text:
    CITIZENS BANK & TRUST CO. v. CONSOLIDATED TERMINAL WAREHOUSE, INC.; W.R. Thompson, Jr. and Scaffolding Rental & Erection Service, Inc.
    No. CA 83 1210.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1984.
    Rehearing Denied Dec. 28, 1984.

      Stephen P. Strohschein, Baton Rouge, for plaintiff-appellee Citizens Bank & Trust Co.
    Scott H. Crawford, Baton Rouge, for defendants-appellees Consolidated Terminal Warehouse, Inc. and W.R. Thompson, Jr.
    Leonard L. Kilgore, III, Baton Rouge, for defendant-appellant Scaffolding Rental & Erection Service, Inc.
    Before GROVER L. COVINGTON, C.J., and LOTTINGER and JOHN S. COVING-TON, JJ.

       Judge John S. Covington of the 19th Judicial District Court has been duly elected to this court; that term begins on January 1, 1985. In the interim, the Supreme Court has appointed him to this court pro tempore.

   LOTTINGER, Judge.

This is a suit by Citizens Bank & Trust Company of Plaquemine against Consolidated Terminal Warehouse, Inc., W.R. Thompson, Jr., and Scaffolding Rental & Erection Service, Inc. to collect a number of promissory notes and debts represented by invoices which were pledged to secure those notes. The bank’s claims against Consolidated Terminal Warehouse, Inc. and W.R. Thompson were settled by summary judgment in favor of the bank. The bank proceeded to trial against Scaffolding Rental & Erection Service, Inc. and obtained a judgment in its favor from the trial court. Scaffolding Rental & Erection Service, Inc. has perfected this appeal.

FACTS

Mr. W.R. Thompson, Jr. (Thompson) was one of several stockholders in King Lumber Industries, Inc. (King Lumber). King Lumber began selling scaffolding materials to Scaffolding Rental & Erection Service (Scaffolding) on open account, beginning sometime in 1977. King Lumber had a banking relationship with Citizens Bank & Trust Co. (Citizens) whereby King Lumber would accumulate a number of invoices from sales to Scaffolding and pledge them to Citizens as security for a promissory note.

In 1980, King Lumber began having financial difficulties. A new company, King Hardwood Imports, Inc. (King Hardwood), of which Thompson was also a shareholder, purchased the balance of King Lumber’s inventory and also acquired Scaffolding’s credit account. King Hardwood continued to sell materials to Scaffolding and continued to pledge the invoices to Citizens in the same manner as King Lumber had done.

In dealing with both King Lumber and King Hardwood, Scaffolding would make payments on its account directly to Citizens. In all of these dealings, Thompson was the sole representative of both King companies.

In July of 1981, trade between Scaffolding and King Hardwood halted and Thompson began operating with a new company called Consolidated Terminal Warehouse, Inc. (Consolidated), which was unrelated to the King companies. Mr. Thompson was a fifty percent shareholder, and the sole sales representative of the company in dealings with Scaffolding.

Consolidated did not initially have enough capital to maintain a sufficient inventory to service the needs of Scaffolding, so Thompson approached Scaffolding with a proposition. On July 20, 1981, Scaffolding advanced $60,000 to Consolidated to be used to purchase inventory to service Scaffolding’s needs.

As Scaffolding purchased materials from Consolidated, Thompson would type out invoices and pledge them to Citizens as security for promissory notes in the same manner as had been done by the King companies. In December of 1981, Scaffolding paid some of the invoices directly to Consolidated, leaving a balance of $62,-296.74. When Citizens attempted to collect this amount, Scaffolding sought to offset the $60,000 advance to Consolidated against the pledged invoices.

Thereafter, Citizens filed suit to collect this amount from Scaffolding, as well as the outstanding promissory notes from Thompson and Consolidated. In the meantime, Consolidated began having financial difficulties and Thompson began selling for Kennison Forest Products (Kennison). Thompson and Scaffolding entered into an agreement whereby Scaffolding would purchase products from Kennison through Consolidated as agent for the sale. Any commissions due Thompson or Consolidated were to be deducted from the purchase price and applied to the $60,000 due Scaffolding.

At trial, Citizens obtained a summary judgment in its favor against Consolidated and Thompson. Citizens sought to execute this judgment by garnishing the commissions due Consolidated for sales of Kenni-son products and retained by Scaffolding.

After trial on the merits, judgment was entered in favor of Citizens and against Scaffolding on both the principal demand and the garnishment proceedings, which had been challenged by Scaffolding. Scaffolding has perfected this appeal to challenge the validity of the court’s ruling and asserts that the trial court erred:

(1) in finding that the invoices had been validly pledged to Citizens;
(2) in finding that the pledges were not subject to the prior agreement between Scaffolding and Consolidated, because a pledgee can have no greater right in the thing pledged than the pledgor possessed;
(3) in finding that the bank was an “innocent party” in regards to the transactions involved;
(4) in denying Scaffolding’s motion for directed verdict;
(5) in finding that Scaffolding had a duty to inform the bank of the $60,000 alleged advance; and
(6)in finding that Scaffolding had in its possession any claim or credit of Consolidated or Thompson which was subject to seizure.

I

In its first assignment of error, Scaffolding contends that the trial judge erred by holding that the invoices were validly pledged. Scaffolding contends that a written act of pledge was required and that written notice to Scaffolding, as debtor of the pledged debt, was also required.

As goods were sold by Consolidated to Scaffolding Mr. Thompson would type invoices for the materials which were sold and delivered. Thompson would bring these invoices to Scaffolding for initialing as an acknowledgment of receipt of the materials listed. After a number of these invoices would accumulate, Thompson would prepare a promissory note for the aggregate amount of the invoices, and take the invoices and note to Citizens. Citizens would loan Thompson the amount of the note and accept the invoices as security for the loan. As the invoices would become due, Citizens would call Scaffolding for verification of the invoices and mail two copies of each to Scaffolding. This is the same manner in which the invoices were pledged to Citizens by both King companies except for the initialling and verification calls, which were not utilized when the King companies pledged the invoices.

On the bottom of each invoice appeared the following language:

For value received, we hereby pledge and convey the within invoice to the Citizens Bank & Trust Co., Plaquemine, La., as collateral attached to my note with full power and authority for and in my name to collect the amount of said invoice and you are hereby requested to remit to them direct.

CONSOLIDATED TERMINAL WAREHOUSE, INC.

(signed/W.R. Thompson, Jr.)

In addition to this, on the back of each note appeared language that the note was secured by the pledge of Scaffolding’s invoices and also included a list of the numbers of the invoices pledged.

To have a proper understanding of the law in this area, we must separate the requirements for the validity of a pledge from those pertaining to the liability of the debtor of a pledged debt to the pledgee of that debt.

In dealing with the formal requirements of a pledge, the Civil Code and its ancillaries divide the pledge of movables into three categories: the pledge of corporeal movables (La.Civ.Code arts. 3152, 3154); the pledge of incorporeal movables evidenced by a written instrument (La.Civ.Code arts. 3153, 3155, and 3158); and the pledge of incorporeal movables not evidenced by a written instrument. (La.R.S. 9:4321 et seq.)

Scaffolding contends that the pledge in this case was that of an incorporeal movable not evidenced by a written instrument, and as such, a written act of pledge was required; that the invoices were merely billing reminders and account statements and did not constitute written evidence of the pledged debt; and that what actually was pledged was the underlying debt, which is not evidenced by a written instrument. Citizens, on the other hand, claims that the invoices constitute written instruments and no written act of pledge was required.

For the following reasons we need not decide whether the invoices in this case constitute written instruments as contemplated by the Civil Code.

Neither the formal requirements for the pledge of incorporeal movables evidenced by a written instrument nor that of an incorporeal movable not evidenced by a written instrument require a written act of pledge. The author in Louisiana Legislation of 1938, 1 La.L.Rev. 80, 110 (1938), in analyzing the law of pledge after the enactment of La.R.S. 9:4321-4324, summarized the formalities required for the pledge of corporeal and incorporeal property as follows:

1. The pledge of corporeal property must be made by an act of pledge containing the amount of the debt to be secured, and an adequate description of the property given in pledge, in addition to actual delivery of the thing pledged. La.C.C. art. 3158.
2. Incorporeal rights evidenced by written instruments such as promissory notes, bills of exchange, and the like are pledged by delivery only, no act of pledge being necessary, and should these rights be contained in instruments not negotiable, notice to the debtor thereof is necessary. La. C.C. art. 3158.
3. Incorporeal rights not evidenced by written instruments may be pledged by act of pledge in which shall be stated the amount of the debt to be secured and an adequate description of the right pledged. No delivery of the right is necessary, for none can be made, there being no written evidence thereof. La. Act 95 of 1938. (La.R.S. 9:4321-4324).

