urging the following errors:

(1) The jury charges were such that the jury was deprived of its determination of what was reasonable conduct of the parties;
(2) The jury erred in not finding Brenda negligent for failing to sound her horn when passing the tractor-trailer; and
(3) The award of damages was excessive.

JURY CHARGES AND LIABILITY

Defendants contend that the jury charges given by the trial court, with respect to the duty to sound a horn when passing, were erroneous. We have reviewed the charges given by the trial court, pertaining to the circumstances under which a motorist must sound his horn when executing a passing maneuver, and find the charges clearly correct.

The charges are based upon the provisions of LSA-R.S. 32:351, as interpreted by the cases of Bacon v. Kansas City Southern Railway Company, 373 F.2d 515 (5th Cir. 1967); Soileau v. Hanover Insurance Company, 232 So.2d 128 (La.App.3rd Cir. 1970); Sevin v. Diamond M Drilling Company, 261 So.2d 375 (La.App. 1st Cir. 1972).

We find no departure from the law in these instructions.

As to liability, defendants argue that the jury erred in not finding Brenda negligent for failing to sound her horn when she began the passing maneuver in question. We disagree.

The statute upon which defendants rely is LSA-R.S. 32:351, which provides, in pertinent part:

“A. . . . The driver of a motor vehicle shall, when reasonably necessary to insure safe operation, give audible warning: with his horn, but shall not otherwise use such horn when upon a highway of this state....” (Emphasis added.)

The statute does not require one to sound his/her horn when passing a vehicle upon any highway of the state unless it is reasonably necessary to safely execute the passing maneuver. The duty to sound a horn upon passing depends upon the facts of the case.

In the case of Ainsworth v. Bituminous Cas. Corp., 379 So.2d 1187 (La.App. 3rd Cir. 1980), writs den., 381 So.2d 1233, 1234 (La.1980), this court affirmed a jury’s determination that it is not negligence to attempt to pass a car without sounding a horn if it appeared reasonably safe to attempt the passing procedure. In construing the question of the passing motorist’s negligence, this court construed LSA — R.S. 32:351(A) in light of its longstanding ruling in Soileau v. Hanover Insurance Company, supra, at 130, which stated:

“[t]he purpose of requiring an overtaking motorist to sound his horn is to clear the roadway ahead of him when it is obstructed. When the preceding vehicle is occupying its own lane of traffic though traveling slowly, there is no duty on the part of an overtaking motorist to sound his horn.”

There was no negligence in Ainsworth, supra, on the part of the defendant due to the fact that Ainsworth’s car was occupying its own lane when defendant attempted to pass and, thus, defendant was under no duty to sound his horn.

Clearly, from the testimony deduced at trial, the Borden truck was occupying its own lane when Brenda began to overtake it. The truck had ceased its crossing over into the left (passing) lane. The cause of the accident was due to a blind spot in the rear view mirror in defendant’s truck leaving the driver with the impression that the lane was clear and that he could begin to pass the vehicle in front of him. Brenda acted as a reasonably prudent person in passing the tractor-trailer. She was not required to sound her horn but stated that she did so when the tractor-trailer began to encroach into her lane. The jury was not clearly wrong in finding the driver of the tractor-trailer negligent in forcing Brenda off the road by encroaching in the left lane she already occupied, thus, precipitating the accident.

QUANTUM

Defendants argue that the award of damages to Brenda was excessive. Plaintiffs answered the appeal seeking an increase in the damages award. We find the jury award to be neither excessive nor inadequate.

After the accident on August 17, 1976, Brenda returned to her home and took medication which was prescribed by her family physician, Dr. Archie B. Osborn. She continued to suffer lower back pains and had a physical examination by Dr. Osborn, including x-rays made on September 7,1976. Dr. Osborn stated that the radiologist’s report disclosed a lip fracture of the fourth lumbar vertebra. He then referred her to an ortho-paedic surgeon, Dr. Daniel M. Kingsley, in Alexandria.

Dr. Kingsley examined Brenda on September 15, 1976, and reviewed the x-rays. He prescribed a muscle relaxant and noticed no symptoms of nerve damage. He did not find a fracture but felt, due to the pain and trauma, it was possible and, if so, then the damage to the bone could affect the nerves in the spinal column and cause the pain of which Brenda complained.

Brenda continued to complain to Dr. Osborn of continuing pain in her back and he referred her to Dr. William G. Akins, Jr., an orthopaedic surgeon in Lake Charles. Dr. Akins examined her on October 18, 1976. He took x-rays, multiple views, of her spine. The x-rays revealed “a fracture of the L-4 vertebra at a portion called the anterior-superior margin, and that means the front and top portion of the individual vertebra was fractured.” The fracture was considered stable with minimal displacement which required no surgery or braces but merely a reduction of physical activity.

Brenda further saw Dr. Akins on November 19, 1976, January 17, 1977, March 11, 1977 and June 10, 1977. During this time he prescribed an exercise regimen. He assigned a two percent disability of the body. He further stated that following such a fracture permanent damage could be done to the disc, the cushion between the third and fourth vertebrae. It was his opinion that Brenda’s injuries and disability were permanent and may lead to further complications in the future. On each of Brenda’s visits she complained of low back pain upon stooping or continuous sitting and an aching sensation whenever she does exercises and participates in sports. Dr. Akins stated that he would defer to Dr. Webre for his prognosis of Brenda’s future condition as Dr. Webre had seen Brenda for a period of about three years after he had last seen her.

After graduating from Elizabeth High School, Brenda began attending the University of Southwestern Louisiana in Lafayette. She continued having low back pains. She consulted an orthopaedic surgeon in Lafayette, Dr. Fred C. Webre. Dr. Webre first saw her on October 31, 1977, and he took a series of lumbosacral x-rays as well as conducted a routine physical examination. He identified a healed compression fracture of the L-4 vertebra. He further saw Brenda on April 5, 1979, August 30, 1979, February 27, 1980, February 18, 1981 and June 25,1981. He stated that she suffers pain while exercising and participating in sporting activities. He also found a noticed narrowing of the L-3-4 interspace. Dr. Webre concluded that Brenda has a defect in her back as reflected in the x-rays and that she had a permanent disability of the body which he assessed at fifteen percent which was attributable to the accident.

Dr. Webre stated that pain will be experienced in exercise and sporting activities and that she will be unable to engage in any heavy work in the future. He stated that the narrowing of the interspace is a result of what is called a “ruptured disc” and that for a 20 year old person, fifteen percent disability is not unusual. Further he testified that upper back pain of which she had complained is not uncommon with this condition.

Defendants had Brenda examined by Dr. Norman P. Morin, an orthopaedic surgeon in Lake Charles, on May 26,1979. He made x-rays of her back and assigned a five percent partial permanent disability of the back. We note, however, that Dr. Webre’s assessment was based on visits in 1979,1980 and 1981. The further degeneration of the disc interspace became more and more pronounced over the course of time.

After the testimony of the physician was presented to the jury, it returned a verdict in favor of plaintiff for damages in the amount of $50,000.00. We have reviewed the medical testimony as well as that of various other witnesses and Brenda concerning her pain and suffering since 1976. We note that the disability, due to the defect, has grown progressively worse as time has elapsed. The disability progressed from five percent to fifteen percent of the body as a whole. The medical evidence preponderates that the defective disc condition will worsen in the future. We cannot conclude that the jury’s determination was erroneous given all the circumstances. We find the award neither excessive nor inadequate.

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed against defendants-appellants.

AFFIRMED.

      . A driver attempting to overtake and pass another motor vehicle is required by law to sound his horn so as to give adequate audible warning to the driver ahead of his intention to pass, providing that this is reasonably necessary in order to complete safe operation.

      . An overtaking vehicle is only required to sound its horn when there is not sufficient clearance in the passing lane to pass; under those circumstances the horn is sounded merely to warn the preceding vehicle that it must give way to the right in order to provide such clearance.

      .Once the overtaking motorist establishes his right of way over the preceding motorist by being in the passing lane before the preceding motorist pulls to the left to also attempt to pass, it is irrelevant whether or not the overtaking motorist first sounds his horn.


source: Caselaw Access Project

author: LABORDE, Judge.

license: Public Domain

text:
    Mr. and Mrs. Wilfred WYBLE, Plaintiffs-Appellants, v. ST. LUKE GENERAL HOSPITAL, et al., Defendants-Appellees.
    No. 8825.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1982.

      Domengeaux & Wright, Robert K. Tracy, Lafayette, for plaintiffs-appellants.
    Watson, Blanche, Wilson & Posner, William E. Scott, III, and Peter Dazzio, Baton Rouge, for defendants-appellees.
    Before GUIDRY, STOKER and LA-BORDE, JJ.
   LABORDE, Judge.

Plaintiff-appellants, Mr. and Mrs. Wilfred Wyble, brought suit against St. Luke General Hospital and its insurer, All Risk Corporation of Louisiana, Inc., for personal injuries sustained by Mrs. Wyble while receiving treatment in St. Luke General Hospital. The personal injuries were allegedly caused by an unknown employee of the x-ray department who tripped over an IV tubing and dislodged the IV needle located in Mrs. Wyble’s wrist while she was waiting to be x-rayed.

