text:
    Jenny Lynne TRIPKOVICH v. GILBERT ENGINEERING CORP., Aetna Life and Casualty Co., and NRG Management Corporation.
    No. CA-0726.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 6, 1983.

      Gregory P. Di Leo, New Orleans, for plaintiff/appellant Jenny Lynne Tripko-vich.
    Ivan David Warner, III, James F. Ryan, Kenneth C. Hughes, New Orleans, for defendant/appellee NRG Management Corp.
    Robert B. Nolan, Michael D. Carbo, Adams & Reese, New Orleans, for defendants/appellees Gilbert Engineering Corp. and Aetna Life and Cas. Co.
    Before GARRISON, LOBRANO and AUGUSTINE, JJ.
   LOBRANO, Judge.

Appellant, Jenny Lynne Tripkovich (Trip-kovich) instituted these proceedings against Gilbert Engineering Corp. (Gilbert), its insurer, Aetna Casualty and Surety (Aetna) and NRG Management Corp. (NRG) for personal injuries received as a result of an electrical shock while working as a temporary full-time employee for the Clerk of the United States District Court. Gilbert was the general contractor, and NRG, the electrical subcontractor for renovation work being done to the Clerk’s office. The trial court rejected plaintiffs demands, and she perfected this appeal.

Prior to February 23, 1981 (the date of the accident) Gilbert entered into a General Contract with the United States Government for certain renovation work in the clerk’s office. The electrical portion of that contract was sub-contracted to NRG. During the course of the renovation it was necessary for NRG to disconnect the power in the clerk’s office. This necessitated the Clerk of Court, Nelson Jones, requesting from Government Services Administration (GSA) extension cords which were to be used to supply power to the typewriters, adding machines and other office appliances. These extension cords were provided, and it is clear that they were owned, installed and maintained by the United States.

On February 23, 1981, Tripkovich was sitting at her desk with her arms encircling an IBM typewriter when she received an electrical shock. Her typewriter was plugged into an adapter, which was plugged into the “socket” end of an extension cord. The cord itself was plugged into a permanent outlet located in the Xerox room. Neither the Xerox room, nor the permanent outlet were involved in the renovation work. Tripkovich alleges that the accident was caused by the failure of Gilbert or NRG or both to provide a Ground Fault Circuit Interrupter (GFCI), which she claims would have prevented the electrical shock. Both defendants assert that they did not have any duty to provide an alternate power source to the clerk’s employees. Furthermore they claim that if such a duty existed, plaintiff still has not proved that the presence of a GFCI would have prevented the accident.

In the determination of culpability in a negligence case, we must ascertain “. . . whether the defendants] breached a legal duty imposed to protect against the particular risk involved.” Hill v. Lundin & Associates, 260 La. 542, 256 So.2d 620, 621 (1972). That duty may exist by law, contract or custom. In the instant ease, appellant argues that defendants owed her a duty by virtue of the general contract, specifically section 10.2; and by virtue of the National Electrical Code. We disagree.

Section 10.2 of the contract between Gilbert and the United States provides:

“The contractor shall provide all necessary labor, materials, tools, scaffolding, drop cloths, etc., to protect the occupants and furnishings of the building and remove the same upon completion of the work.”

The trial court concluded that this provision did not place any burden on Gilbert or NRG to provide extension cords to the Clerk’s employees, or any other electrical circuitry. A review of the evidence convinces us that this interpretation is correct. NRG was performing all of its work at night and on weekends in accordance with the contract. The evidence is overwhelming that no construction work was performed during the Clerk’s normal working hours, nor were any of defendants’ employees or personnel present during the day. This leads to the reasonable assumption that the government did not intend for the contractor to provide the clerk or his employees with alternate power sources during his office hours. To read such a meaning into the contract would be unreasonable.

The National Electrical Code provides, at Section 210.8(b):

“Construction Sites
All 125-volt single-phase, 15 and 20 ampere receptacle outlets which are not a part of the permanent wiring of the building or structure, and which are in use by employees shall have a ground-fault circuit-interrupter protection for personnel.”