The formal requirements for pledging an incorporeal movable not evidenced by a written instrument are governed by La.R.S. 9:4321-4324. There exists no statutory requirement for a written act of pledge, and this type of right can be pledged “in the same manner as other property.” La.R.S. 9:4321. Other movable property, whether corporeal or incorporeal and evidenced by a written instrument, is susceptible of oral pledge, and a written act of pledge is not required. La.Civ.Code arts. 3133 and 3158; State v. Ackal, 290 So.2d 882 (La.1974); Davis v. Davis, 50 So.2d 647 (La.App. 2nd Cir.1951); Sambola v. Fandison, 178 So. 276 (La.App. Orleans Cir.1938). The reference to “other property” in La.R.S. 9:4321 must refer to the pledge of corporeal movables because there exists no written instrument susceptible of delivery, as in the pledge of an incorporeal right evidenced by a written instrument. As such, to perfect a valid pledge of an incorporeal not evidenced by a written instrument, what is required is an act of pledge, either oral or written. The act of pledge in this case, being the agreement between Citizens and Consolidated, meets these requirements as it was clear that the invoices were being pledged for the amount of the promissory note.

A pledge of an incorporeal .evidenced by a written instrument is valid upon delivery of the written instrument to the pledgee without further formality, provided that, where the pledge is of an instrument not negotiable in form, the debtor must be notified in writing. La.Civ.Code arts. 3158 and 3160. Thus, a written act of pledge is not required to perfect a pledge of this type of right. The only requirements are delivery of the writing to the pledgee and notice to the debtor, if the instrument is non-negotiable. As will be set out below, we find that the writing on the invoices in the instant case constitutes sufficient notice to the debtor, Scaffolding, and since the invoices were delivered to Citizens, these requirements were met.

As can be seen, regardless of whether the invoices constitute a writing or not, a written act of pledge was not required and a valid pledge was perfected.

However, written evidence of the pledge is required for the pledgee’s privilege to be effective against third parties. La.Civ. Code art. 3158. Such written evidence must state the amount of the debt to be secured, and the nature of the thing pledged, id. This does not mean that the act of pledge must be in writing, only that the pledge be proved by some written evidence which states the amount of the debt and describes the thing pledged. Madding v. Hoover, 44 So.2d 184 (La.App. 2nd Cir. 1950).

It is questionable whether “third persons” as used in Article 3158 includes the debtor of a pledged debt or claim, such as Scaffolding in the present ease. Rather, Articles 3157 and 3158 deal with the pledgee’s privilege and preference as to other creditors of the pledgor. Article 3157 specifically limits itself to the privilege of the creditor as against other creditors and Article 3158 further defines this privilege. Further support for this conclusion can be found in the fact that special provisions provide protection to the debtor in the form of written notice of the pledge. La.Civ.Code arts. 3158 (paragraph 2) and 3160; La.R.S. 9:4323.

Regardless of this, we conclude that the pledge language typed on each invoice, as provided above, as well as the language on the back of each promissory note, which provided a list of the invoices pledged, as well as the amounts of each invoice, and the total amount secured by the pledge, adequately meets the requirements of Article 3158. It is clear from the writings that what was pledged were the invoices and the total amount of those invoices was the amount of the secured debt.

As can be seen from the above, a valid pledge was perfected as no written act of pledge was required.

The second aspect of this assignment of error concerns the affect of the pledge on Scaffolding as debtor of the pledged claims, and the sufficiency of the written notice of the pledges provided to Scaffolding. When pledging an incorporeal claim on another person, whether the claim be evidenced by a written instrument or not, the debtor of the claim must be given written notice of the pledge to be held liable on the claim. La.Civ.Code arts. 3158 and 3160; La.R.S. 9:4323. The only exception to this rule is where the claim is represented by a negotiable instrument, in which instance, the pledge is perfected upon delivery of the instrument to the pledgor and no notice is required. La.Civ.Code art. 3158.

Scaffolding contends that the language on the invoices, as provided above, was insufficient notice, and a cover letter or special written notice was required.

As can be seen from the language, it clearly states that the invoices were pledged to Citizens and that Scaffolding was requested to pay the amounts due under the invoices to Citizens instead of Consolidated.

Although not all of the invoices were initialled, Scaffolding employees had initialled the majority of these invoices, and two copies of each invoice were mailed to Scaffolding as they became due. These facts convince us that this language constituted adequate notice to Scaffolding, especially when also considering the number of invoices in which Scaffolding came into contact (in excess of thirty) and the previous dealings between Scaffolding and the two King corporations, also represented by Thompson, which handled the invoices in the same manner as Consolidated.

For these reasons we find that a valid pledge was perfected and that Scaffolding received adequate notice of the pledge of its invoices.

II

In this second assignment of error, Scaffolding alleges that the trial judge committed error in finding that the pledge was not subject to the prior agreement between Scaffolding and Consolidated regarding the $60,000 advance to Consolidated. In support of its allegation, Scaffolding contends that the $60,000 advance was to be treated as a credit for future purchases from Consolidated, and Consolidated could not pledge to Citizens the right to collect this money, as Consolidated had no right to do so itself. In short, Scaffolding alleges that Consolidated could not pledge a greater right than it had.

In his oral reasons for judgment, the trial judge found that, based on the past dealings between the parties, the parties intended that the same situation which had existed in regards to the King companies, Scaffolding, and Citizens would continue in regards to Consolidated. Based on this intent, and the manner in which the $60,000 was handled by Scaffolding in its accounting system, the trial judge rejected Scaffolding’s argument that the $60,000 was to be treated as a credit for future purchases, and found that the parties intended that the invoices be pledged in the same manner as had been done in the past. By rejecting this argument, the trial judge, without expressly providing so, found the $60,000 to be a loan by Scaffolding to Consolidated. Since this was a loan, there was no agreement which could affect the pledge of the invoices to Citizens. This holds true as well for Scaffolding’s argument that this case is analogous to an assignment of accounts receivable where such an assignment would have been subject to any previous agreements between Scaffolding and Consolidated. La.R.S. 9:3108. As this was a loan, there was no agreement which would affect either a pledge or an assignment of accounts receivable.

These findings of fact by the trial judge are neither manifestly erroneous nor clearly wrong.

Scaffolding also contends that the evidence regarding the transactions involving the King companies is irrelevant and immaterial to the transactions involving Consolidated. Whether evidence is relevant or not is within the discretion of the trial court and its ruling will not be disturbed absent a clear abuse of discretion. Ketcher v. Illinois Central Gulf Railroad Company, 440 So.2d 805 writ denied 444 So.2d 1220, 444 So.2d 1222 (La.1984). Our review of the record convinces us that the transactions involving the King companies were relevant and probative in establishing the intent and understandings of the parties in regards to Consolidated. The trial judge did not abuse his discretion.

At this point we deem it necessary to discuss and distinguish this case, involving the pledge of accounts receivable, from a situation involving an assignment of accounts receivable pursuant to the Assignment of Accounts Receivable Act found in La.R.S. 9:3101-9:3111.

Under the Assignment of Accounts Receivable Act, a properly perfected assignment, executed in conformity with the strict requirements of the Act, operates as an “assignment, sale or pledge” of the accounts receivable so assigned. La.R.S. 9:3102 A. The assignee of a properly perfected assignment of accounts receivable is given a “superior claim to the accounts assigned and their proceeds” as against creditors who subsequent to the assignment perfect their interest or security in the account or its proceeds. La.R.S. 9:8102 C. This security interest distinguishes this type of assignment from an assignment of other rights or credits which create no security interest, but result in a transfer of title between the assignor and assignee. Scott v. Corken, 231 La. 368, 91 So.2d 569 (1956).

“Assignment” is defined in the act as including any “assignment, sale, or pledge ... of any account and its proceeds... ”. La.R.S. 9:3101(2). La.R.S. 9:3109 A provides that the Assignment of Accounts Receivable Act is not the exclusive method of “assigning” accounts receivables, and the act does not have the effect of repealing any other authorized method. One other such method of “assigning” accounts receivable, as intended in the act, is a valid pledge perfected pursuant to the rules governing pledge. Accounts receivable, being incorporeal movables, can be pledged in the same manner as any other incorporeal movable, in addition to being subject to assignment under the Assignment of Accounts Receivable Act. As we found above, a valid pledge was perfected in this case. There was no attempt to assign the debts owed by Scaffolding in conformance with the Accounts Receivable Act.

Ill

In its next assignment of error, Scaffolding contends that the trial judge erred by finding and basing his decision on the honesty of Citizens throughout the transactions between the parties.

While the trial judge did mention that it was his opinion that the bank was an innocent party in these dealings, this was not the basis of his decision. The judge’s decision, as supported by the record, was based on the law of pledge, the intent of the parties, the past relationship between the parties and the King companies, and his rejection of the argument that the $60,000 was to be treated as an advance.

IV

The next issue raised by Scaffolding is whether the trial court erred in denying Scaffolding’s motion for directed verdict after Citizens submitted its case in chief. The motion was based on the contention that Citizens had failed to establish the existence and amount of the debt which was secured by the pledged invoices. Furthermore, as the argument goes, since the principal obligation was not established, the pledge, being accessory to the principal obligation, cannot exist alone.