The Wybles filed suit in the district court and also filed with the medical review panel in accordance with LSA-R.S. 40:1299.47. St. Luke General Hospital and its insurer, All Risk Corporation of Louisiana, Inc., filed an exception of prematurity to the district court petition, claiming that under the Medical Malpractice Act, the petitioners’ claim must first be reviewed by a medical review panel. The trial court sustained the exception of prematurity and dismissed plaintiffs-appellants’ state court suit without prejudice pending a determination by the medical review panel. From this judgment, the plaintiffs have perfected this appeal. We affirm.

The sole issue on appeal is whether the trial court erred in finding that plaintiffs’ claim falls under the purview of the Medical Malpractice Act such that their suit in district court was premature.

The Medical Malpractice Act requires that “all malpractice claims against health care providers” covered under the Act must be submitted to a medical review panel prior to filing of suit. LSA-R.S. 40:1299.47 A and B. Even though plaintiffs did file their claim with the board, they now allege that the filing was unnecessary because the claim is one of simple negligence governed by Civil Code Article 2315 and not one of malpractice governed by the Medical Malpractice Act. Finding that plaintiffs’ claim meets each definitional requirement of the Act, we disagree with plaintiffs’ contentions.

Under the Act, a “health care provider” is defined broadly to include a hospital and its employees acting in the course and scope of their employment. LSA-R.S. 40:1299.41 A 1. Clearly, the unknown x-ray department employee is an employee of the hospital and no allegation has been made that the employee was acting other than in the course and scope of his employment when the alleged accident occurred.

“Malpractice”, as it is used in the Act, also enjoys a broad definition as it includes any unintentional tort based on health care rendered by a health care provider to the patient. LSA-R.S. 40:1299.41 A 8. “Health care” includes any act or treatment performed or furnished by a health care provider for, to, or on behalf of a patient during the patient’s medical care, treatment, or confinement. LSA-R.S. 40:1299.-41 A 9. The alleged tort suffered by Mrs. Wyble was one arising out of treatment rendered during her stay in the hospital and there are no allegations that it was an intentional tort.

An argument similar to the one advanced in the present suit was raised in Cashio v. Baton Rouge General Hospital, 378 So.2d 182 (La.App. 1st Cir. 1979). In that case, plaintiff argued that the Medical Malpractice Act did not apply because the defendant-hospital could be found liable under the strict liability articles of the Civil Code. Our brothers of the First Circuit rejected the argument, correctly we feel, explaining:

“We do not have to conclude in this case whether hospitals can be held liable without fault under those articles. Instead we hold, based upon our understanding of the legislative intent, that any conduct complained of should be handled under the procedure of the Act if it can be reasonably said that it comes within the definitions of the Act even though there may be alternative theories for liability.”

In connection with our discussion of the definitions of the Act and their applicability to the facts presented in the instant case, we find the holding in the Cashio case to be equally applicable here. We therefore conclude that plaintiffs’ claim is one of malpractice governed by the Medical Malpractice Act and as such, defendants’ exception of prematurity was correctly sustained and the suit dismissed without prejudice.

Plaintiffs further complain that the requirement of the Act that a medical review panel render a ruling prior to a court determination denies them their constitutional right of due process. Our Supreme Court answered the very same contention in Everett v. Goldman, 359 So.2d 1256 (La.1978), as follows:

“The act provides, at the expense of a delay in filing the suit in court, a procedure for review of the claim. The panel determines from the evidence submitted whether there is a basis for the claim, and gives its opinion accordingly. If the panel determines the claim is substantial, the claimant obviously is benefited. If the panel determines the claim is groundless, the claimant is informed of what certain medical experts think of the merits of his claim. If he disagrees with their analysis he may still sue for a vindication of his rights in a court of law. The law specifically provides that prescription does not run during the period the matter is subject to consideration by the medical review panel and for a period of ninety days following its opinion.
Moreover, the fact that the plaintiff may not pray in his petition for a specified monetary sum does not restrict the judge’s or jury’s setting of damages. And these provisions do not restrict plaintiff’s recovery.
In all cases which go to trial the judge or jury remain the final arbiter of factual questions concerning liability and quantum. We find that these two provisions are reasonable, and that they do not unconstitutionally restrict access to the courts. See Prendergast v. Nelson, 199 Neb. 97, 256 N.W.2d 657 (1977); Comiskey v. Arlen, 55 A.D.2d 304, 390 N.Y.S.2d 122 (2d Dept. 1976).”
See also Vincent v. Ramagosa, 390 So.2d 270 (La.App. 3rd Cir. 1980), writs refused, 396 So.2d 901 (La.1981).

The Wybles’ final contention is that we decide this case according to equity under Civil Code Article 21. Article 21 is applicable only where “there is no express law.” As previously discussed, we hold that the Medical Malpractice Act is applicable, thus we may not decide the case according to equity.

For these reasons, the decision of the trial court maintaining defendants’ exception of prematurity is affirmed. All costs of this appeal are assessed to plaintiffs.

AFFIRMED.


author: SWIFT, Judge.

text:
    VANCOUVER PLYWOOD CO., INC., Plaintiff-Appellant, v. Herbert L. SUMRALL, Administrator of the Office of Employment Security, and Wanda J. Bridwell, Defendants-Appellees.
    No. 8826.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1982.

      Smitherman, Lunn, Hussey & Chastain, W. James Hill, III, Shreveport, for plaintiff-appellant.
    Avant, Wall, Thomas, Riche & Falcon by Randall G. Wells, James A. McGraw, Baton Rouge, for defendants-appellees.
    Before DOMENGEAUX, CUTRER and SWIFT, JJ.
   SWIFT, Judge.

In this and four other consolidated cases Vancouver Plywood Company, Inc., (Vancouver) seeks judicial review of awards of unemployment compensation benefits to five of its former employees under the Louisiana Employment Security Law. LSA-R.S. 23:1471 et seq. This case, bearing our No. 8826, involves the claim of Wanda J. Bridwell. The others concern those of Louis E. Milem, Terry J. Procell, Lutrisa Gasaway and Láveme Penegar. The issues in all suits are identical and will be covered in one opinion. However, separate decrees will be rendered in each case.

These and a number of other unemployment compensation claims asserted against Vancouver were originally denied by the agency for the following reasons:

“You refused recall to work with your last employer. You have not furnished this office with any reason/any valid reason for your refusal. You refused recall to suitable work without good cause.”

The claimants timely appealed their disqualifications and after a joint hearing the appeals referee reversed such determinations. Vancouver then appealed to the Louisiana Board of Review which affirmed the decision of the appeals referee. Petitions for judicial review were filed in the Eleventh Judicial District Court for Sabine Parish, Louisiana, where the claimants reside. Peremptory exceptions of no cause of action were sustained by the trial judge. Motions for a new trial were denied and Vancouver has perfected these devolutive appeals.

We will first address the question of whether the trial court correctly sustained the exceptions of no cause of action.

The function of a peremptory exception of no cause of action is to test the sufficiency in law of the petition. In the case of Guillory v. Nicklos Oil and Gas Company, 315 So.2d 878 (La.App. 3 Cir. 1975) this court stated:

“The peremptory exception of no cause of action C.C.P. art. 927(4) questions whether the law affords any remedy to the plaintiff under the allegations of his petition. No evidence may be introduced to support or controvert an objection that the petition fails to state a cause of action. C.C.P. art. 931. American Creosote Company v. Springer, 251 La. 116, 241 So.2d 510 (1970). The exception is triable solely on the face of the petition. All well pleaded facts in the petition and attached documents must be accepted as true and any doubts must be resolved in favor of the sufficiency of the pleading to state a cause of action. The exception must be overruled unless the allegations affirmatively establish that under no facts admissible under the allegations of the petition does plaintiff have a cause of action. See Hero Lands Company v. Texaco, Inc., 310 So.2d 93 (La.1975); Watkins v. Louisiana High School Athletic Ass’n., 301 So.2d 695 (La.App. 3rd Cir. 1974).”

See also Krawfish Kitchen Restaurant, Inc. v. Ardoin, 396 So.2d 990 (La.App. 3 Cir. 1981).

Each of the petitions for judicial review alleges the following facts:

1) That the employee was either a member of the UBC-Southem Council of Industrial Woodworkers of America, AFL-CIO, or received benefits under the collective bargaining agreement between the plaintiff and the union which expired on February 15, 1980.

2) That the union went on strike at the plaintiff’s three plants on September 13, 1980, and that the labor dispute was in active progress from that date until October 27, 1980.

3) That the employee participated or was interested in the labor dispute.

4) That prior to the strike the employee had received unemployment benefits from March, 1980, until September 18, 1980.

5) That the plaintiff continued to operate its plants while negotiations were taking place and it notified the employee by letter on September 16,1980, that work was available and to return to work on September 18, 1980.

6) That the available work was suitable, because it was the same job with the same pay and shift that the employee previously had with Vancouver before being placed on lay-off status.

7) That the employee refused to cross the picket line and his unemployment benefits were terminated on September 18, 1980.