The trial court rejected appellant’s argument that a duty was owed by virtue of the above provision. In his reasons for judgment the trial judge stated:

“Nor was any responsibility owed to the plaintiff by the defendants under the National Electrical Code, Sec. 201.8(b). This article applies to construction employees and not clerical employees uninvolved in electrical repairs.”

We agree with that interpretation, and further conclude that the requirement for a GPCI is not required where the power source (the outlet) is “part of the permanent wiring of the building.” George Webb, an electrical engineering expert, and William Ames, both testified that the purpose of the above provision was to protect construction site workers, since most of the circuits used would be temporary and without fuses or circuit breakers. Based on the evidence in this case we cannot impose a duty on defendants by virtue of the National Electrical Code.

Lastly appellant argues that the general law regarding the use of electricity imposes a duty upon defendants to protect her from the injuries she sustained. Citing Hebert v. Gulf States Utilities Co., 426 So.2d 111 (La.1983) and Kent v. Gulf States Utilities Co., 418 So.2d 493 (La.1982), appellant contends that the defendants in her case owe the same duty as Gulf States Utilities did in those cases. We disagree. Our Supreme Court pointed out that “electric transmission companies which maintain and employ high power lines are required to exercise the utmost care to reduce hazards to life as far as practicable.” Hebert, supra at 114. Certainly the defendants in the present case cannot be held to the same standard. They had no control or maintenance of the electrical power supplies to the clerk’s office. Appellant’s argument is well presented, but the rationale of the Kent and Hebert cases are not applicable to this factual situation. The duty imposed in those cases arises because of the exercise of control and the ultra hazardous nature of high voltage lines. The duty imposed in one case is not necessarily required in another case.

Although it is unnecessary to consider the question of whether the presence of a GFCI would have prevented the accident and/or injuries, we nonetheless agree with the trial court in that regard also. A GFCI is a device which detects a variance in the amperage between the neutral and hot wires. As testified to by the expert, when the variance exceeds 6 miliamps the GFCI will break the circuit, thus stopping the flow of electricity. However, he also testified that for a split second, prior to the tripping of the GFCI, an individual would still get shocked, even though it would only be for a very short time. In addition, the testimony also reflects that it is possible that a GFCI may not break the circuit if the flow of electricity through an individual returns through the neutral wire. In such an instance a variance would not be present, thus the GFCI would not trip.

In any case, plaintiff has not carried her burden of proving by a preponderance that the GFCI would have prevented her injuries. In attempting to prove that an omission is a cause in fact of an accident, plaintiff must show that but for the omission the accident and resulting injuries would not have occurred.

For the foregoing reasons, the judgment of the lower court is affirmed. Appellant to pay all costs of this appeal.

AFFIRMED.

      . The general contract is made part of the subcontract with NRG and therefore its terms apply to both defendants.

      . There is testimony that one construction worker was present in the building on the date of the accident, he was in another part of the building, and was not performing any construction work.

      . Although not qualified as an expert, Mr. Ames testified to being a graduate registered architect engineer. At the time of the accident he was employed by GSA as buildings manager.

      . A reading of Kent and Hebert makes this abundantly clear since the “duty” imposed in Hebert was apparently greater because of the factual differences with the Kent case.


source: Caselaw Access Project

author: WARD, Judge. BARRY, Judge,

license: Public Domain

text:
    Saundra Saulberry CAMPBELL, on Behalf of Arcina D. CAMPBELL, Clarence Caldwell, Jr. and Matashia Alita Caldwell and Sandra Saulberry Campbell v. STATE of Louisiana Through the DEPARTMENT OF HIGHWAYS.
    No. CA 0493.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 6, 1983.
    Writ Denied Dec. 9, 1983.

      Gerald R. Alonzo, Clyde Ramirez, Gretna, for plaintiffs, appellees.
    Philip K. Jones, Norman L. Sisson, Marshall Wroten, Robert J. Jones, Jesse S. Guil-lot, Baton Rouge, for defendants, appellants.
    Before WARD, BARRY and CHIASSON, JJ.
   WARD, Judge.