According to the provisions of La. Code Civ.P. art. 1810 , in a non-jury trial, after the plaintiff has completed the presentation of his evidence, any party may move for a dismissal of the action as to the plaintiff on the ground that upon the facts and law, the plaintiff has shown no right to relief. In non-jury cases, the standard for the trial judge in ruling on a motion for directed verdict is to weigh and evaluate all of the evidence and render a decision based on the preponderance of the evidence. Semien v. PPG Industries, Inc., 413 So.2d 956 (La.App. 3rd Cir.1982); Bryan v. Varnado, 394 So.2d 1321 (La.App. 1st Cir. 1981).

Furthermore, the trial judge is granted much discretion in determining whether or not a motion for directed verdict should be granted. Chandler v. Fuqua, 420 So.2d 1348 (La.App. 3rd Cir.1982); Burrell v. Kirkpatrick, 410 So.2d 1255 (La.App. 3rd Cir.1982).

At trial of the instant case, Citizens introduced the promissory notes which were secured by the pledged invoices, as well as the invoices themselves. Some of the notes were marked paid and some were not. However, Citizens offered no testimony or other evidence to establish the existence of any outstanding debt or the amount of any indebtedness due by Consolidated. Nevertheless, we are of the opinion that the notes themselves, in addition to the bank employees’ testimony regarding the perfection of the notes and the pledge of the invoices, was sufficient evidence to establish the debts and constituted grounds to deny the motion for directed verdict.

In a suit for the collection of promissory notes, it is sufficient for the plaintiff to produce the notes sued upon to make out his ease. Humphrey v. Humbrecht, 427 So.2d 461 (La.App. 5th Cir.1983), writ denied 433 So.2d 1052 (La.1983); Fontenot v. LaFleur, 281 So.2d 868, (La.App. 3rd Cir. 1973), writ denied 284 So.2d 336 (La.1973). Once the notes are introduced into evidence, the burden shifts to the defendant to establish the non-existence or extin-guishment of the obligation. Humphrey v. Humbrecht, supra; La.Civ.Code art. 2232.

Therefore, since the notes themselves were properly introduced into evidence, the trial judge did not abuse his discretion in denying Scaffolding’s motion for a directed verdict. For these reasons, no error was committed.

y

In its fifth assignment of error, Scaffolding contends that the trial judge committed error in holding that Scaffolding had a duty to inform Citizens of the $60,000 advance to Consolidated.

In his oral reasons for judgment, the trial judge stated that “it was mandatory by Mr. Thompson and or Scaffolding that the bank be made aware of any change in (sic) situation, but the bank was not notified.” Scaffolding contends that no such duty existed and to impose such a duty on an account debtor would be to impose an impossible burden on account debtors.

As previously mentioned, the trial judge rejected Scaffolding’s argument that the $60,000 was to be treated as an advance for future purchases. In so finding, the trial judge must have found that the $60,000 was a loan between the parties. Since the trial court found this money to be a loan, whether a duty to inform Citizens existed or not is of no moment. Even if Citizens had been informed of the loan, the pledge would not have been affected and the result of this case would be unchanged.

VI

In its final assignment of error Scaffolding contends that considering the judgment of the trial court in favor of Citizens, Scaffolding has nothing in its possession which could be considered a claim or credit of Consolidated which would be subject to seizure by Citizens.

After suit was filed in this matter, Scaffolding and Thompson entered into an agreement whereby Scaffolding would purchase materials from Kennison through Consolidated, who would act as agent for the sale. Kennison Forest Products would then bill Scaffolding directly and clearly set forth any commission due Consolidated. Scaffolding would pay Kennison directly and deduct from the price any commissions due Consolidated. The amount of these commissions were then applied towards repaying the $60,000 alleged advance.

After Citizens secured a summary judgment in its favor against Consolidated and Mr. Thompson, it filed a garnishment petition, which was served on Scaffolding, along with some interrogatories and a notice of seizure. This garnishment was an attempt to seize the retained commissions as property of Consolidated held by Scaffolding. Prior to service of the petition and interrogatories, Scaffolding had retained $13,685.58 in commission and applied this amount towards repayment of the $60,000.

After judgment in favor of Citizens and against Scaffolding, the trial judge held that any commission retained by Scaffolding prior to service of the garnishment petition and interrogatories was not subject to garnishment and operated as an automatic compensation under La.Civ.Code art. 2207, et seq. to diminish Consolidated’s $60,000 debt to Scaffolding. As to any commissions retained subsequent to service of the garnishment petition and interrogatories, the trial judge held that these commissions were subject to seizure and garnishment, and not subject to compensation.

Scaffolding now alleges that since the trial court judgment was against Scaffolding on the principal demand, and Scaffolding was not able to offset the $60,000 against pledged invoices, Consolidated was indebted to Scaffolding at the time suit was filed. As such, Scaffolding suggests the $60,000 owed by Consolidated was demand-able at the time of the agreement and as soon as the commissions due Consolidated were retained by Scaffolding, an immediate compensation or set-off resulted to reduce the $60,000 debt by the amount of the commission retained.

In order for compensation or set-off to be applicable, there must be the contemporaneous existence of distinct debts, each equally liquidated and demand-able. Hartley v. Hartley, 349 So.2d 1258 (La.1977); Hamilton v. Hamilton, 421 So.2d 291 (La.App. 1st Cir.1982).

In the instant case, until a final judgment is entered, the status of Scaffolding’s claim against Consolidated is indeterminate and uncertain. What Scaffolding possesses is a potential claim for $60,000, contingent on a final judgment denying Scaffolding the right to offset the $60,000 against the pledged invoices. If Scaffolding should obtain a final judgment absolving itself of liability to Citizens and permitting the $60,000 to be offset against the invoices, Scaffolding would have no claim against Consolidated. As Scaffolding’s claim is contingent on the finality of a judgment, it is not yet liquidated or de-mandable and cannot be the basis for a claim of compensation.

The seizure of the commissions was effective as of the date of service of the garnishment petition and interrogatories. La.Code Civ.P. art. 2411. At that time, Scaffolding’s claim was not yet liquidated or demandable. Scaffolding had no claim against Consolidated at the time the commissions were retained. As such, no compensation could result, as there was no simultaneous existence of two equally de-mandable debts as required by Civil Code article 2208. Since no compensation or set-off could occur, we find no merit in this assignment of error.

Therefore, for the above and foregoing reasons the judgment of the trial court is affirmed at defendant-appellant’s costs.

AFFIRMED.

      . La.C.C. art. 1810 was amended in 1983. The pertinent part of the article, paragraph B, was deleted from Article 1810 and moved to Article 1672, which governs involuntary dismissals.

      . The concept of compensation or set-off is treated by La.Civ.Code arts. 2207-09, which provide as follows:
      Art. 2207. When two persons are indebted to each other, there takes place between them a compensation that extinguishes both the debts, in the manner and cases hereafter expressed.
      Art. 2208. Compensation takes place of course by the mere operation of law. even unknown to the debtors; the two debts are reciprocally extinguished, as soon as they exist simultaneously, to the amount of their respective sums.
      Art. 2209. Compensation takes place only between two debts having equally for their object a sum of money, or a certain quantity of consumable things of one and the same kind, and which are equally liquidated and demandable.
      The days of grace are no obstacle to the compensation.


source: Caselaw Access Project

author: WATKINS, Judge.

license: Public Domain

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and Gershel Crochet, et al. v. Patrick LeBLANC, et al.
    No. 83 CA 1214.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1984.
    Writ Denied Jan. 14,1985.

      Jerry H. Schwab, Schwab & Butler, Hou-ma, for plaintiffs and appellees State Farm and Gershel Crochet.
    Richard A. Breaux, Law Office of Michel P. Pellegrin, Houma, for plaintiffs and ap-pellees Delores LeBouef and Sandra L. Scott.
    Dan A. Spencer, Atty., Houston, Tex., for defendant and appellant Superior Oil Co.
    Glynn Voisin, Houma, Joe B. Norman, Liskow & Lewis, New Orleans, for defendants and appellees Lawrence LeBlanc and Patrick LeBlanc.
    Before WATKINS, CRAIN and ALFORD, JJ.
   WATKINS, Judge.

State Farm Mutual Automobile Insurance Company, Gershel Crochet, Delores LeBouef, and Sandra LeBouef Scott filed suit against the Superior Oil Company, Lawrence LeBlanc, Lent, Inc., and Patrick LeBlanc for injuries sustained by Miss Crochet, LeBouef, and Scott in an automobile accident near Ashland Plantation, Terre-bonne Parish, Louisiana. The trial court rendered judgment against Superior Oil Company, Lent, Inc., and Patrick LeBlanc in solido, finding Superior Oil Company to have been the special employer and Lent, Inc., to have been the general employer of Patrick LeBlanc, the driver who was at fault.