8)That the decision of the Louisiana Board of Review affirming the appeals referee’s decision to reverse the disqualification of the employee for unemployment compensation benefits was improper.

The trial court gave no reasons for sustaining the exceptions. However, he evidently shared the view of the administrative agencies that LSA-R.S. 23:1601(3)(b) was applicable to the alleged facts. We disagree.

LSA-R.S. 23:1601(3)(b) states in pertinent parts as follows:

“An individual shall be disqualified for benefits:
* * * * * *
“(3) If the administrator finds that he has failed, without good cause, either to apply for available, suitable work when so directed by the administrator or to accept suitable work when offered him, or to return to his customary selfemployment, if any, when so directed by the administrator.
* * * * * *
“(b) Notwithstanding any other provisions of this Chapter, no work shall be deemed suitable and benefits shall not be denied under this Chapter to any otherwise eligible individual for refusing to accept new work under any of the following conditions: (i) if the position offered is vacant due directly to a strike, lockout, or other labor disputes; ” [Emphasis added.]

In the instant case the plaintiff alleged that each claimant was offered and refused the same job with the same pay and shift as he or she had previously had before the March lay-off. Under these allegations the claimants did not refuse to accept “new work”, as the statute requires to prevent disqualification if the position offered is vacant due to a labor dispute. Instead, they refused to accept offers of employment of their previous work. Therefore, it is clear that the exception expressed in R.S. 23:1601(3)(b) is not applicable under the facts alleged in plaintiff’s petitions.

The subsection that is applicable to the alleged facts is LSA-R.S. 23:1601(4) which provides that an employee is disqualified for such benefits:

“(4) For any week with respect to which the administrator finds that his unemployment is due to a labor dispute which is in active progress at the factory, establishment, or other premises at which he is or was last employed; but such disqualification shall not apply if it is shown to the satisfaction of the administrator that he is not participating in or interested in the labor dispute which caused his unemployment.” [Emphasis added.]

According to the petitions, the claimants previously had been placed on layoff status by Vancouver and were receiving unemployment compensation. However, each was notified by letter about September 16, 1980, that work was available and to return to work on September 18,1980. The claimants were to be reemployed in their old jobs, but all refused to cross picket lines which were established because of a labor dispute that was in active progress at the plants where the claimants were last employed. It was also alleged that the claimants were either members of the union or received benefits under the collective bargain agreement between it and the company and they participated or were interested in the labor dispute. On the basis of these allegations each claimant was disqualified from receiving unemployment benefits under LSA-R.S. 23:1601(4). Senegal v. Lake Charles Stevedores Inc., 250 La. 623, 197 So.2d 648 (La.1967); and Cities Service v. Admin., La. Dept. of Emp., 383 So.2d 1315 (La.App. 3 Cir. 1980). Therefore, the district court erred in sustaining the exception of no cause of action and should have judicially reviewed the administrative proceedings.

With his answer Herbert L. Sumrall, the Administrator of the Office of Employment Security, has filed in the record a certified copy of the administrative record. Pursuant to LSA-R.S. 23:1634 the findings of the board of review as to the facts, if supported by sufficient evidence and in the absence of fraud, are conclusive and the jurisdiction of the district court is confined to questions of law. Since the record is complete, we will review it and render judgment in accordance with La.C.C.P. Art. 2164 rather than remand the case for further proceedings.

The appeals referee made the following findings of fact:

“The claimants worked for the named employer for varying lengths of time and in various capacities until they were laid off due to a reduction in force on or about March 28, 1980. All of them were told that they would be contacted and notified when to return to work if work should become available again. On September 13,1980 a work stoppage occurred at all three locations of the employer’s operations (Oakdale, Louisiana, Florien, Louisiana, and Fisher, Louisiana). The employees who were still working for the company put up pickets at all three locations. On September 15, 1980, all of the striking employees and all the employees who were on layoff status were sent certified letters asking them to report for work on September 18, 1980. None of the striking workers reported for work. The claimants were not made aware of what jobs were to be available to them, what shifts they might be working or what their rates of pay would be. A few of the claimants contacted the employer, but most of them did not. The employer tried to contact all of the claimants by telephone to see if they were returning to work. The personnel office was able to contact some of them, but they were not able to reach all of the claimants. When they were contacted they were asked if they were coming back to work. They were not asked why they were not returning, but some of the claimants volunteered the information that they were afraid to cross the picket lines to return to work for fear of being harmed. Most, but not all, of the claimants are members of the union which was striking against the employer. The labor dispute was ended on November 10, 1980. A few of the claimants were asked to return to work after the strike, but most of them were not. The company is still not running at full capacity on three shifts at all locations as they were prior to the layoff on March 28, 1980.”

After reviewing the law the referee said this in his opinion:

“The issues in this case are whether the work offered to the claimants was ‘new work’, whether the work was suitable, and whether the claimants refusal of the work was for good cause.
“Although the employer contended at the hearing that all of the employees (including both those out on strike and those who had been laid off) were recalled for September 18, 1980 because the employer intended to restart operations on a full scale basis (three shifts at three locations), this is not borne out by the testimony. Even after the strike is over the plant is not operating at full capacity, and all of the workers have not been recalled to work. Therefore, it cannot be concluded that the work to which the claimants were being recalled was their old work. The jobs were only going to be vacant as a result of the fact that the workers with more seniority were out due to a labor dispute in progress at the places of operations.
“The claimants were not made aware when contacted of what jobs were being offered them, but the testimony at the hearing was that they would have been offered their same jobs at their same rates of pay. Therefore, the work that was available appears to have been suitable except for the fact that the positions were only available as a result of the labor dispute. Therefore, it is concluded that the claimants’ refusal of the work was for good cause. They should not be disqualified for unemployment insurance benefits pursuant to the provisions of R.S. 23:1601(3).”

The Louisiana Board of Review affirmed the decision of the appeals referee without stating any additional reasons on February 9, 1981.

It thus appears that the appeals referee found as facts most, if not all, of the allegations contained in Vancouver’s petition, except whether the employees were to be given back their old jobs and possibly the real reason for their failure to cross the picket lines and resume employment.

We have carefully reviewed the record and find that the only evidence on the first point is the testimony of the employer’s representatives who said unequivocably that Vancouver intended to resume full production and planned to rehire each of the claimants on September 18, 1980, in his or her same position, on the same shift and at the same rate of pay. We do not attach any significance to the fact that after the strike was over on October 27 or 28, 1980, the plant was not operated at full capacity. The issue is whether the claimants were to be reemployed at their old jobs on September 18, 1980. None reported then to see what work was available. The referee’s opinion that it was not their old work is based on mere speculation, not evidence sufficient in law to sustain his finding.

Nor do we consider to be of any significance the fact that some of the claimants were not told just what jobs they were to perform if they returned to work. Letters to resume employment on September 18, 1980, were mailed to all claimants and Vancouver attempted, but was unable, to contact many of them by telephone to furnish further information as to their reemployment. The only evidence on the subject is that they would have been given their old jobs had they gone back to work as requested.

The burden of proof is on the employee to establish that he comes within the exceptions to disqualification when he fails to accept an offer of available employment. Senegal v. Lake Charles Stevedores, Inc., supra; Amstar Corp. v. Gerace, 388 So.2d 1167 (La.App. 4 Cir. 1980). Certainly, the claimants have failed to establish that the work offered in this instance was “new work” and therefore unsuitable.

In view of the claimants’ refusal to cross the picket line and resume their former employment it is clear that they were disqualified for benefits during the strike under LSA-R.S. 23:1601(4) unless they established that they were not participating or interested in the labor dispute.

The record reflects that three and possibly four of the five claimants in these cases were non-union members. Even though they were initially laid off in March, 1980, they were still entitled to certain benefits such as the company pension plan, retention of their seniority status for one year and an opportunity to continue their group insurance benefits. They were considered to be within the bargaining unit that was represented by the union in negotiations with the company and they would benefit from any such negotiations if reemployed. Under these circumstances and Senegal, Cities Service and Amstar, supra, the claimants were interested in the labor dispute and therefore disqualified for unemployment benefits after September 18, 1980, by LSA-R.S. 23:1601(4). We do not have sufficient evidence, however, to determine whether or not the claimants once again became entitled to benefits after the labor dispute ended. We will remand the case for such determinations. Dyess v. Doyal, 341 So.2d 586 (La.App. 2 Cir. 1977).

For the foregoing reasons, the judgment of the district court is reversed and this case is remanded to the Louisiana Board of Review to grant relief to the plaintiff, Vancouver Plywood Co., Inc., in accordance with law and this opinion. Additionally, the board will determine whether or not the defendant, Wanda J. Bridwell, again became eligible for benefits after the strike ended.

REVERSED AND REMANDED.

      . The other cases are respectively numbered 8827, 8828, 8829 and 8830 and they are reported in 415 So.2d 630, 415 So.2d 631, 415 So.2d 631 and 415 So.2d 632.


text:
    VANCOUVER PLYWOOD CO., INC., Plaintiff-Appellant, v. Herbert L. SUMRALL, Administrator of the Office of Employment Security, and Louis E. Milem, Defendants-Appellees.
    No. 8827.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1982.
    Smitherman, Lunn, Hussey & Chastain, W. James Hill, III, Shreveport, for plaintiff-appellant.
    Avant, Wall, Thomas, Riche & Falcon by Randall G. Wells, James A. McGraw, Baton Rouge, for defendants-appellees.
    Before DOMENGEAUX, CUTRER and SWIFT, JJ.
   SWIFT, Judge.