This lawsuit arises out of an accident that occurred on March 24, 1976, on the Dan-zinger Bridge over the Industrial Canal in New Orleans. Two of plaintiff’s minor children were injured in the accident and a third, plaintiff’s ten year old daughter, died as a result of injuries sustained in the accident. Plaintiff, Saundra Campbell, as legal representative of her three minor children, brought suit against the State of Louisiana through the Department of Highways. Plaintiff alleged that the accident was caused solely by a defect in the surface of the bridge which, she argues, made the bridge unreasonably dangerous. Trial was before the Judge and he rendered judgment against the State. Mrs. Campbell was awarded $31,158.00 for the medical expenses, death and funeral expenses of Mat-ashia Campbell. She was awarded $17,-643.55 for the medical expenses and general damages sustained by her son, Clarence Caldwell, Jr., and $44,337.80 for general damages and medical expenses incurred by her minor daughter, Arcina Campbell. The State has appealed the finding of liability. After reviewing the evidence in light of the applicable legal principles, we affirm the judgment of the trial court.

The accident occurred during rainy weather. Mrs. Campbell’s three children were passengers in a car driven by Gerald L. Armstrong, a friend of the Campbells. Armstrong’s car went into a skid on the bridge after he applied his brakes when a car in front of them slowed down for an unknown reason. Although travelling at only 20-25 m.p.h., the car in which the children were riding skidded into the opposite lane of traffic after braking and, after colliding with another vehicle, the car hit the guard rail of the opposite lane, spun around, and hit the guard rail again.

The trial court found the State liable under Civil Code Article 2317 which provides, “[w]e are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. ...” In Jones v. City of Baton Rouge, 388 So.2d 737 (La.1980), the Supreme Court held that municipalities and other public bodies may be held liable under C.C. Art. 2317 for damages caused by things in their custody. Liability under C.C. Art. 2317 is based not on negligence but on legal fault. “Liability is a consequence of the fact of ownership and custody in itself, not of the breach of a duty.” Jones, supra, p. 740. Thus, in order to recover under C.C. Art. 2317, plaintiff need only prove that the thing which caused the damage was in the care or custody of the defendant, that the thing had a vice or defect — that is, that it occasioned an unreasonable risk of injury to another, and that his injury was caused by the defect. Jones v. City of Baton Rouge, supra at p. 739. The owner or custodian of a defective thing may escape liability under C.C. Art. 2317 only by showing that the harm was caused by the fault of plaintiff, fault of a third person, or irresistible force. Jones v. City of Baton Rouge, supra at p. 740.

On appeal, the State first argues that the bridge was in reasonably safe condition. The trial court concluded that the surface of the bridge created an unreasonable risk of injury to persons driving over it. This conclusion is supported by the testimony of an accident reconstruction expert, Raymond Burkart. Mr. Burkart conducted several skid tests on the bridge and discovered that the bridge’s surface when wet has a skid factor comparable to a surface consisting of packed snow. He testified that if a driver brakes on such a surface at 20 m.p.h., the vehicle will inevitably go into a skid spanning 60 feet or more. According to his testimony, the dangerousness of the surface is augmented by abrupt changes from a concrete surface to a metal grid surface. There are no warning signs to alert a driver to this hazard.

Mr. Burkart’s testimony was corroborated by the testimony of Dr. Frank Griffith, an expert in physics. He also found the surface comparable to packed snow and noted that the bridge was without barriers between opposing lanes and was so narrow that any rotation occurring during a skid would throw a car into oncoming traffic. The testimony of Mr. Burkart and Mr. Griffith was uncontroverted; the State did not present any witnesses or other evidence to challenge their conclusions. Therefore, we conclude that the trial court had ample evidence upon which to base its finding that the surface of the bridge created an unreasonable risk of injury.