The sole issue presented on appeal is whether or not Superior Oil Company was the special employer of Patrick LeBlanc. The facts are fully set forth and the law clearly and correctly expressed in the written reasons for judgment of the trial court which we attach. Suffice it to say that applying our decision in Cappo v. Vinson Guard Service, Inc., 400 So.2d 1148 (La.App. 1st Cir.1981) to the facts of this case, it is clear, applying the Cappo analysis, that Superior Oil Company was the special employer of Patrick LeBlanc.

Hence, the judgment of the trial court is affirmed, at appellants’ cost.

AFFIRMED.

APPENDIX

STATE FARM MUTUAL AUTOMOBILE * 32ND JUDICIAL DISTRICT COURT

INSURANCE COMPANY and GERSHEL

CROCHET

Vs. NO. 60,774 PATRICK LEBLANC

SANDRA LEBOUEF SCOTT * PARISH OF TERREBONNE

Vs. NO. 60,801

LAWRENCE LEBLANC, LENT, INC.,

PATRICK LEBLANC, and PRUDENTIAL PROPERTY and CASUALTY INSURANCE COMPANY■

RAY PAUL LEBOUEF as HEAD and MASTER of the COMMUNITY of ACQUETS and GAINS and DELORES MARCEL LEBOUEF

Vs. NO. 60802 * STATE OF LOUISIANA

LAWRENCE LEBLANC, LENT, INC., PATRICK LEBLANC and PRUDENTIAL PROPERTY and CASUALTY INSURANCE COMPANY

REASONS FOR JUDGMENT

These consolidated lawsuits arise out of a vehicular collision which occurred on April 26, 1979. Plaintiffs are: Delores Le-Bouef and Sandra LeBouef Scott, guest passengers in an automobile being operated by Carla A. LeBouef; Gershel Crochet, owner of the second automobile involved in the accident; and State Farm Mutual Automobile Insurance (State Farm), collision carrier and Crochet’s subrogee.

Defendants are: Patrick LeBlanc, driver of a pick-up truck; Lent, Inc., (Lent), employer of Patrick; Lawrence LeBlanc, owner of the truck, president of Lent and father of Patrick; and The Superior Oil Company (Superior) alleged employer of Patrick under the “shared servant” doctrine. The Prudential Life Insurance Company, uninsured motorist carrier for the LeBouef automobile, has been dismissed from the lawsuits and has not filed an intervention. The pick-up truck was not insured.

At 9:35 A.M. on the day of the accident the LeBouefs were proceeding in a northerly direction on Louisiana Highway 57. Approximately four miles south of Louisiana Highway 661, after their automobile had rounded a curve, they noticed the truck driven by Patrick, which was proceeding south, suddenly veer into their lane of travel. Although the driver of the automobile attempted to avoid a collision by blowing her horn and swerving, it was too late; the vehicles collided.

The Crochet vehicle, which was following the LeBouef automobile, was also damaged when its driver attempted to respond to the sudden emergency ahead of her.

This Court finds from the evidence presented at trial that the accident was caused solely by Patrick’s failure to maintain a proper lookout and to remain in his own lane of travel. There was no negligence on the part of the other two drivers or their guest passengers. Patrick and those who are vicariously liable with him are answerable in damages for Patrick’s negligence.

RESPONDEAT SUPERIOR

At the time of the litigated accident, Patrick was employed by Lent, Inc., as a carpenter’s helper. The corporation was the business of Patrick’s father, Lawrence Le-Blanc. The Superior Oil Company procured the services of Lent to do major construction and renovation on the living quarters of a drilling barge, the M/Y “Keck”, located off the coast of Dulac, Louisiana.

The, contract entered into between Superior and Lent provided that all material necessary for the construction would be on the job site before Lent commenced work. All materials, including those which might become necessary as work progressed, were to be provided by Superior. In other words, Lent was hired solely to perform carpentry labor; it was not a turn-key job. (See LSA-C.C. Art. 2757 et seq. for distinctions between the two types of construction contracts.)

Mr. Lawrence LeBlanc, senior carpenter on the job, testified that on the morning of the accident, he approached Daniel Le-Compte, Superior’s supervisor on duty, to inform him that more paneling was needed for the job. Mr. LeBlanc states that he was asked to handle the pick-up of the materials because the rig was working a “light crew” that day. Mr. LeBlanc then designated Patrick to go into town in the Lent truck. The accident occurred on the return trip, after he had purchased the paneling at Morrison’s Home Care Center, charging the same to Superior. Patrick did not purchase anything for himself or for Lent on the trip.

LSA-C.C. Art. 2320 provides for the responsibility from the master-servant relationship:

“Masters and employers are answerable for the damages occasioned by their servants and overseers, in the exercise of the functions in which they are employed.”

An employer is held liable for damages when there is a connexity between the tor-tious conduct and the time, place and causation of the employee’s duties, and when the risk of harm is imputable to the employer’s business. Cain v. Doe (La.App. 4th Cir., 1979) 378 So.2d 549. The vicarious liability of the employer is a consequence of the employment relationship; the employer’s negligence vel non is immaterial. Sampay v. Morton Salt Company (La., 1981) 395 So.2d 326.

An employee can have both “general” and “special” employers. When the factual situation warrants, all three — the general employer, the special employer, and the negligent employee — are liable in solido for the damages caused to injured victims. Le-Jeune v. Allstate Insurance Company (La.1978) 365 So.2d 471; Cappo v. Vinson Guard Service, Inc. (La.App. 1st Cir., 1981) 440 [400] So.2d 1148.

This Court finds for a fact that the request of Superior that Mr. LeBlanc handle the pick-up of the paneling was sufficient to establish a relationship of “special” employer — “special” employee between Superior and whomever Mr. LeBlanc designated to carry out the mission. The relationship between Lent and Patrick as “general’ employer — “general” employee did not cease. Superior, Lent and Patrick are solidarily liable to the plaintiffs.

Mr. LeBlanc is not individually liable in the instant case. His son reached the age of 18 a few days prior to the accident. Furthermore, although the truck was registered in Mr. LeBlanc’s name, it was being used by the corporation for corporate purposes. No attempt was made to pierce the corporate veil and thereby establish individual liability on Mr. LeBlanc’s part.

DAMAGES

SANDRA LEBOUEF SCOTT: The impact of the collision caused facial injuries to this young plaintiff approximately two months before her wedding. She was taken to Terrebonne General Hospital by Aca-dian Ambulance Service. She had multiple deep lacerations of her left cheek, multiple superficial lacerations of the nose, and nasal fractures. Additionally, she suffered lacerations of both hands and a mild, cervical muscle strain.

The facial lacerations resulted in considerable scarring of the cheek and nose. By January, 1983, several of the scars had thickened, an indication that underlying glass foreign bodies remained in the skin.

The nasal fracture was of the bony cartilaginous junction, and there is deviation to the right externally. The cartilaginous portion of the septum is dislocated into the right nostril, and there appears to be a fracture of the cartal septal end. Although the nostril is partially blocked by the deflected septum, there is minimal interference with breathing.

Plaintiff’s medical evidence showed that surgical revision and dermabrasion of all of the scars can be accomplished with one operative procedure. Reconstruction of the external nose and nasal septum is possible at the same time, but a second operation is preferable. A third operation to dermabrade the scar from the nose surgery would also be required. The medical testimony was to the effect that the surgical procedures will cost between $5,000.00 to $7,000.00, depending upon whether plaintiff elects an office or a hospital procedure.

Plaintiff, Sandra LeBouef Scott, is entitled to $7,000.00 for future medical expenses, and to $13,000.00 for general damages, including past and future pain and suffering.

DELORES LEBOUEF: She, too, was taken to Terrebonne General Hospital by ambulance. She was found to have multiple lacerations of the scalp, a laceration of the left side of the face, a laceration of the left index finger, an abrasion of her left knee, and a sprain of her right ankle. She testified that she experienced extensive back and chest pain for an extended period of time following the accident. Her testimony was also to the effect that immediately following the accident, seven bottom teeth were loose. Although the teeth have slowly tightened, she has residual problems with sensitivity and absessing. The dental report shows that root canal work and extractions of the injured teeth will cost $1,050.00.

Mrs. LeBouef’s most serious complaint was the mental stress she suffered immediately following the accident. Within days, she suffered severe attacks of hyperventilation, at first thought to be a heart attack for which she sought aid at the emergency room of the hospital. These attacks also necessitated repeated visits to her physician.

Plaintiff, Delores LeBouef, is entitled to $1,050.00 for future medical expenses, and to $9,000.00 general damages, including past and future pain and suffering. Additionally, Mrs. LeBouef is entitled to be reimbursed the sum of $410.78, medical expenses of herself and her daughter incurred because of their injuries.

STATE FARM: The subrogation claim of this insurer is documented with receipts and trust agreements. State Farm is entitled to judgment in the amount of $1,983.00.