For the reasons this day assigned in the companion suit bearing our docket No. 8826, Vancouver Plywood Co., Inc. v. Herbert L. Sumrall, Administrator of the Office of Employment Security and Wanda J. Bridwell, 415 So.2d 625, the judgment of the district court is reversed and this case is remanded to the Louisiana Board of Review to grant relief to the plaintiff, Vancouver Plywood Co., Inc., in accordance with law and that opinion. Additionally, the board will determine whether or not the defendant, Louis E. Milem, again became eligible for benefits after the strike ended.

REVERSED AND REMANDED.


text:
    VANCOUVER PLYWOOD CO., INC., Plaintiff-Appellant, v. Herbert L. SUMRALL, Administrator of the Office of Employment Security, and Terry J. Procell, Defendants-Appellees.
    No. 8828.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1982.
    Smitherman, Lunn, Hussey & Chastain, W. James Hill, III, Shreveport, for plaintiff-appellant.
    Avant, Wall, Thomas, Riche & Falcon by Randall G. Wells, James A. McGraw, Baton Rouge, for defendants-appellees.
    Before DOMENGEAUX, CUTRER and SWIFT, JJ.
   SWIFT, Judge.

For the reasons this day assigned in the companion suit bearing our docket No. 8826, Vancouver Plywood Co., Inc. v. Herbert L. Sumrall, Administrator of the Office of Employment Security and Wanda J. Bridwell, 415 So.2d 625, the judgment of the district court is reversed and this case is remanded to the Louisiana Board of Review to grant relief to the plaintiff, Vancouver Plywood Co., Inc., in accordance with law and that opinion. Additionally, the board will determine whether or not the defendant, Terry J. Procell, again became eligible for benefits after the strike ended.

REVERSED AND REMANDED.


text:
    VANCOUVER PLYWOOD CO., INC., Plaintiff-Appellant, v. Herbert L. SUMRALL, Administrator of the Office of Employment Security, and Lutrisa Gasaway, Defendants-Appellees.
    No. 8829.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1982.
    Smitherman, Lunn, Hussey & Chastain, W. James Hill, III, Shreveport, for plaintiff-appellant.
    Avant, Wall, Thomas, Riche & Falcon by Randall G. Wells, James A. McGraw, Baton Rouge, for defendants-appellees.
    Before DOMENGEAUX, CUTRER and SWIFT, JJ.
   SWIFT, Judge.

For the reasons this day assigned in the companion suit bearing our docket No. 8826, Vancouver Plywood Co., Inc. v. Herbert L. Sumrall, Administrator of the Office of Employment Security and Wanda J. Bridwell, 415 So.2d 625, the judgment of the district court is reversed and this case is remanded to the Louisiana Board of Review to grant relief to the plaintiff, Vancouver Plywood Co., Inc., in accordance with law and that opinion. Additionally, the board will determine whether or not the defendant, Lutrisa Gasaway, again became eligible for benefits after the strike ended.

REVERSED AND REMANDED.


text:
    VANCOUVER PLYWOOD CO., INC., Plaintiff-Appellant, v. Herbert L. SUMRALL, Administrator of the Office of Employment Security, and Laverne Penegar, Defendants-Appellees.
    No. 8830.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1982.
    Smitherman, Lunn, Hussey & Chastain, W. James Hill, III, Shreveport, for plaintiff-appellant.
    Avant, Wall, Thomas, Riche & Falcon by Randall G. Wells, James A. McGraw, Baton Rouge, for defendants-appellees.
    Before DOMENGEAUX, CUTRER and SWIFT, JJ.
   SWIFT, Judge.

For the reasons this day assigned in the companion suit bearing our docket No. 8826, Vancouver Plywood Co., Inc. v. Herbert L. Sumrall, Administrator of the Office of Employment Security and Wanda J. Bridwell, 415 So.2d 625, the judgment of the district court is reversed and this case is remanded to the Louisiana Board of Review to grant relief to the plaintiff, Vancouver Plywood Co., Inc., in accordance with law and that opinion. Additionally, the board will determine whether or not the defendant, Laverne Penegar, again became eligible for benefits after the- strike ended.

REVERSED AND REMANDED.


author: DOMENGEAUX, Judge.

text:
    Terry LOWRY, Plaintiff-Appellee, v. DECKS AND TAPES, INC., Defendant-Appellant.
    No. 8831.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1982.

      Anderson, Anderson, Stefes & Hawsey, L. E. Hawsey, III, Baton Rouge, for defendant-appellant.
    Hunt, Godwin, Painter & Roddy, Thomas Lorenzi, Lake Charles, for plaintiff-appel-lee.
    Before DOMENGEAUX, CUTRER and SWIFT, JJ.
   DOMENGEAUX, Judge.

This action was instituted by plaintiff-ap-pellee, Terry Lowry, for the return of $2,000.00 he deposited with defendant-appellant, Decks and Tapes, Inc., in connection with the purchase of a new bedroom suite. In answer to plaintiff’s petition defendant prays that plaintiff’s suit be dismissed with prejudice at plaintiff’s costs. The case was submitted to the trial court on the basis of the deposition of plaintiff, and the affidavit of Brad Hamlet, manager of Decks and Tapes, Inc. Based on these documents, the trial judge found in favor of plaintiff and against defendant, and ordered defendant to return to plaintiff his $2,000.00 deposit with legal interest thereon. From this adverse judgment defendant appeals.

The trial judge in his written reasons made the following determinations of fact, which pertinent parts we adopt as our own:

“On October 18, 1979, the Plaintiff, Terry Lowry, ordered a bedroom suite from the Defendant, Decks & Tapes, Inc., for the price of $2,503.33. The Plaintiff selected the bedroom suite from a catalog. He understood that the Defendant did not have the bedroom suite in stock and would have to order it from the manufacturer. Lowry gave Brad Ham-lett, manager of the Decks & Tapes store in Lake Charles, a deposit of $1,000.00, and Hamlet ordered the bedroom suite from the manufacturer, Latin Industries, Inc., of Pomona, California, on the same day — October 18.
Lowry understood that it would take six to eight weeks for the bedroom suite to be delivered to the Decks & Tapes store in Lake Charles. All of the components of the bedroom suite were received by Decks & Tapes during the first week of December, 1979.
As soon as all of the components were received, Hamlett telephoned Lowry and advised him that the bedroom suite had arrived. The Plaintiff went to the Decks & Tapes store and paid Hamlett an additional deposit of $1,000.00. Hamlett then helped Lowry move the crates containing the bedroom suite to the Plaintiff’s mother’s home.
Upon uncrating the bedroom suite, Lowry discovered that all but one of the items of furniture had been damaged in shipment. He telephoned Hamlett at the Decks & Tapes store the following day and informed him of the damage to the furniture. Hamlett inspected the bedroom suite at the Plaintiff’s mother’s home and found that it had indeed been damaged in shipment.
Lowry and Hamlett spent several days investigating the possibility of having the damaged items repaired by someone in the Lake Charles area. During the second or third week of December, 1979, after it had become apparent that the damaged items could not be satisfactorily repaired by anyone in the Lake Charles area, Lowry asked Hamlett to order replacements for the damaged items from the manufacturer. Hamlett agreed to do so, and ordered the replacements. The Plaintiff retained the undamaged components — the bottom of the high chest and a water-bed heater — and returned the damaged furniture to the Decks & Tapes store.
Hamlett received replacements for the damaged items in separate shipments that arrived at the Decks & Tapes store during the latter part of January and in February, 1980. Sometime in February, Lowry told Hamlett that he no longer wanted the bedroom suite and wanted his deposit back. Hamlett informed the Plaintiff that the last two replacement items had already been shipped and should be arriving in Lake Charles any day.
Lowry refused to accept delivery of the bedroom suite and again asked that his deposit be returned. Hamlett offered to return the deposit when and if Decks & Tapes could find another purchaser for the bedroom suite. Apparently, the Plaintiff was not satisfied with Hamlett’s proposal, since this suit was filed on April 17,1980.” (Emphasis and footnote added by Court of Appeal).

The issues presented on appeal are:

(1) Whether or not the trial judge erred in basing his decisions upon equitable considerations rather than positive written law; and

(2) Whether or not plaintiff was at liberty to withdraw from his contract with defendant “sometime in February”.

The trial judge in a written opinion found for the plaintiff for reasons stated as follows:

“... While this court can appreciate the arguments of both parties concerned and can certainly understand that both parties did all within their power to accommodate the other, this court feels compelled to avail itself of the all-encompassing articles pertaining to equity and the cases relating thereto.
It is the court’s finding in favor of the Plaintiff, who never received all of the merchandise in proper working order and against the Defendant who has the merchandise in his possession, and may sell it for retail value which probably today exceeds that of the price quoted at the time of sale.”