The State next argues even if the bridge is found unreasonably dangerous that the trial court erred in finding that the condition of the bridge surface caused the accident. In Canty v. Terrebone Parish Police Jury, 397 So.2d 1370 (La.App. 1st Cir.1981), writ denied 401 So.2d 988 (La.1981), the court noted that a plaintiff seeking to recover under C.C. Art. 2317 must prove that the defect complained of was a cause-in-fact of the injury. A defect is a cause-in-fact if it is a substantial factor in bringing about the harm. Canty v. Terrebone Parish Police Jury, supra at 1374. The trial court’s finding of causation by the defect is supported by the testimony of the accident reconstruction expert, Mr. Burkart, who was of the opinion that the bridge surface was the major cause of the accident.

Additionally, there is no evidence of the fault of a third person. Although it was established that a car in front of the one carrying the children braked for no apparent reason, proof of such braking does not in itself amount to proof of negligence. Nor was it shown that the driver of the car with the children contributed to the accident by applying his brakes abruptly. As plaintiff’s experts testified, any braking at 20 m.p.h. would be likely to result in a skid. This conclusion was buttressed by Mr. Bur-kart’s testimony that he could conduct his tests travelling no faster than 20 m.p.h. because he feared injury would result even under controlled testing conditions.

Neither did the State show that the accident was caused by an irresistible force, which has been defined as an unforeseen occurrence where damage resulting has no causal relationship whatsoever with failure of the owner or custodian to keep the object in reasonably safe condition. See Olsen v. Shell Oil Co., 365 So.2d 1285 (La.1978). Although the rainy weather was certainly a contributing factor to the accident, it cannot be said that the rain was unforeseeable or that the condition of the bridge surface had no causal relationship to the damage. Therefore, we affirm the finding of the trial court that the defective surface of the bridge was the cause of the accident and resulting injuries.

For the above reasons, the judgment of the trial court is affirmed, but the case is remanded to the District Court for determination of cost, which are assessed against the State. La.R.S. 13:5112.

AFFIRMED.

BARRY, J., concurs with written reasons.

BARRY, Judge,

joins the majority and assigns reasons.

Whether these facts are considered under Art. 2317 (strict liability) or Art. 2315 (negligence) the question is: Was the driver (his conduct) “reasonable” as it relates to the “thing” (the bridge roadway)? Was the Highway Department’s actions (or lack of) unreasonable?

Unreasonableness is similar to a determination of ordinary negligence. Here the plaintiff clearly' proved the bridge surface was a defect which presented an unreasonable risk of injury. The majority rightfully pretermits the question of ordinary negligence. This defendant certainly should have known and prevented the causation risk and any inability to have such knowledge is no defense under Art. 2317.

Under these facts the Highway Department’s conduct was unreasonable and the sole cause of the accident. See Entrevia v. Hood, 427 So.2d 1146 (Sup.Ct.1983).


author: WARD, Judge.

text:
    STATE of Louisiana v. Weldon MOORE.
    No. KA-0735.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 6, 1983.
    Writ Denied Dec. 9, 1983.
    Elizabeth Cole, New Orleans, for defendant-appellant.
    Harry F. Connick, Dist. Atty., Orleans Parish, John H. Craft, Asst. Dist. Atty., Orleans Parish, Susan Scott Hunt, New Orleans, for plaintiff-appellee.
    Before WARD, GULOTTA and BYRNES, JJ.
   WARD, Judge.

The defendant, Moore, was convicted of violating La.R.S. 14:69, receiving stolen property, a Moped motorbike with a value of $770.00. He was sentenced under La. R.S. 15:529.1 as a second offender to serve 8 years at hard labor.

Although Moore has made three assignments of error, the issue in each one is whether the Trial Judge erred when he included in his charge to the jury a definition of “reasonable doubt.” In his charge, the Trial Judge stated:

... The defendant is not required to prove his innocence, but may rest upon the presumption of innocence until it is overthrown by positive, affirmative proof presented by the state. The burden, therefore, ladies and gentlemen, is upon the State of Louisiana to establish to your satisfaction, and beyond a reasonable doubt, the guilt of the defendant as to the crime charged. If you entertain a reasonable doubt as to any fact or element necessary to constitute the guilt of the defendant, it is your sworn duty to give him the benefit of that doubt and find him not guilty. This doubt must be a reasonable one, that is, one founded upon a real, tangible, substantial basis, and not upon a mere caprice, fancy or conjecture. It must be such a doubt as would give rise to a grave uncertainty raised in your mind by reason of the unsatisfactory character of the evidence. Likewise, if the state has proved the guilt of the defendant, to your satisfaction, and beyond a reasonable doubt, you should return a verdict of guilty. ..