GERSHEL CROCHET: This plaintiff entered a claim for $100.00, the deductible portion provided for in the collision policy of State Farm. He is clearly entitled to judgment in that amount.

SIGNED, Houma, Louisiana, this 2nd day of August , 1983.

Paul R. Wimbish DISTRICT JUDGE


author: ALFORD, Judge.

text:
    Lawrence ANTILL, Jr. v. TIME INSURANCE COMPANY.
    No. CA 83 1218.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1984.

      Walter Naquin, Jr., Thibodaux, for plaintiff-appellant.
    Christopher Riviere, Thibodaux, for defendant-appellee.
    Before WATKINS, CRAIN and ALFORD, JJ.
   ALFORD, Judge.

Plaintiff, Lawrence Antill, Jr., appeals a judgment in favor of defendant, Time Insurance Company (Time), dismissing his claim for medical expenses allegedly due under a major medical insurance policy, penalties and attorney’s fees. We affirm.

The record establishes the following facts:

On March 23, 1981, Time’s agent, Mr. A.J. Guillory, interviewed Antill and filled out in Antill’s presence an insurance application form. Antill signed the form and paid the first annual premium. The application was then sent to Time’s home office for review. On or about April 7, 1981, Time mailed a request for information concerning Antill’s prior medical history to Dr. Joseph Powell, who was listed on the application form as Antill’s “regular physician” and as the physician who had treated him for a broken leg in May of 1980.

Before the medical report from Dr. Powell was received by Time, Antill contacted Guillory concerning the status of the application. The stated reason for delay in approving coverage was the fact that the application mentioned Antill’s broken leg and that the medical report on that condition had not been received by Time from Dr. Powell. Guillory was told by Time’s regional underwriting manager, Gregory Baker, that if Antill would provide details with regard to his broken leg history (e.g., if Antill had fully recovered; if there were any residual problems), then Time would consider issuing coverage without the medical report. Relying on medical information obtained from Antill, Baker issued the policy.

However, on May 27, 1981 (after mailing the policy to the agent, Guillory, but before the policy was given to Antill), Time received the medical report from Dr. Powell. The report stated that on March 31, 1978, Antill had been admitted to a hospital with anterior chest pain and that he had probably sustained a very small “MI”, myocardial infarction. The report reflected that An-till had been in the hospital from March 31, 1978, until discharged on April 13, 1978.

Meanwhile, on April 22, 1981, Antill was hospitalized at Thibodaux General Hospital and subsequently transferred to Ochsner Foundation Hospital in New Orleans. On May 6, 1981, Antill underwent coronary artery surgery with multiple by-passes. Antill filed the instant suit to force Time to pay the medical expenses he had incurred.

Time contends that because Antill gave a false answer on his insurance application, Time is not responsible for Antill’s claims. Time bases its contention on the answer given by Antill to question 17(b) of the application for insurance. The salient part of the application provides:

“To the best of your knowledge and belief has any person proposed to be insured within the last ten years:
17. Ever had any indication, diagnosis, or treatment of:
(b) The heart or circulatory system including high blood pressure, heart attack, heart murmur, or chest pain, irregular heartbeat or varicose veins or phlebitis?”

Although Antill answered “no” to this question, he argues on appeal that “in order to determine if a false answer was given in an application, the entire application must be looked at as a whole.” Antill contends that because he answered “yes” to the following two questions, no real false answers were given.

18. Ever had surgery or has surgery ever been recommended?
19. Had an electrocardiogram, chest x-ray, or blood study of any kind or been hospital-confined in the past ten years? If yes, give name of physician or hospital, tests and results.

We are not persuaded by Antill’s argument. Viewing the application as a whole, it is apparent that Antill was informing the insurer by his answers to these two questions that he had been hospital-confined within the past ten years for leg surgery. In the space provided on the application for more information, the only information given by Antill concerned his broken leg in May of 1980 (see appended portion of application). We note that Antill also answered “no” to question 20: “Currently taking medication or medical treatment of any type?” However, Antill testified that at the time the insurance application was made, he was taking at least two medications for his Angina (a heart illness). Further, Antill also answered “no” to one of the final questions on the application, number 22, which asked, “Had any other illness, injury or medical treatment during the past five years not reported in Questions 17 through 21?”

The trial court based its dismissal of Antill’s claim on LSA-R.S. 22:619 B. which states:

B. In any application for life or health and accident insurance made in writing by the insured, all statements therein made by the insured shall, in the absence of fraud, be deemed representations and not warranties. The falsity of any such statement shall not bar the right to recovery under the contract unless such false statement was made with actual intent to deceive or unless it materially affected either the acceptance of the risk or the hazard assumed by the insurer.

The jurisprudence interpreting this statute places the burden of proof upon the defendant-insurer. The statute requires that a false statement bars recovery only if it is made with the intent to deceive or it materially affects the risk. Louisiana jurisprudence requires both factors. Coleman v. Occidental Life Ins. Co. of N.C., 418 So.2d 645 (La.1982).

We agree with the findings of the trial court that Time met its burden of proof under LSA-R.S. 22:619 B. In its written reasons for judgment the trial court stated:

The Court finds, as a matter of fact, that plaintiff had suffered che[st] pains within the ten years prior to the date of application and that he was also suffering from diagnosed heart and circulatory problems for which he was receiving treatment. In view of the two complaints of chest pains and the types of medication plaintiff had or was taking, the Court is also of the opinion that plaintiff had actual knowledge of his heart condition for several years. Further, the Court finds that Mr. Guillory did ask plaintiff Question 17(b) with plaintiffs reply being in the negative. Lastly, the Court is of the opinion that the negative answer to Question 17(b) was false and made with the actual intent to deceive with the risk ássumed by the defendant being materially affected thereby. The contention that plaintiff did not know what his diagnosed condition of Angina meant is of no merit because the term Angina is not used in Question 17(b) nor anywhere else on the application form.

Accordingly, for the foregoing reasons, the judgment of the trial court is affirmed. Becáuse1 judgment is in favor óf the defendant, we need not reach the issues of penalties and attorney’s fees. All costs of this appeal are to be paid by plaintiff-appellant.

AFFIRMED.

APPENDIX

ementyam Each of the undersigned represent to the best of their knowledge*and belief that all statementyend answers contained in this application and any medical examination which by its terms shall also be considered part of this application are compiete and true and expressly agrees as follows:

Any insurance approved by the Company for issuance as a result of this application and medical examination, if required, unless effective prior to policy delivery in the manner specified by the Conditional Receipt, shall be considered in force when a policy shall have been issued by the Company and received and accepted in person by the applicant and the full first premium paid, providing there has been no change in the health or occupation of the Proposed insured(s) subsequent to completion of this application. With respect to Life insurance, including accidental death benefit and principal sum benefits under Health insurance, if the insurance becomes effective prior to policy delivery in the manner specified in the Conditional Receipt, the amount of such insurance shall not exceed $100,000.

The undersigned certify that they have received an Outline of Coverage for Health insurance at the time this application was completed.

I hereby authorize any licensed physician, medical practitioner, hospital, clinic or other medically related facility, insurance company, the Medical Information Bureau or any other organization, institution, or person that has any records or knowledge of me or my health or that of any member of my family applying for insurance herein to release to Time Insurance Company or its reinsurer(s) any and all such information it may require to determine my (our) eligibility for the insurance being requested.

To facilitate rapid submission of such information, l authorize all said sources, except the Medical Information Bureau, to give such records to any agency employed by Time Insurance Company to collect and transmit such information.

A photographic copy of this authorization shall be valid as the original.

      . In addition to the 1978 hospitalization of An-till for chest pains, we note that the deposed testimony of Dr. Powell indicates that Antill was also admitted into the hospital in 1975 for chest pains, diagnosed as Angina.


author: COLE, Judge.

text:
    Johnny McCLAIN v. C.E. HOLMES, Ken Netterville and Cavelle Bradley.
    No. CA 83 1284.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1984.
    Rehearing Denied Dec. 28, 1984.
    Writ Denied Feb. 15,1985.
    Dennis R. Whalen, Baton Rouge, for plaintiff-appellee.
    Mary H. Thompson, Baton Rouge, for defendant-appellee.
    Steve M. Marks and Elmo Lear, Baton Rouge, for defendant-appellant.

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

The issue in this case is whether or not the trial court acted properly in granting a judgment notwithstanding the verdict. By so doing, the trial court nullified the jury’s conclusion an employee involved in an altercation with police officers was acting within the course and scope of his employment, thus rendering his employer liable for the injuries he caused.

On September 28, 1979 an accident occurred at the intersection of Airline Highway and Victoria Drive in Baton Rouge. The intersection was blocked by the wrecked vehicles and Baton Rouge city police officers were diverting traffic away from the intersection. A van owned by C. ■ Henry Company, Inc. and driven by its employee, Johnny McClain, attempted to enter the intersection from the unimproved right-of-way adjacent to Airline Highway, opposite Victoria Drive, in spite of Officer C.E. Holmes’ instructions not to do so.