It is well settled that Louisiana courts may base the decision of civil matters on equitable considerations only when positive law is silent. La.C.C. Art. 21; Valien v. Prather, 348 So.2d 229 (La.App. 3rd Cir. 1977), writ denied 351 So.2d 515 Edmonston v. A-Second Mortgage Company of Slidell, Inc., 289 So.2d 116 (La.1974). In the instant suit, where plaintiff is seeking return of a deposit given on the sale of furniture because of untimely delivery, there is an abundance of express law covering this type of situation, and thus a cause of action based on equity cannot be relied upon. La. C.C. Arts. 2477, et seq.

The next question is whether or not in February of 1980 plaintiff was at liberty to withdraw from his contract pursuant to La. C.C. Art. 2485. We think not.

Every sales contract which is silent as to time of performance implies an obligation to deliver within a reasonable time. Failure to deliver within a reasonable time gives the buyer the option of cancelling the sale. La.C.C. Art. 2485. What is a reasonable time is to be determined by the particular circumstances surrounding the particular sale. See H. T. Cottam & Co. v. Moises, 149 La. 305, 88 So. 916 (1921); Morvant v. Russell & Clemmons, 11 So.2d 45 (La.App. 1st Cir. 1942).

Here, the initial sales order was placed on October 18, 1979. The parties both understood that it would take six to eight weeks for delivery. As soon as defendant received plaintiff’s order, plaintiff was notified, and the bedroom suite was delivered. Subsequently, around the third week of December, plaintiff and defendant agreed to reorder those pieces of furniture which were damaged in shipment. Plaintiff retained possession of those items which were not damaged. No time for delivery of this second order was set. There was no further communications between plaintiff and defendant concerning a need for delivery up until “sometime in February” when plaintiff notified defendant that he no longer wanted the furniture. At this point defendant informed plaintiff that the remainder of his order had already been shipped from the manufacturer, and in fact it arrived at defendant’s door the very next day. There was no putting in default, and defendant was not given an opportunity to comply with any required delivery deadline.

Under these circumstances a delay between six to nine weeks from placement of the second order was not an unreasonable period of time; did not constitute a breach of the contract by defendant; and did not justify the plaintiff cancelling the contract. At the very least plaintiff should have anticipated a six to eight weeks delay for delivery of the re-ordered merchandise, i.e., the same delay expected from the initial order. Although the facts are not clear, the re-ordered merchandise arrived at defendant’s door anywhere between six to nine weeks after placement of this order, and even if we assume that it arrived in the ninth week after order, we still find that such a delay would not have been unreasonable considering all facts and circumstances surrounding this transaction.

There being a binding sales contract, accompanied by a tender of delivery of the re-ordered items sold by defendant within a reasonable time, defendant is entitled to enforce the contract and recover the unpaid balance of the agreed upon purchase price upon delivery of the remaining furniture.

Judgment is rendered herein in favor of defendant, Decks and Tapes, Inc., and against plaintiff, Terry Lowry, rejecting plaintiff’s demands and dismissing his suit with prejudice.

Costs at trial and on appeal are to be assessed against plaintiff-appellee, Terry Lowry.

REVERSED AND RENDERED.

      . [By Court of Appeal] Neither the deposition of plaintiff nor the affidavit of defendant’s manager indicates when in February plaintiff informed defendant that he no longer wanted the ordered merchandise or when it actually arrived. Both agree, however, that the events took place in February of 1980.


author: STOKER, Judge.

text:
    J. Mark BARTLETT, Plaintiff-Appellee, v. DOCTOR’S HOSPITAL OF TIOGA, INC., Defendant-Appellant.
    No. 8836.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1982.

      Broussard, Bolton & Halcomb, Dorwan G. Vizzier, Alexandria, for defendant-appellant.
    Gold, Little, Simon, Weems & Bruser, Robert G. Nida, Alexandria, for plaintiff-appellee.
    Before GUIDRY, STOKER and LA-BORDE, JJ.
   STOKER, Judge.

James Bartlett (Bartlett) brought suit against Doctor’s Hospital of Tioga, Inc. (Doctor’s Hospital) seeking past due wages, penalties, and attorney’s fees under LSA-R.S. 23:631 and 23:632. The trial court rendered judgment in favor of Bartlett for $211.66 representing wages due through July 16,1981, and in the further amount of $260.00 per week thereafter until wages are paid in full up to a maximum of ninety days wages (at the daily rate of $52.00 per day), subject to a credit of $205.00. The trial court also awarded $500.00 to Bartlett for his attorney’s fees. The hospital appealed and Bartlett answered the appeal, seeking an increase in attorney’s fees to cover the cost of the appeal.

Bartlett worked as the supervisor of the Respiratory Department of Doctor’s Hospital until July 16, 1981, when he either quit his job or was fired because of a disagreement over a change in his hours of employment. Bartlett was paid $6.50 per hour for forty hours per week, time-and-a-half for overtime hours, plus $20.00 per week for being on call at night and after regular working hours. Bartlett also received $10.00 for each “call-back” when he returned to the hospital after regular working hours. Based on an hourly rate of $6.50, Bartlett's daily rate was $52.00 and his weekly rate was $260.00.

Bartlett was paid every two weeks. His employment was terminated on July 16, 1981, the fourth day of the pay period which ended on July 26. After conferring with his attorney on July 16, Bartlett demanded payment of his wages within three days of his discharge but was told that he would have to wait until July 31, the regular pay day for that pay period. On July 31, Bartlett was paid $205.00, representing compensation for thirty hours of employment ($195.00) and one “call-back” ($10.00). Bartlett contends that he should have been paid $211.66, the extra $6.66 being the compensation owed him for being “on call” for three days of the pay period. This amount was still unpaid by the time of the trial.

Doctor’s Hospital contends that the trial court erred in two respects:

1. The trial court erred in requiring that the hospital employer pay the employee both his full wages and the amount of penalty accrued through July 31, to avoid the accrual of further penalty after July 31, 1981.

2. The trial court erred in failing to consider whether Mark Bartlett was paid in full on July 31, 1981, and in failing to find that in fact the plaintiff Mark Bartlett was paid all that he was entitled to receive as earned wages on July 31,1981. These specifications of error will be discussed below.

WAS BARTLETT PAID IN FULL ON JULY 31, 1981?

Doctor’s Hospital contends that the trial court found that full payment was not made to Bartlett on July 31, 1981, because Doctor’s Hospital paid only the back wages then due and did not pay the penalty wages which had accrued by that time. We do not agree with this interpretation of the trial court’s ruling.

The trial court in its written reasons for judgment given with respect to the cases of several employees consolidated for trial stated as follows:

“The Court is convinced that they [Bartlett, et al] made their demand for their pay on July 16,1981 and the defendant was obligated under the statute to pay them for their earned wages within 72 hours. The defendant elected not to pay the plaintiffs until July 31, 1981 in violation of the statute and since they elected to delay the plaintiff’s pay the defendant was obligated to pay the plaintiffs as though their employment continued until that day. Since they were not paid in full through July 31, 1981, the defendant was obligated to continue to pay them until they are paid in full for a maximum period of 90 days.” (Emphasis supplied)

As can be seen, the trial court found that Bartlett was not paid in full on July 31, 1981, but did not state that the deficiency of the payment was due to the failure of Doctor’s Hospital to pay penalty wages up to that date. Bartlett had averred in his petition and had argued in court that the payment made to him on July 31, was short by $6.66 because it did not include compensation for his being on call for three days. We believe that the trial court found this to be true in stating its finding that the July 31st payment of $205.00 was not full payment. This is corroborated by the fact that the trial court awarded $211.66 to Bartlett, subject to a credit of the $205.00 received by Bartlett on the 31st. The difference between the two figures is $6.66, the exact figure which Bartlett contended was owed to him after the payment on July 31, 1981.

The validity of the judgment of the trial court should be presumed, and it should not be given an interpretation which would make it invalid. Springlake Homeowners Association, Inc., v. Pecot, 321 So.2d 789 (La.App. 4th Cir. 1975). Therefore, we interpret the trial court’s judgment to mean that the payment by Doctor’s Hospital to Bartlett on July 31, 1981, was not full payment because it did not include compensation for Bartlett’s having been on call for three days. Under this interpretion, we need not consider the cases cited by Doctor’s Hospital to the effect that accrued penalty wages need not be tendered to the employee along with the back wages due to him to stop the running of further penalty wages.

WAS BARTLETT OVERPAID IN HIS NEXT-TO-LAST PAY CHECK?

Doctor’s Hospital contends further that through overpayment in a previous payment Bartlett was in effect paid all that was owed to him when he was given his final payment on July 31,1981, and that the trial court failed to consider this.

This contention is based on Doctor’s Hospital’s argument that Bartlett was overpaid in his next-to-last paycheck and that this overpayment more than compensated Bartlett for the amount which he claims was missing in his last paycheck. The determination of whether or not Bartlett was overpaid in his next-to-last paycheck requires a determination of the proper compensation owed to Bartlett for his “call-backs”. This question turns on whether Bartlett and other employees employed in the same kind of work were paid on a per task basis performed on a call-back or simply on a per call-back basis.