Moore argues that the charge has the effect of confusing the concept of reasonable doubt and of shifting the burden of proof away from the State and of violating his constitutional guarantees of due process and a fair trial. The State argues, however, that the charge was a permissible exercise of the discretion of the Trial Judge.

The Trial Judge’s discretion to define “reasonable doubt” is specifically set out in La.Code of Criminal Procedure Art. 804:

A. In all cases the court shall charge the jury that:
* * * * * *
(3) It is the duty of the jury if not convinced of the guilt of a defendant beyond a reasonable doubt, to find him not guilty.
The court may, but is not required to, define “the presumption of innocence” or “reasonable doubt” or give any other or further charge upon the same than that contained in this article.

Jury charges defining presumption of innocence and reasonable doubt have been recently analyzed in several cases by the Louisiana Supreme Court, and appellant Moore primarily relies for his claim of error on State v. McDaniel, 410 So.2d 754 (La.1982). In that case, the Trial Court had instructed the jury that:

“ ⅜ * * The burden is therefore upon the State to establish to your satisfaction and beyond a reasonable doubt the guilt of the defendant as to the crime charged in the Bill of Indictment or any lesser responsive verdict included in it. If you entertain any reasonable doubt as to any fact or element necessary to constitute the defendant’s guilt, then it is your sworn duty to give him the benefit of that doubt and return a verdict of acquittal. This doubt must be a reasonable one, that is, one found upon a real, tangible substantial basis and not upon mere caprice, fancy or conjecture. It must be such a doubt that would give rise to a great uncertainty raised in your minds by reason of the unsatisfactory character of the evidence. It must be one that would make you feel morally uncertain as to the defendant’s guilt. If after giving a fair and impartial consideration to all the facts in the case you find the evidence unsatisfactory upon any single point in-dispensibly necessary to constitute the defendant’s guilt, this would give rise to such a reasonable doubt as would justify you in rendering a verdict of NOT GUILTY. However, you are prohibited by law and your oath from going beyond the evidence to seek for doubts upon which to acquit the defendant. You must confine yourselves strictly to a dispassionate consideration of the evidence presented upon the trial. You must not resort to extraneous facts or circumstances in reaching your verdict.” [emphasis added]

In finding, that the charge in McDaniel was reversible error, the Court wrote:

First, although portions of the charge are correct, by redefining “reasonable doubt” as “a doubt that would give rise to a great uncertainty” and “one that would make you feel morally uncertain as to the defendant’s guilt,” the trial court’s instruction created a reasonable possibility the jury was misled into applying an insufficient standard. Even when the phrase “great uncertainty” is viewed in the context of the whole charge it overstates the degree of uncertainty required for a reasonable doubt.
* sfc * * ⅜: *
“Morally uncertain” could be interpreted to mean that the uncertainty must be based on feeling, i.e., lack of moral indignation rather than a reasonable doubt about an essential fact.
Second, that portion of the charge was clearly wrong by which the trial court prohibited the jury from “going beyond the evidence to seek for doubts upon which to acquit the defendant” and admonished it to confine itself to “consideration of the evidence presented upon the trial”.. ..

In both State v. Taylor, 410 So.2d 224 (La.1982) and State v. Stramiello, 392 So.2d 425 (La.1981) the charge to the jury defined “reasonable doubt” as one which would “give rise to a grave uncertainty”, and in each case, the Louisiana Supreme Court held that the charge was not erroneous or prejudicial. The “grave uncertainty” definition is the precise language used in the present case. The present charge is easily distinguishable from the jury charges in McDaniel. First, in addition to using “grave uncertainty” rather than “great uncertainty”, in the instant case, there is no reference to “morally uncertain” and no implication that the uncertainty from which a reasonable doubt may arise must be based on a feeling or on moral indignation. Next, there is nothing in the instant charge which implies that a reasonable doubt cannot arise because of a lack of evidence: the charges in the instant case did not instruct the jury, as the charges in the McDaniel ease did, that in reaching a verdict the jurors were to confine themselves to the evidence presented. As the Louisiana Supreme Court has said, the wisdom of attempting to define reasonable doubt in jury charges is questionable. However, we conclude in the instant case, when considering the charges as a whole, the jury charges were not erroneous.