As a result of McClain’s disobeying the officer’s directions, another officer working the accident, Ken Netterville, told McClain to pull over to the shoulder and informed McClain he was going to issue a citation as soon as the traffic cleared. All further facts concerning the subsequent events were disputed at trial; however, it was established that a disagreement arose between Mr. McClain and the police officers as to the propriety of Mr. McClain receiving a citation. A scuffle followed, involving the two officers mentioned above, as well as a third, Officer Cavelle Bradley. As a result, Mr. McClain was arrested and taken to the downtown jail. He was later convicted of resisting a lawful arrest.

Mr. McClain filed suit against the three police officers, alleging he was entitled to damages for their “malicious conduct.” The three officers reconvened, seeking damages for injuries sustained in the altercation. McClain’s employer, C. Henry Company, Inc., and its insurer, Reliance Insurance Company, were added as defendants in the reconventional demand. (See La. Civ. Code art. 2320 which states that employers are answerable for the damage caused by their “servants” in the exercise of the functions in which they are employed.)

A jury trial was held and the jury returned a verdict on the main demand in favor of the three defendant police officers. On the reconventional demand the jury found against Johnny McClain and in favor of one of the police officers, Ken Netter-ville, awarding him $30,000. The jury, finding the battery had been committed by Mr. McClain while he was within the scope and course of his employment, also rendered a verdict against C. Henry and its insurer.

C. Henry filed a motion for a judgment notwithstanding the verdict, or in the alternative, a motion for a new trial or for a remittitur. The basis for the motions was that the jury’s conclusion the tort was committed while McClain was within the scope and course of his employment was contrary to the law and evidence. The court granted the motion and rendered judgment in favor of C. Henry and its insurer. Ken Netterville filed this devolutive appeal.

The standard for determining the propriety of a judgment notwithstanding the verdict is the same as that used in determining the correctness of a directed verdict. See Rougeau v. Commercial Union Ins. Co., 432 So.2d 1162 (La.App. 3d Cir.1983), writ denied 437 So.2d 1149 (1983). The trial court recognized this to be the case when it noted the directed verdict (like the judgment notwithstanding the verdict) should be granted, “... only if reasonable men, all inferences resolved in favor of the nomover, (sic) could not possibly arrive at a verdict for the nonmover.” The Rougeau court quoted language from Boeing Com pany v. Shipman, 411 F.2d 365 (5th Cir. 1969), as follows:

“ ‘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.’ ” 432 So.2d at 1166.

The Rougeau court noted in applying this standard, the court cannot consider credibility issues or substitute its judgment of the facts for that of the jury. The issue of the liability of McClain and the policeman involved many credibility determinations and factual disputes. The aspect of the case that concerns us here is whether or not Mr. McClain was within the course and scope of his employment.

The leading case involving an employer’s liability for an intentional tort of the employee is LeBrane v. Lewis, 292 So.2d 216 (La.1974). There a dispute arose between Lewis, a kitchen supervisor at a hotel, and LeBrane, a kitchen helper. The argument developed when LeBrane refused to leave and get his hair cut in compliance with the hotel policy concerning kitchen workers. When LeBrane refused to comply with this directive, Lewis fired him (as he was authorized to do). A heated argument developed and the two men commenced fighting. In the course of the fracas Lewis stabbed LeBrane and LeBrane later sued Lewis and his employer, the corporate owner of the hotel.

The intermediate court had concluded that at the time of the stabbing, the dispute was a purely personal matter. The Supreme Court reversed, deciding the dispute was primarily “employment-rooted” and that, “The fight was reasonably incidental to the performance of the supervisor’s duties in connection with firing the recalcitrant employee.... ” The court elaborated as follows:

“In short, the tortious conduct of the supervisor was so closely connected in time, place, and causation to his employment-duties as to be regarded a risk of harm fairly attributable to the employer’s business, as compared with conduct motivated by purely personal considerations entirely extraneous to the employer’s interests. It can thus be regarded as within the scope of the supervisor’s employment, so that his employer is liable in tort to third persons injured thereby.” 292 So.2d at 218.

Subsequent cases from this circuit have dealt with situations similar to that of Le-Brane. In Faust v. Mendoza, 415 So.2d 371 (La.App. 1st Cir.1982), a security guard at a hotel was alleged to have committed a battery upon a customer. The court found the dispute had erupted as a result of the customer’s apparent drunken and disorderly conduct. Since the security guard had been hired to keep order on the premises, the altercation that resulted was obviously employment-rooted so as to be regarded as a risk of harm “fairly attributable to the employer’s business.”

In Fogg v. Lott, 444 So.2d 177 (La.App. 1st Cir.1983), an altercation occurred when the doorman at a bar refused to allow a customer to enter the premises because the customer was not dressed properly. Again the court concluded the dispute was primarily employment-rooted and the employer should be liable.

In Cappo v. Vinson Guard Service, Inc., 400 So.2d 1148 (La.App. 1st Cir.1981), a security guard was employed by a restaurant to prevent nonpatrons from parking in the restaurant parking lot. The plaintiff insisted he should be allowed to park his car there although he did not intend to visit the restaurant. An argument occurred and the security guard struck the plaintiff. The court found the restaurant was liable as the special employer of the guard because the battery was committed while the guard was attempting to enforce the restaurant’s regulations.

In Scott v. Commercial Union Ins. Co., 415 So.2d 327 (La.App. 2d Cir.1982), the employee, a mechanic, struck a customer as they discussed a personal matter. The court found no liability on the part of the employer, because although the tort was committed at the employer’s place of business and during the working hours, the dispute was strictly personal in nature and did not arise out of the employment.

With these eases in mind, we agree with the trial court reasonable minds could arrive at no other conclusion than that the tort committed by McClain was not employment-related. Although the action occurred during working hours and while Mr. McClain was en route to make deliveries, the dispute was caused by personal animosity rather than by any matter related to the employer’s interest. At the moment of the battery, Mr. McClain, unlike the employees in LeBrane, Faust, Fogg and Cappo, was not acting in furtherance of his employer’s interest. The dispute was in no way connected to Mr. McClain’s duties as a truck driver. Rather, like the employee in Scott, his conduct was motivated by “purely personal considerations entirely extraneous to the employer’s interest,” (quoting Le-Brane, supra,) even though the incident occurred while the employee was working.

Considering the matter from another perspective, in all of the above-cited eases (except Scott) the tort the employee committed was one that could be regarded as described in LeBrane, a “risk of harm fairly attributable to the employer’s business.” A kitchen supervisor may foreseeably become involved in a dispute with a recalcitrant underling. It is quite foreseeable security guards and doormen may fight with unruly patrons. But the possibility a van driver will ignore the orders of a policeman, become irritated when the policeman issues a citation and, finally, commit a battery upon the policeman while resisting a lawful arrest, is simply not a risk fairly attributable to the employer’s business.

In his brief, appellant contends the scuffle could have been employment-related in several aspects. McClain may have disobeyed the police officer’s orders not to proceed through the intersection because he was in a hurry to complete his deliveries. McClain may have become agitated when the officer began to issue the citation because he was anxious to complete the deliveries. He may have become inflamed because he feared his job would be in jeopardy if he was issued a citation.

We have carefully examined the record and find not one shred of evidence to support these contentions. When questioned as to whether or not he had been in a hurry to complete his deliveries, Mr. McClain testified, “No, sir.” When asked if he would have been delayed by turning in the direction the officer had told him to go he answered, “No, sir. I could have got in the right lane and proceeded on through.” When asked if he was concerned about losing his job if he had gotten the citation, he stated he was not concerned about that. In short, there was simply no evidence the tortious conduct was motivated by any reasons related to Mr. McClain’s employment. We believe reasonable men can not arrive at any conclusion other than the dispute arose because of purely personal reasons.

For these reasons, the action of the trial court granting the judgment notwithstanding the verdict is affirmed. Appellant is east for the costs of this appeal.

AFFIRMED.

      . The court also granted (conditionally) the motion for a new trial, as authorized by Code of Civ.P. art. 1810.1(D) as it existed at the time of this trial. This article was repealed in 1983 and is now reembodied in art. 1811.

      . The bracketed words were deleted from the quotation in Rougeau.

      . C. Henry is a wholesale paper company supplying items to fast-food restaurants.


author: LANIER, Judge.

text:
    MAYOR AND COUNCIL OF CITY OF MORGAN CITY, Louisiana v. JESSE J. FONTENOT, INC., et al.
    No. CA 83 1292.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1984.

      Dale H. Hayes, Morgan City, for plaintiff-appellant.
    Donlon Pugh, Lafayette, Maurice P. Mathieu, Houma, Daniel R. Atkinson and Judith A. Chevalier, Baton Rouge, Bert M. Cass, Jr., New Orleans, for defendant-ap-pellee.
    Before COLE, CARTER and LANIER, JJ.'
   LANIER, Judge.