Bartlett contends that the proper compensation for call-backs was $10.00 for each individual test performed by the employee returning to the hospital after hours. Two ex-employees of the respiratory department who left their employment at the same time and for the same reason as did Bartlett also testified that they were paid $10.00 for each task performed on a call-back.

The administrator and an assistant administrator of Doctor’s Hospital testified that hospital policy was to pay $10.00 for each trip to the hospital on a call-back (no matter how many tasks might be performed) since the purpose of the payment was to compensate the employee for the expenses incurred in returning to the hospital after working hours. Under this interpretation, Bartlett was overpaid for callbacks in his next-to-last paycheck since he was paid forty dollars for performing four tests on call-back, but only made two trips back to the hospital on call-back during that period. Therefore, Doctor’s Hospital contends that Bartlett was overpaid by twenty dollars on his next-to-last paycheck, more than enough to compensate him for the underpayment by $6.66 on his last paycheck.

The trial court apparently considered and rejected Doctor’s Hospital’s argument. There was ample evidence before the trial court in the form of the testimony of Bartlett and the two other ex-employees that the customary compensation for call-backs was $10.00 per task performed after regular working hours and that therefore he was not overpaid on his next-to-last pay check. Although there was contrary testimony by the administrator and assistant administrator of the hospital that Bartlett was overpaid for call backs in his next-to-last pay period, we cannot say that the trial court’s rejection of this evidence and acceptance of Bartlett’s evidence was clearly wrong. The weighing of this testimony required a credibility evaluation. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

DID THE DEFENDANT HAVE AN EQUITABLE DEFENSE?

Finally, Doctor’s Hospital asserts an equitable defense to the payment of penalty wages after July 31, 1981. Doctor’s Hospital contends that even if Bartlett was not paid the full amount of unpaid wages due to him on July 31, the record reflects that there was a good faith dispute over the additional amount claimed and that it should not be assessed with penalties after July 31,1981, for failure to pay the disputed sum.

In the recent case of Powell v. Flotation Services, Inc., 413 So.2d 276 (La.App. 3rd Cir. 1982), this court stated:

“LSA-R.S. 23:632 is a penal statute and therefore must be strictly construed. Equitable defenses are available and penalty wages are not to be absolutely imposed irrespective of circumstances. Doucet v. Plantation Manor, Inc., 382 So.2d 984 (La.App. 1st Cir. 1980). In order for an employer to be liable for penalty wages, the employer must have been motivated by bad faith or must be found to have acted in an arbitrary or unreasonable manner. It is only a ‘good faith non-arbitrary defense to liability for unpaid wages; i.e., a reasonable basis for resisting liability’ which will permit the courts to excuse the employer from the imposition of penalty wages. Carriere v. Pee Wee’s Equipment Co., 364 So.2d 555 (La.1978); Letulle v. S & E Oil Co., Inc., 387 So.2d 703 (La.App. 3rd Cir. 1980).”

We do not believe that Doctor’s Hospital has presented a good faith defense to liability for unpaid wages. The hospital’s claim that Bartlett was overpaid (based on the dispute as to the proper compensation for being on call) relates to the next-to-last pay period, not the last pay period. What the hospital contends was an overpayment (the argument rejected by the trial court) was not discovered by the hospital until after Bartlett made written demand on August 5, 1981, to be paid the additional amount owed him. Yet, rather than promptly inform Bartlett of the reason the sum of $6.66 admittedly due to him was being withheld, Doctor’s Hospital instead gave notice to Bartlett in its answer to Bartlett’s petition filed on August 12, 1981, 12 days after he was paid, that on July 31, 1981, Bartlett had been paid all the sums he was due. We do not feel this is a good faith attempt to settle a disputed claim.

The trial court concluded and held Bartlett was not overpaid for call-backs in the next-to-last pay period and was still owed compensation in the amount of $6.66 for being on call. We uphold that ruling. When the plaintiff has proved that wages are owed, and a demand is made therefor, and a refusal to pay them occurs, the penalty provisions of LSA-R.S. 23:632 should be assessed against the defendant. See Jones v. LeBlanc, 263 So.2d 119 (La.App. 1st Cir. 1972).

Furthermore, even if Bartlett was being paid for call-backs contrary to hospital policy, the failure to correct this problem earlier is due to a breakdown of the hospital’s internal communication and bookkeeping procedures, and cannot justify the withholding of sums owed to the employee. See Griffis v. Fischbach and Moore, Inc., 387 So.2d 1225 (La.App. 1st Cir. 1980).

We find the defendant acted arbitrarily in failing to pay the plaintiff his wages as there was no bona fide dispute that the wages were due. Therefore, we affirm the trial court’s judgment imposing the statutory penalties upon the defendant.

However, we amend the trial court’s judgment to award an additional $500.00 attorney’s fees to plaintiff to be taxed as costs to defendant for plaintiff’s defense of this appeal. The judgment in this case which we affirm is subject to a credit for all sums deposited in the registry of the trial court by defendant-appellant and withdrawn by plaintiff-appellee. Costs of this appeal are assessed to defendant.

AMENDED AND AFFIRMED AS AMENDED.

      . LSA-R.S. 23:631 provides, in part:
      “A. Upon the discharge or resignation of any laborer or other employee of any kind whatever, it shall be the duty of the person employing such laborer or other employee to pay the amount then due under the terms of employment, whether the employment is by the hour, day, week, or month, not later than three days following the date of discharge or resignation....”
      LSA-R.S. 23:632 provides:
      “Any employer who fails or refuses to comply with the provisions of R.S. 23:631 shall be liable to the employee either for ninety days wages at the employee’s daily rate of pay, or else for full wages from the time the employee’s demand for payment is made until the employer shall pay or tender the amount of unpaid wages due to such employee, whichever is the lesser amount of penalty wages. Reasonable attorney’s fees shall be allowed the laborer or employee by the court which shall be taxed as costs to be paid by the employer, in the event a well-founded suit for any unpaid wages whatsoever be filed by the laborer or employee after three days shall have elapsed from time of making the first demand following discharge or resignation.”

      . Several other employees of the Respiratory Department terminated their employment for the same reason. One of these, April Crane, also received judgment from the trial court for penalty wages and attorney fees, but her award is not before us on appeal.

      . Counsel for plaintiff admitted at trial that a mistake was made in calculating Bartlett’s “on call” compensation (Tr. 171). The true figure should be approximately $8.57. This sum is found by dividing the $20.00 on call compensation by 7 for the number of days in the week, and multiplying the quotient by 3, the number of days Bartlett was on call. It should be understood that Bartlett was paid $20.00 per week for being “on call” whether or not he was actually called back to the hospital to perform services. If he was called back and answered the call he received additional compensation. As will be discussed later there is a dispute as to whether this compensation was $10.00 per call or $10.00 for every task performed in response to a call.

      .Doctor’s Hospital argued at trial that it owed no penalty wages at all, even up to July 31 when Bartlett was paid, fifteen days after having demanded his wages. This argument has not been briefed for this Court and is considered to be abandoned.


text:
    Sandy ALLBRITTON, Plaintiff-Appellee, v. Linda TROTTIE, Defendant-Appellant.
    No. 8837.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1982.
    George A. Guidry, Alexandria, for defendant-appellant.
    Sandy Allbritton, in pro. per.
    Before GUIDRY, STOKER and LA-BORDE, JJ.
   LABORDE, Judge.

Appellant, Linda Trottie, brings this suit to annul a consent judgment granted against her in favor of appellee, Sandy All-britton, alleging that the consent judgment is invalid because the compromise and settlement reached by the parties was never reduced to writing as required by LSA-C.C. art. 3071. From a judgment denying her demand for nullification of judgment, Mrs. Trottie appeals. We hold that Linda Trot-tie’s allegation, even if true, does not fall under one of the grounds for an action of nullity set forth in Code of Civil Procedure Articles 2001 through 2006. These grounds being exclusive, we affirm the lower court’s decision.

Sandy Allbritton filed suit in City Court against Linda Trottie seeking $500 in damages arising out of an automobile accident between the parties on September 30, 1980. At the trial, plaintiff, acting as her own attorney, attempted to introduce into evidence a copy of an appraisal which set forth damages to her automobile. Counsel for Linda Trottie objected and the objection was sustained. In his written reasons for judgment, the judge stated that following the sustaining of the objection “the Court advised Defendant [sic] that it would be necessary to have the mechanic personally appear in Court for this evidence.” Continuing, the judge stated, “At this time, it is the Court’s recollection that counsel for Defendant asked to discuss the matter with Plaintiff. This was done. Following this discussion, plaintiff said, ‘we agree on $250’ or words to that effect.” On that basis, the trial court rendered judgment on September 17, 1981, in favor or Sandy Allbritton and against Linda Trottie in the sum of $250.

Sandy Allbritton had Linda Trottie’s wages garnished in order to satisfy her judgment. On October 30, 1981, Linda Trottie instituted the present suit seeking to have the September 17, 1981, judgment nullified on the basis that it was rendered without consent of the parties or litigation of the issues. Linda Trottie appeals the denial of her demand for nullification of the previous judgment.