Finally, although not assigned as error, we have reviewed the record for the sufficiency of the evidence in accordance with State v. Raymo, 419 So.2d 858 (La.1982). The standard of review in direct evidence cases is set forth in Jackson v. Virginia, 343 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) and in State v. Fuller, 414 So.2d 306 (La.1982). The reviewing court must determine whether, viewing the facts in the light most, favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt.

Moore was convicted of receiving stolen things under R.S. 14:69. In State v. Walker, 350 So.2d 176 (La.1977), the court enumerated the four essential elements that must be proven to sustain a conviction of this crime: (1) that the item was stolen; (2) that the item was of value; (3) that the defendant knew or should have known the property was stolen; and (4) that the defendant intentionally procured, received, or concealed the property.

The victim testified that his motorbike, a Moped, was taken from his carport on the date of the offense and he had not given anyone permission to take it. Moore testified that he had taken the motorbike without the owner’s permission. That the motorbike was stolen was clearly proved. The State introduced the bill of sale to show the purchase price of the Moped, and the owner testified that the motorbike cost $770.00 when he purchased it two months before the offense. Therefore, the value of the stolen property was proved to be over $500.00, as charged in the bill of information.

Moore’s own testimony that he took the Moped without the owner’s permission proved both that he knew the property was stolen and that he intentionally procured and received the property. Therefore, all four elements of the crime of receiving stolen things, as set forth in Walker, supra, were proved by the State. The evidence, viewed in the light most favorable to the prosecution, could have led a rational trier of fact to find appellant guilty beyond a reasonable doubt.

The conviction and sentence are affirmed.


text:
    SUCCESSION OF Arthur ACOSTA.
    No. CA-0241.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 6, 1983.
    Writ Denied Dec. 9, 1983.
    Kirk A. Vaughn, Edward S. Bopp, Arabi, for The Estate of Arthur Acosta.
    Max Nathan, Jr., Carole Cukell Neff, Sessions, Fishman, Rosenson, Boisfontaine & Nathan, New Orleans, for appellee, Mrs. Albertha Acosta.
    Roy A. Raspanti, New Orleans, for appellant, John Martinez.
    Before WARD, AUGUSTINE and WILLIAMS, JJ.
   WARD, Judge.

This appeal involves a dispute over funds left after the liquidation of a business, an Exxon distributorship which was operated from 1947 to 1977 as a sole proprietorship owned by Arthur Acosta. In 1977, a corporation was formed to operate the distributorship business. One half of the initial capital funds was contributed by Arthur and his wife, Albertha. The other half was contributed by John Martinez, who now claims he has a right to one-half of the funds left in the hands of the liquidator of the business.

The Trial Court held that Martinez is not entitled to funds left in the hands of the liquidator because the corporation never assumed the distributorship, rather the business continued to operate as a sole proprietorship even after the filing of the incorporation papers. The corporation never acquired any other assets, and even though the sole proprietorship of Arthur Acosta used the name, Arthur Acosta, Inc., the Trial Court found that the business continued as a separate entity from the corporation, whose purpose was never fulfilled.

The Trial Court found that, “The distributorship business that had been in existence for over 30 years when Mr. Martinez was employed continued to operate its business in the same manner subsequent to Mr. Martinez’s employment as it had previously and that Mr. Martinez merely served in the capacity of an employee in the business .... ”

Additionally, the Trial Court found that after Arthur Acosta’s death, the business was operated by Mrs. Acosta in the form of a sole proprietorship and constituted her separate property. Most importantly, the Trial Court found that the Exxon contracts were the essence of the business. Martinez has appealed the Trial Court’s decision.