This is a suit for damages by the Mayor and City Council of Morgan City, Louisiana (City), asserting fault under La.C.C. arts. 667-669, 2315 and 2317 and claiming the operators of a fuel bulk plant and the operator of a fuel delivery truck caused a huge fire which directly damaged city property and required the City to expend property and incur -substantial expenses to extinguish the blaze. The district court allowed the City to recover for property damage directly caused by the fire but denied the rest of the claim. The City took this appeal. The defendants cast in judgment did not appeal or answer the appeal.

FACTS

On August 14, 1980, Jesse J. Fontenot, Inc. (Fontenot) operated a fuel bulk plant in the City of Morgan City. The petition alleges that on August 14, 1980, Jobbers Oil Transport Co., Inc. (Jotco) owned and operated a tank truck and was delivering fuel or other highly flammable liquid to the Fontenot Bulk Plant when there was ignition of the fuel or other flammable liquid causing an explosion and fire that engulfed adjacent business premises and destroyed buildings in Morgan City, Louisiana. The City responded to the fire with professional fire, police and electrician services to control and extinguish the blaze. During the course of fighting the fire, the City also incurred damages to and some loss of its fire fighting equipment.

Fontenot, Jotco and their insurers stipulated liability, not to exceed the limits of liability in the applicable insurance policies. Subsequently, the parties also stipulated that the City’s total claim was for $38,-267.03 which was itemized as follows;

Damaged fire trucks $12,500.00
Damaged/lost fire equipment and nozzles 2,187.96
Chemical foam 9,720.00
Damaged electrical equipment 5,477.77
Damaged city streets 200.00
Overtime pay:
Policemen $2,247.61
Firemen 3,897.13
Electricians 2,036.56
$8,181.30
Total $38,267.03

The district court rendered judgment in favor of the City and against Fontenot, Jotco, Puritan and Pacific for $5,677.77 for damages directly caused by the fire to the City’s electrical equipment and streets. The district court denied recovery on the City’s claim for $32,587.26 for property expended or damaged and professional services rendered in fighting the fire.

RECOVERY BY A POLITICAL SUBDIVISION FOR DAMAGES AND EXPENSES INCURRED IN A RESCUE OPERATION

Fontenot and Jotco were under a duty to carefully handle the combustible and/or flammable liquids in their control or possession so that an unreasonable risk of harm would not be created for others. Boudreaux v. American Insurance Company, 262 La. 721, 264 So.2d 621 (1972); Ayala v. Bailey Electric Company, Inc., 318 So.2d 645 (La.App. 4th Cir.1975), writ granted, 322 So.2d 770 (La.1975), dismissed on joint stipulation. By stipulating liability, Fontenot, Jotco and their insurers admitted that this duty had been breached (fault) and that this fault was a cause-in-fact of harm to the City. Wright v. O’Neal, 427 So.2d 852 (La.1983); Carter v. City Parish Government of East Baton Rouge, 423 So.2d 1080 (La.1982). However, for the violation of this duty to be a legal cause of injury, it must not 'only be a cause-in-fact of the injury, but the risk which caused the loss must be within the ambit of the protection of the duty. Jacoby v. State, 434 So.2d 570 (La.App. 1st Cir.1983), writ denied, 441 So.2d 771 (La. 1983) and the cases cited therein.

It is generally held that the risk of injury to a gratuitous rescuer is within the ambit of protection of the general duty not to create an unreasonable risk of harm to others. Stevenson v. Delahaye, 310 So.2d 651 (La.App. 1st Cir.1975); F. Stone, 12 Louisiana Civil Law Treatise, Tort Doctrine § 282, at 391-392 (1977); Kaplan, Recovery by the Rescuer; 28 La.L.Rev. 609 (1968). This rule has been applied where the fault of a tortfeasor caused a fire and a gratuitous rescuer was subsequently injured. Inseco v. Cambridge Mutual Fire Insurance Company, 447 So.2d 606 (La.App. 3rd Cir.1984), writs denied, 449 So.2d 1349, 1350 (La.1984). However, recovery has been denied to professional rescuers who are injured in rescue operations. Zimmerman, Negligence Actions by Police Officers and Firefighters: A Need for a Professional Rescuers Rule, 66 Cal.L.Rev. 585 (1978). In Thompson v. Warehouse Corporation of America, Inc., 337 So.2d 572, 573 (La.App. 4th Cir.1976), a professional firefighter was injured while fighting a fire, and the court observed as follows:

The warehouse sprinkler system was partially inoperative because of closed valves that should have been open. The question is whether defendant is responsible for injuries resulting to a firefighter from its negligence in not having the valves open. We hold that negligent maintenance of a sprinkler system, which may result in a fire’s burning more fiercely or with denser smoke or otherwise more dangerously, is not a breach of duty — fault within La.C.C. 2315 — towards the firefighters who may come to fight the fire.
But we are unable to distinguish negligent sprinkler maintenance from ordinary negligence which might contribute to the start of the fire. We deem it unreasonable to hold that an owner owes it to firefighters not to let his building catch fire. To the contrary: it is the firefighters’ duty to the property owners (and neighbors) to save them from their negligence. In the absence of proof of personal negligence so gross as to be tantamount to arson or to trap-setting by the owner, we cannot hold a building owner liable to firefighters for negligence causing or worsening fire which caused the firefighters’ injury. [Emphasis added].

A professional rescuer may recover, however, for injury caused by a risk which is independent of the emergency or problem he has assumed the duty to remedy. Langlois v. Allied Chemical Corporation, 258 La. 1067, 249 So.2d 133 (1971); Briley v. Mitchell, 238 La. 551, 115 So.2d 851 (1959).

The City has acknowledged in brief that it has exercised the power granted by La.R.S. 33:402(8) to provide for the prevention and extinguishment of fires and to organize and maintain a fire department. By assuming the responsibility of providing for such “rescue” services, the City has placed itself in a. situation analogous to that of the professional rescuer. In City of Bridgeton v. B.P. Oil, Inc., 146 N.J.Super. 169, 369 A.2d 49, 54-55 (1976), the Superior Court of New Jersey ruled that a municipality was not entitled to recover from a tortfeasor for costs of services provided by its fire department to prevent the spread of fuel oil and gasoline leaking from the tortfeasor’s property with the following language:

Governments, to paraphrase the Declaration of Independence, have been instituted among men to do for the public good those things which the people agree are best left to the public sector. Since our country was founded there has devolved a widening horizon of public activity. True, certain activities have developed in areas from which revenue has been derived, such as turnpikes, water or power supply, or postal services. Nevertheless, there remains an area where the people as a whole absorb the cost of such services — for example, the prevention and detection of crime. No one expects the rendering of a bill (other than a tax bill) if a policeman apprehends a thief. The services of fire fighters are within this ambit and may not be billed as a public utility.
The court further holds that a municipal corporation may not recover as damages the costs of its governmental operations which it was created to perform, but it is not to be denied a recovery for other losses by reason of its status as a municipal corporation. Cost accounting must have a limiting factor somewhere, and that limit is reached when the function affected is a part of the act of government.
Thus, if the city were the owner of adjacent land damaged by escaping oil, it like all landowners, may recover damages caused by this escape. It cannot, however, recover costs incurred in fire prevention or extinguishment. That is the very purpose of government for which it was created.

We find this reasoning persuasive and adopt it as our own. The duty imposed on Fontenot and Jotco to carefully handle flammable liquids does not include within the ambit of its protection the risk that public property and funds will be expended to fight a fire caused by a breach of that duty.

OTHER THEORIES OF RECOVERY

The City has raised theories of equity (actio de in rem verso and quantum meruit) as grounds for recovery. However, equity applies only when there is no express or positive law governing. La. C.C. art. 21. In the present ease, tort law (La.C.C. arts. 2315 and 2317) applies to the conduct of the parties, precluding a resort to equity. Cf. Terrebonne Parish Police Jury v. Kelly, 428 So.2d 1092 (La.App. 1st Cir.1983). The City also argues a theory called theorie de I’institution. This theory applies to contracts governing public service and advocates the interpretation of these contracts in a way consistent with the better performance of the services being rendered. See S. Litvinoff, 6 Louisiana Civil Law Treatise, Obligations § 193 (1969). This doctrine is inapplicable to the present case because no contract existed between the City and Fontenot or Jotco for the fire protection provided by the City.

DECREE

For the foregoing reasons, the judgment of the district court is correct and is affirmed. The City is cast for the cost of this appeal of $50.00.

AFFIRMED.

      . Jotco carried primary coverage of $300,000 with Western Preferred Casualty Company; intermediate coverage of $200,000 with National Fire & Marine Insurance Co.; and excess coverage of $1,000,000 with Puritan Insurance Company (Puritan). Fontenot had primary coverage of $300,000 with Travelers Indemnity Company and excess coverage of $5,000,000 with Pacific Employers Insurance Company (Pacific).