Articles 2001 through 2006 of the Code of Civil Procedure set forth grounds for an action of nullity. These grounds are the exclusive grounds for nullity of judgment. Southern Wheel & Rim Service, Inc. v. Champion Machine Works, Inc., 283 So.2d 328 (La.App. 4th Cir. 1973). Failure to reduce a compromise and settlement to writing is not one of the exclusive grounds for nullity of judgment. Further, the court in Southern Wheel & Rim Service, Inc., supra, stated: “An action for nullity cannot be substituted for a defense on the merits or for a timely appeal.” See also Levy v. Stelly, 254 So.2d 665 (La.App. 4th Cir. 1971); writ refused, 260 La. 403, 256 So.2d 289 (1972).

For these reasons the judgment appealed from is affirmed at appellant’s cost.

AFFIRMED.


author: FORET, Judge.

text:
    SOUTHERN AMERICAN INSURANCE COMPANY, Plaintiff-Appellant, v. Ronald DOBSON, Defendant-Appellee.
    No. 8838.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1982.
    Mayer, Smith & Roberts, Mark Goodwin and A. J. Gregory, Jr., Shreveport, Stafford, Stewart & Potter, Russell L. Potter, Alexandria, for plaintiff-appellant.
    Thomas & Dunahoe, Edwin Dunahoe, Natchitoches, for defendant-appellee.

      Before CULPEPPER, FORET and DOU-CET, JJ.
   FORET, Judge.

This is an appeal from two actions for declaratory judgments which were consolidated for trial as they both raise the identical issue of whether a commercial umbrella liability insurance policy (umbrella policy) or a commercial umbrella excess liability insurance policy (umbrella excess policy) are automobile liability insurance policies such that the insurers issuing these types of policies are required, under the provisions of LSA-R.S. 22:1406 (specifically LSA-R.S. 22:1406(D)(l)(a)), to offer uninsured motorist protection. The trial court held that these types of policies were automobile liability insurance policies and, thus, their issuers were required to offer uninsured motorist protection. We reverse.

Southern American Insurance Company (Southern) and Northeastern Fire Insurance Company of Pennsylvania (Northeastern) are plaintiffs in the above mentioned actions for declaratory judgments that were brought against a common defendant, Ronald Dobson (Dobson). Southern had issued an umbrella policy and Northeastern had issued an umbrella excess policy to the Dob-son Pulpwood Company, Inc., the named insured under both policies. The limit of liability set by Southern’s policy was $1,000,000.00 above the limits of liability of the underlying insurance policies. The limit of liability set by Northeastern’s policy was $2,000,000.00 in excess of the limits of liability set by the Southern policy and the underlying insurance policies.

Dobson was severely injured when the vehicle he was operating, which was owned by the Dobson Pulpwood Company, Inc., was struck by a vehicle owned and operated by Randy L. Walker (Walker), who was underinsured. Aetna Casualty and Surety Company (Aetna) had issued an automobile liability insurance policy to the Dobson Pulpwood Company, Inc., which provided for uninsured motorist coverage up to its policy limit of $100,000.00. As a result of the accident, Aetna paid its policy limit to Dobson.

Dobson instituted a tort action in the Tenth Judicial District Court, Natchitoches Parish, Louisiana, on September 13,1978, in which the original named defendants were Aetna and Southern. Apparently, Northeastern was also named as a defendant to that action in the second supplemental and amending petition filed therein. In essence, Dobson alleged that both Southern and Northeastern had issued automobile liability insurance policies within the meaning of LSA-R.S. 22:1406(D)(l)(a) and that the policies statutorily provided uninsured motorist coverage up to the limits of bodily injury liability provided therein. In response to their being named defendants to Dobson’s tort action, Southern and Northeastern filed these actions for declaratory judgments.

LSA-R.S. 22:1406(D)(l)(a) provides, in pertinent part:

“D. The following provisions shall govern the issuance of uninsured motorist coverage in this state.
(l)(a) No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, in not less than the limits of bodily injury liability provided by the policy, under provisions filed with and approved by the commissioner of insurance, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom; provided, however, that the coverage required under this Subsection shall not be applicable where any insured named in the policy shall reject in writing the coverage or selects lower limits.”

Plaintiffs contend that the trial court erred in finding that the policies issued by them were automobile liability insurance policies for purposes of LSA-R.S. 22:1406(D)(l)(a). They point to the testimony given by Robert S. Felton, who was accepted by the trial court as an expert on the contents and interpretations of contracts of uninsured motorist insurance.

Dr. Felton explained the nature of the policies issued by plaintiffs and the purposes served by each. He testified, (1) that an umbrella policy does two things. First, it provides for a broad spectrum of coverages for such things as general liability, professional liability, automobile liability, products liability, workmen’s compensation liability, etc. Second, it provides higher limits of liability in each coverage area, which coverage being effective once the limits of liability of the underlying insurance policies are exhausted; (2) that an umbrella excess policy simply extends the limits of liability provided for in an umbrella policy and those of the underlying insurance policies. It provides coverage once the limits of liability of the umbrella policy and the underlying insurance policies have been exhausted.

Dr. Felton’s opinion was that these types of policies are not automobile liability insurance policies. He noted that these policies provide coverage for the insured’s legal liability to third parties, while automobile liability insurance policies provide for first party coverage such as uninsured motorist coverage, medical payments coverage, and physical damage or collision coverage, in addition to coverage for the insured’s legal liability to third parties. He also noted that the policies at issue require the party obtaining them to have underlying insurance policies providing limits of liability up to a certain amount for each area of coverage, while automobile liability insurance policies do not require this.

We note that both policies contain language that specifically limits their coverage to those amounts for which the insured may be legally liable to another. There is no premium charged for uninsured motorist coverage, and the evidence indicated that such coverage was unobtainable from plaintiffs under these policies.

Like the trial court and the parties, we are unable to find any jurisprudence of this State pertaining to the particular issue before us. However, plaintiffs point to two cases from other jurisdictions where the issue has been decided in a manner favorable to their position. In Trinity Universal Insurance Company v. Metzger, 360 So.2d 960 (Ala.1978), the Supreme Court of Alabama had before it a case almost identical on its facts to the one before us. Trinity noted the distinction between automobile liability insurance policies and umbrella policies, on page 962, where the court stated:

“Automobile liability policies and motor vehicle liability policies insure against the risk of loss through the operation of specific automobiles. An umbrella policy, on the other hand, is fundamentally excess insurance designed to protect against catastrophic loss. Before an umbrella policy is issued, a primary policy (the “underlying policy”) must be in existence and this primary policy must by law provide uninsured motorist coverage. The umbrella policy assumes a risk of much less frequent occurrence, i.e., the risk of judgments in excess of primary policy limits, and accordingly carries premiums which reflect the lesser magnitude of this risk. The umbrella policy issued by Trinity Universal is an inherently different type of insurance from an automobile or motor vehicle liability policy, and consequently does not come within the scope of the uninsured motorist statute.
To reiterate, we simply hold today that an “umbrella policy,” clearly intended as excess insurance to protect against catastrophic judgments and issued as supplementary insurance to existing primary policies themselves sufficient to meet the requirements of the law, is neither an automobile liability nor motor vehicle liability policy within the scope of the uninsured motorist statute, even though one of the primary policies may itself insure automobiles.”

Plaintiffs also cite O’Hanlon v. Hartford Accident & Indemnity Company, 639 F.2d 1019 (C.C.A. 3rd Cir. 1981), where the court had occasion to interpret a Delaware statute, similar to LSA-R.S. 22:1406(D)(l)(a), requiring issuers of automobile liability insurance policies to offer uninsured motorist coverage. OHanlon also determined that umbrella policies were not the same as automobile liability insurance policies for purposes of such statutes. On the other hand, defendant cites two cases from Florida which he contends support his position. These cases are: Aetna Casualty & Surety Co. v. Green, 327 So.2d 65 (Fla. 1st DCA 1976), writ denied 336 So.2d 1179 (Fla.1976); and, Cohen v. American Home Assurance Company, 367 So.2d 677 (Fla. 3rd DCA 1979). We have reviewed these cases and find that they do support defendant’s position. However, we disagree with them.

It is clear that LSA-R.S. 22:1406(D)(l)(a) refers only to automobile liability insurance policies and no other types of policies. LSA-R.S. 22:1406(D)(1)(b) provides:

“(b) Any insurer delivering or issuing an automobile liability insurance policy referred to herein shall also permit the insured, at his written request, to increase the coverage applicable to uninsured motor vehicles provided for herein to any amount.” (Emphasis ours.)

There are other indications that LSA-R.S. 22:1406(D)(l)(a) refers only to automobile liability insurance policies, e.g., LSA-R.S. 22:1406(DXl)(c) and LSA-R.S. 22:1406(D) (6).

It is our opinion that policies of the type issued by plaintiffs herein are not automobile liability insurance policies for purposes of LSA-R.S. 22:1406(D)(l)(a) and, therefore, plaintiffs were not required to offer defendant uninsured motorist coverage.

For the above and foregoing reasons, the judgment of the trial court is reversed.