For the following reasons, we affirm the Trial Court’s holding that Martinez is not entitled to one-half of the funds remaining after the liquidation of the business, that he is entitled only to the refund of his contribution to the capitalization of a corporation that never became operative.

Arthur Acosta, the sole proprietor of the business from 1947 to 1977, died on September 24,1978. Prior to the liquidation of the business in June, 1979, in Succession of Arthur Acosta, 396 So.2d 499 (La.App. 4th Cir.1981), this Court had occasion to consider some of the facts pertinent to our review of the instant case. In the earlier case, an inventory was filed in the Succession proceedings and it contained the following item:

“VII. BUSINESS — Arthur Acosta and Arthur Acosta, Inc., Exxon Distributorship (the ownership of this business is in contest and, therefore, the value of the interest of the estate has not been put in this inventory pending the decision of the court as to the division of the interest.)”

Albertha Acosta filed a rule to traverse the inventory, alleging that the Exxon distributorship was her separate property and that John Martinez had no interest in it. The Trial Court held that a corporation, Arthur Acosta, Inc., was in existence and that John Martinez was an owner of one-half interest in that corporation. The Trial Court also held that the Exxon contracts were not a corporate asset but were the community property of Arthur and Albertha.

On appeal, this Court reversed the Trial Court’s finding that the Exxon contracts were' community property and found them to be the separate property of Albertha Acosta. Significantly, no appeal was taken by John Martinez from the Trial Court’s judgment that the Exxon contracts are not Corporate assets.

These additional facts shed light on the background of the current litigation. This Court’s earlier opinion in Succession of Arthur Acosta, supra, found:

In 1942, Arthur Acosta, sole proprietor, commenced business as a distributor of Exxon gasoline and petroleum products. In operating the business, Arthur entered into successive annual distribution or sales agreements with Exxon Corporation, which set forth the quantities of gasoline, oil, and other products that would be delivered to Acosta. The contract was re-negotiated each year and each annual agreement was signed by Arthur.
In 1977, Arthur incorporated his business with an initial cash capitalization of $12,000. The two principal shareholders were Arthur and one John Martinez, who earlier had worked in Arthur’s business part time. In was Arthur’s intention in incorporating that Exxon would enter into the annual distribution and sales contracts with the corporation rather than Arthur individually. Exxon refused to do so, however, and required that Arthur continue to sign the agreement individually.
When Arthur died on December 24, 1978, a distribution agreement dated May 18,1978 between Exxon Company, U.S.A. and Arthur Acosta was in effect. It continued until expiration on March 31,1979.
On April 24, 1979, Exxon and Mrs. Acosta entered into a new sales agreement effective April 1, 1979 and running through March 31, 1980.

In the instant case, Martinez argues that Arthur Acosta and his wife, Albertha, formed a contract with him under which they promised to transfer to him one-half ownership in the petroleum products distribution business in exchange for his services and six thousand dollars. The record reveals that Martinez and the Acostas discussed the possibility of Martinez acquiring an ownership interest in the business. As a result of these discussions, Martinez made out a six thousand dollar check to Arthur Acosta on January 27, 1977. This check was deposited into a personal bank account of the decedent but it was carried on the books of the corporation as part of the original capitalization of the corporation, Arthur Acosta, Inc. This was the factual basis for this Court’s earlier holding in Succession of Arthur Acosta, supra, that Martinez is an owner of a one-half interest in the corporation.

According to the evidence, Martinez understood that his six thousand dollar cash contribution was to form one-half of the capitalization for the corporation. The record is also clear, the corporation never acquired any other assets. The Exxon contracts, which have previously been held by this Court to be the separate property of Albertha Acosta, formed the essence of the business. The record and prior appellate holding of Succession of Arthur Acosta, supra, clearly support the Trial Court’s conclusion that Martinez has no ownership interest in the Exxon contracts.