      . Apparently, the limits of liability of the other insurers had been expended in satisfaction of other claims,

      . Query: Could a volunteer fireman recover for injuries sustained while fighting a fire with equipment purchased with public funds?


author: SHORTESS, Judge.

text:
    STATE of Louisiana v. George GIBSON.
    No. 84 KA 0235.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1984.
    Rehearing Denied Dec. 28, 1984.
    Writ Denied March 15,1985.
    Stacey Moak, Baton Rouge, for George Gibson.
    Leon Picou, Dist. Atty., A. Zach Butter-worth, Asst. Dist. Atty., St. Francisville, T. Barry Wilkinson, Asst. Dist. Atty., Port Allen, for the State of La.
    Before EDWARDS, SHORTESS and SA-VOIE, JJ.
   SHORTESS, Judge.

George Gibson (defendant), an inmate at Louisiana State Penitentiary at Angola, Louisiana, was indicted for two counts of aggravated kidnapping in violation of La. R.S. 14:44. He pled not guilty and, after a jury trial, was found guilty on both counts. He was sentenced on each count to life imprisonment without benefit of parole, probation or suspension of sentence. The sentence on Count I was to be served consecutively with the sentence defendant was then serving for armed robbery. The trial judge ordered that no credit be given on the Count I sentence for time spent in custody. The Count II sentence was ordered to be served consecutively with defendant’s armed robbery sentence and to be served concurrently with the Count I sentence. Defendant appeals his conviction and sentence, alleging two assignments of error.

FACTS

On the evening of October 30, 1982, Ross Maggio, Jr., Warden of Louisiana State Penitentiary at Angola, was with his wife, son and parents at his home on the Penitentiary grounds. His mother, Doris Maggio, walked outside and was grabbed by two inmates, including defendant. Armed with a knife and screwdriver, they forced Mrs. Maggio into the house. Once inside the den, the inmates confronted the warden and his father and forced them to the floor. At this point, the warden’s wife came into the area armed with a gun. The warden ordered her to leave the house. She fled to report the incident.

The inmates then forced the warden and his parents out of the house and into the warden’s truck. There was not enough room for all five in the truck, so the warden’s father was released. They forced Mrs. Maggio onto the floor of the truck under the dash. The warden was told to get into the driver’s seat and drive. Inmate Charles Ranker sat next to the passenger’s door, and defendant sat between the warden and Ranker. The men threatened the warden and his mother with death if they did not get them out the front gate. The warden testified that Ranker told him that he, Maggio, was going to get them out of the prison by driving the truck out of the front gate.

The warden attempted to alert prison security with his two-way radio while driving toward the front gate. Defendant knocked the mike out of the warden’s hand. When they approached the front gate, the warden rammed a pole near the fence, jumped out of the truck, obtained a gun, and then shot through the windshield at Ranker who was still inside the truck with Mrs. Maggio. The warden then rescued his mother from the truck. Defendant was also shot and injured. Ranker died as a result of the shooting.

ASSIGNMENTS OF ERROR NUMBERS 1 AND 2

Defendant argues that the trial judge erred in failing to grant his motion for a post-judgment verdict of acquittal. He contends that the indictment was defective in that it failed to allege the essential element of specific intent required for aggravated kidnapping. His second argument is that there was insufficient evidence of specific intent, so the verdict must be overturned.

In a criminal prosecution, an accused shall be informed of the nature and cause of the accusation against him. La. Const, art. I, § 13. In addition, the prosecution of a felony shall be initiated by indictment or information. La. Const, art. I, § 15. La.C. Cr.P. art. 464 provides in pertinent part that “[t]he indictment shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged.”

In offenses requiring only a general criminal intent, the indictment need not allege that the act was intentionally done. La.C.Cr.P. art. 472. The official revision comment to La.C.Cr.P. art. 472, comment (a), states “[o]n the other hand, some offenses require a specific intent or knowledge, or predicate liability on criminal negligence. In charging these offenses, the indictment, following the general rule of Art. 464, must state the special mental element of the crime.”

Defendant was charged by a short form indictment. La.C.Cr.P. art. 465 provides for specific short form indictments that may be used for certain specified crimes. That article states in pertinent part:

A. The following forms of charging offenses may be used, but any other forms authorized by this title may also be used:
29. Aggravated Kidnapping — A.B. committed aggravated kidnapping of C.D.
‡ * * * * *
B. The indictment, in addition to the necessary averments of the appropriate specific form hereinbefore set forth, may also include a statement of additional facts pertaining to the offense charged. If this is done it shall not affect the sufficiency of the specific indictment form authorized by this article.

In State v. Edwards, 287 So.2d 518 (La.1973), the Louisiana Supreme Court held there was no legal infirmity in the short form of indictment for aggravated kidnapping. That court stated, at page 524:

When the indictment or bill of information is drawn in the short form authorized by Article 465 of the Code of Criminal Procedure, the bill of particulars authorized by Article 484 of the Code of Criminal Procedure is available to supplement it and supply the information necessary to enable the defendant in fairness to properly prepare his defense. However, bills of particulars cannot serve to cure a defective indictment or to supply the constitutional requirement that the accused be informed by the indictment of the nature and cause of the accusation. See La. Const. Art. I, § 9, [La. Const. Art. I, § 15 of the 1974 Constitution], requiring that ‘Prosecution shall be by indictment or information’. When the short form is used, and does not fully spell out in detail the nature and cause of the accusation, it meets constitutional requirements only where the crimes involved and the words used to charge them are well-understood. In such a case the nature and cause of the accusation may be inferred from such words of ordinary and well-understood meaning.

We find that the State could use the short form of indictment in charging defendant with the offense. The failure to state specific intent did not make the indictment defective. Nor did the trial judge err in failing to grant the motion for post verdict judgment of acquittal on this ground.

Defendant’s second basis for the motion is that there was insufficient evidence of the required element of specific intent. Defendant argues that the element of extortion required for an aggravated kidnapping conviction is missing. He contends that the record does not indicate that either he or Ranker informed anyone of the kidnapping.

In State v. Korman, 439 So.2d 1099 (La.App. 1st Cir.1983), this court held that the proper procedural mechanism to raise the issue of the sufficiency of evidence is by a motion for a post verdict judgment of acquittal under La.C.Cr.P. art. 821. Since such a motion was filed in this case, we will review the trial court’s denial of this motion and address the sufficiency argument.

The standard established by La.C.Cr.P. art. 821 is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Walker, 447 So.2d 54 (La.App. 1st Cir. 1984).

The offense of aggravated kidnapping is provided for in La.R.S. 14:44:

Aggravated kidnapping is the doing of any of the following acts with the intent thereby to force the victim, or some other person, to give up anything of apparent present or prospective value, or to grant any advantage or immunity, in order to secure a release of the person under the offender’s actual or apparent control:
(1) The forcible seizing and carrying of any person from one place to another; or
(2) The enticing or persuading of any person to go from one place to another; or
(3) The imprisoning or forcible secreting of any person.
Whoever commits the crime of aggravated kidnapping shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.

(Emphasis ours.)

Specific intent is a legal conclusion to be resolved ultimately by the trier of fact. State v. Grisby, 450 So.2d 1065 (La.App. 1st Cir.1984). Since specific criminal intent is a state of mind, it need not be proven as a fact, but may be inferred from the circumstances present and the actions of the defendant. Grisby; State v. Coleman, 432 So.2d 323 (La.App. 1st Cir.1983).

In this case, Warden Maggio testified that during the kidnapping incident defendant’s accomplice, Ranker, said, “You’re going to get us out of here, you’re the warden and you can get us out the front gate because they’re not going to stop you beings (sic) you are the warden.” After the warden and his mother were in the truck, Ranker again stated that Mrs. Maggio would be killed if the warden did not do as told and get him out of the front gate. When the truck neared the gate, Ranker told defendant to crouch down low. Instead of driving through the gate, the warden ran into an iron post and concrete block wall. The warden also testified that defendant did not appear to be a victim of nor was he threatened by Ranker.

The warden’s parents both testified that threats were made by the inmates that they would die if they did not get out of the prison. Mr. Maggio also indicated that it did not appear that defendant himself was a victim.

Defendant is correct that the record does not indicate that either he or Ranker informed anyone of the kidnapping. The testimony clearly indicates that defendant and the other inmate intended to escape from the prison by hiding in the truck while the warden drove out the front gate. Informing anyone, especially prison guards, of the kidnapping may have foiled their plans. Furthermore, the advantage defendant and Ranker hoped to gain was an easy escape from the penitentiary.

We find, therefore, that defendant had the specific intent required to commit the offense. The intent to gain an advantage (escape from the prison) can be inferred from the threats made by Ranker, the circumstances present during the incident and the actions of defendant. Moreover, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that the essential elements of aggravated kidnapping, including specific intent, were proven beyond a reasonable doubt.

For the reasons stated, defendant’s convictions and sentences are affirmed.

AFFIRMED.

      . A joint motion for change of venue was granted and this case was transferred for trial from West Feliciana Parish, Louisiana, to West Baton Rouge Parish, Louisiana.