All costs of this appeal, and in the trial court, are assessed against defendant-appel-lee.

REVERSED.

      . These two consolidated actions are: Southern American Ins. Company v. Ronald Dobson, # 48,884 A, 10th Judicial District Court, Natchitoches Parish, La.; and Northeastern Fire Ins. Co. of Pennsylvania v. Ronald Dobson, # 48,897, 10th Judicial District Court, Natchitoches Parish, La. A separate judgment is this date rendered in Northeastern Fire Ins. Co. of Pennsylvania v. Dobson, 415 So.2d 644, La.App.

      . Defendant referred to a third case, Aetna Casualty & Surety Co. v. Fulton, decided by the 4th District Court of Appeal of Florida, on August 16, 1978, which supports his position. An incomplete copy of the decision in that case was attached to defendant’s brief filed in this Court. However, no citation was provided. At oral argument, defendant cited another Florida case in support of his position, i.e., Home Insurance Co. v. Mendelson, 367 So.2d 1071 (Fla. 3rd DCA 1979).


text:
    NORTHEASTERN FIRE INSURANCE COMPANY OF PENNSYLVANIA, Plaintiff-Appellant, v. Ronald DOBSON, Defendant-Appellee.
    No. 8839.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1982.
    Mayer, Smith & Roberts, Mark Goodwin and A. J. Gregory, Jr., Shreveport, Stafford, Stewart & Potter, Russell L. Potter, Alexandria, for plaintiff-appellant.
    Thomas & Dunahoe, Edwin Dunahoe, Natchitoches, for defendant-appellee.
    Before CULPEPPER, FORET and DOU-CET, JJ.
   FORET, Judge.

For the reasons stated in the companion case of Southern American Insurance Company v. Dobson, 415 So.2d 641 (La.App. 3 Cir. 1982), in which a separate decision is being rendered by us this day, the judgment of the district court is reversed.

All costs of this appeal, and in the trial court, are assessed against defendant-appel-lee.

REVERSED.


author: GUIDRY, Judge.

text:
    Sherry JOUBERT, Plaintiff-Appellee, v. BUSINESS INSURANCE LIFE OF AMERICA, et al., Defendants-Appellants.
    No. 8841.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1982.
    Conner, Martinez & Miles, William W. Miles and Joseph P. Williams, Jr., Metairie, for defendants-appellants.
    Wm. Henry Sanders, Jena, for plaintiff-appellee.
    Before GUIDRY, STOKER and LA-BORDE, J.
   GUIDRY, Judge.

This is a suit to recover medical expense benefits due under a hospitalization insurance policy issued to plaintiff, Sherry Jou-bert, by the defendant, Business Insurance Life of America (hereafter BILA). Additionally, plaintiff sought penalties and attorney’s fees pursuant to LSA-R.S. 22:657(A). The trial court rendered judgment in favor of plaintiff and against BILA awarding Joubert $2,306.14 in insurance benefits, $2,306.14 in penalties under LSA-R.S. 22:657(A), and $2,000.00 in attorney’s fees. Defendant appeals from the trial court’s judgment, only insofar as it awarded plaintiff penalties pursuant to LSA-R.S. 22:657(A), contending that penalties should have been awarded pursuant to the provisions of LSA-R.S. 22:658. In brief, plaintiff urges that defendant’s appeal is frivolous, and as such, she is entitled to an award for frivolous appeal. Since plaintiff-appellee has not answered the instant appeal, we do not consider this issue.

The sole issue on appeal is whether penalties should be awarded to the plaintiff pursuant to LSA-R.S. 22:657(A) which governs so-called “health and accident contracts” or under LSA-R.S. 22:658 which pertains to insurance policies other than life and health and accident contracts.

We considered this very issue in two recent cases. Relying upon Rudloff v. Louisiana Health Services and Indemnity Company, 385 So.2d 767 (La.1980) wherein our Supreme Court, on rehearing, specifically overruled its prior holding in Tabb v. Louisiana Health Services and Indemnity Company, 361 So.2d 862 (La.1978), our court in Lucito v. Louisiana Hospital Service, Inc., d/b/a Blue Cross of Louisiana, 392 So.2d 700 (La.App. 3rd Cir. 1980) and, most recently in Thompson v. Business Insurance Life of America (the defendant in the instant case), 413 So.2d 331 (La.App. 3rd Cir. 1982) held that the definition of health and accident policies under Louisiana law includes hospitalization policies, thus, the assessment of penalties in cases involving hospitalization insurance is governed by LSA-R.S. 22:657(A).

For the reasons assigned in the aforecited cases, the judgment appealed from is affirmed. All costs of this appeal are assessed to the defendant, Business Insurance Life of America.

AFFIRMED.


text:
    ADAM’S LEASING COMPANY, INC., Plaintiff-Appellee, v. John R. HICKMAN, Defendant-Appellant.
    No. 8845.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1982.
    John R. Hickman, Alexandria, for defendant-appellant.
    James T. Lee, Marksville, for plaintiff-ap-pellee.
    Before GUIDRY, STOKER and LA-BORDE, JJ.
   GUIDRY, Judge.

By written contract dated December 18, 1979 plaintiff leased to defendant one Savin 780 Copier and Jeffsteel Console Stand for a term of sixty (60) months beginning January 2,1980. The agreement provided for a monthly rental of $219.09 and further provided for acceleration of all rental payments in the event of the lessee’s failure to timely pay the rent due. Defendant made five monthly rental payments and then defaulted whereupon plaintiff notified defendant in writing of his default in payment and of its intention to accelerate all rental payments. Plaintiff did not immediately file suit following delivery of this letter but sought collection from defendant through the collection arm of Dun & Bradstreet. The latter company was successful in securing a $1500.00 payment from defendant in October of 1980. Thereafter defendant made no further rental payments and this suit was instituted on March 19, 1981 for the rental installments then due and unpaid and for those that had not matured plus reasonable attorney’s fees.

Defendant, in answer to plaintiff’s petition, admitted execution of the lease agreement in all its terms, but averred that by a subsequent verbal agreement entered into by him and an “individual identifying himself as being an agent of Adam’s Leasing Company, Inc. and Dunn and Bradstreet”, it was agreed that the lease agreement would be rescinded and the matter fully settled by the defendant’s purchase of the equipment for the sum of $6,000.00, $1500.00 of which was paid in October of 1980 leaving a balance due plaintiff in the sum of $4500.00.

At trial the trial judge sustained objection to testimony offered by defendant to establish the subsequent verbal agreement but permitted its introduction into the record as an offer of proof pursuant to LSA-C.C.P. Article 1686. In ruling on the admissibility of this evidence the trial judge stated as follows in his written reasons for judgment:

“The defendant claims that a subsequent agreement was entered into, but the court has ruled out that testimony as an attempt to vary the terms of the written contract by parole evidence and in some instances it was an attempt to negotiate of (sic) settlement, which is also inadmissible testimony, but even considering the testimony that went in under a pro-offer (sic) of proof I don’t think the defendant has borne his burden of proving that a new or a subsequent, or amendment to the original contract was entered into.”

Judgment was rendered in favor of the plaintiff for the sum of $10,957.80 together with legal interest from date of judicial demand and attorney’s fees in the amount of $1000.00. Defendant appeals. Plaintiff has neither appealed nor filed answer to this appeal.

Appellant assigns as error the refusal of the trial judge to admit and consider the evidence offered by him tending to establish the alleged subsequent verbal agreement abrogating the written lease agreement of December 18, 1979. This is appellant’s only specification of error.

We agree that the trial court erred in refusing to receive and consider evidence offered by defendant tending to establish a subsequent agreement of the parties allegedly rescinding the earlier lease agreement. It is well settled that parole evidence is admissible to prove a subsequent verbal agreement modifying or even abrogating a written contract, if the contract is not one required by law to be in writing. Salley v. Louviere, 183 La. 92, 162 So. 811 (1935); Southern Fleet Leasing Corp. v. Brown, 257 So.2d 819 (La.App. 1st Cir. 1972); Grossie v. Lafayette Construction Company, Inc., 306 So.2d 453 (La.App. 3rd Cir. 1975), writ denied, 309 So.2d 354. A lease may be by either written or verbal contract. C.C. Article 2683.

Although the trial court erred as aforestated, we determine that the result reached is correct in that consideration of the evidence offered by defendant as an offer of proof fails to establish by a preponderance of the evidence that a subsequent verbal agreement abrogating the lease was entered into by plaintiff and defendant, or any authorized agent of the former. Plaintiff denies any subsequent verbal agreement rescinding or amending the lease contract. Although defendant testified that he and a Mr. Rogers, an employee of Dun and Bradstreet, reached such an agreement he failed to establish that Mr. Rogers or Dun and Bradstreet had authority from plaintiff to enter into such an agreement. Mr. Rogers did not testify and there is no other evidence in the record to support or corroborate defendant’s testimony.

For the above and foregoing reasons the judgment of the trial court is affirmed at appellant’s cost.

AFFIRMED.

      . Although the trial judge refused to allow introduction of the evidence in question he did state in his reasons for judgment that such evidence failed to establish that “a new or a subsequent, or amendment to the original contract was entered into.”