Upon finding that the corporation never became an operative entity, the Trial Court ordered the return of the six thousand dollar initial capitalization to Martinez. The Trial Court noted that Martinez had been fully compensated for his services as an employee of the business. John Martinez argues that, as one-half owner of the corporation, he is entitled to a portion of the good will accumulated from the operation of the business because the business used the name Arthur Acosta, Inc. The Trial Court found that more than half of the time in which the corporation’s name was used in the operation of the business, the parties were operating under an agreement pending a determination of the respective ownership interest. In his reasons for judgment, the Trial Judge explained, “[Ajfter Mr. Martinez asserted that he owned an interest in the distributorship business subsequent to Mr. Acosta’s death, counsel for the Succession for the executors, for Mrs. Acosta and for Mr. Martinez met and agreed to continue operating the business the way it had been prior to that time until such time as the determination was made by the court regarding the respective ownership interest of the parties in the business. A temporary agreement was also made with the stipulation that it would not prejudice anyone’s claim to ownership. Under that agreement, Mrs. Acosta continued to handle the business books and records from the Summer of 1979 through June of 1981, when the business went into liquidation, and Mr. Martinez continued to make deliveries to the customers and collect payments from them.”

We agree with the Trial Court that use of the corporate name pursuant to this agreement cannot be relied on by either party to assert that the corporation established good will during that time. Additionally, the owner of an asset or business is the owner of the good will generated through the asset or business. And Martinez may not claim an ownership interest in the good will generated by the Exxon contracts, which have been held to be the separate property of Albertha Acosta. Any good will generated through the contracts after Arthur Acosta’s death belongs to Alb-ertha Acosta.

In conclusion, we find that Martinez contributed six thousand dollars to the capitalization of a corporation, Arthur Acosta, Inc. The corporation failed in its purpose; it never became the embodiment of the distributorship business owned by the Acostas. After the incorporation, the parties continued to run the business as a sole proprietorship and Martinez was compensated for his services as an employee. The essence of the business, the Exxon contracts, are not corporate assets but belong to Albertha Acosta individually. Any good will derived through these contracts belongs to Albertha Acosta. Accordingly, we affirm the judgment of the Trial Court which ordered the return of the six thousand dollar contribution toward the corporate capitalization to Martinez.

For the reasons discussed above, we affirm the judgment of the Trial Court.

AFFIRMED.


author: WILLIAMS, Judge. BARRY, Judge,

text:
    Rosalie M. MUSSO v. George AIAVOLASITI.
    No. CA-0704.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 6, 1983.

      LeRoy A. Hartley, New Orleans, for plaintiff-appellant.
    Arthur C. Reuter, Reuter & Reuter, New Orleans, for defendant-appellee.
    Before BARRY, KLEES and WILLIAMS, JJ.
   WILLIAMS, Judge.

This is an appeal from a decision of the trial court dismissing plaintiff’s petition on the basis of three peremptory exceptions filed by defendant: (1) no cause of action; (2) no right of action; and (3) prescription.

On May 3, 1974, Frank Musso sold 2542 Canal Street (Musso’s Bar) to Josephine Russo, wife of/and Vincent Aiavolasiti. This sale was recorded. The property was sold two weeks later to the Continental Savings and Loan Association, which in turn, sold the property to Josephine Russo, individually, on the same date. Defendant obtained a judgment against Miss Josephine Russo and her husband Vincent Aiavolasiti individually and doing business as Swanson’s Restaurant. This judgment was signed July 2, 1975.

In 1977, defendant George Aiavolasiti garnished the rent being paid to Josephine Russo on the premises of 2542 Canal Street. This rent was paid under a written lease between Russo and the lessee. The garnishment was an execution of the judgment previously obtained by defendant against Russo and her husband.

Plaintiff bases her claim that the rents actually belonged to her husband and were wrongfully garnished on an allegation that the transfer from her husband to Josephine Russo and Vincent Aiavolasiti was actually a simulated sale made in order to escape certain taxes, and that an unrecorded counter letter was executed in which Josephine Russo acknowledged that Musso was the actual owner of the property. Plaintiff argues that defendant knew that the sale was simulated and was aware of the existence of the counter letter and that her husband’s attorney advised defendant’s attorney of the existence of the counter letter at the time of the original garnishment.

Defendant filed exceptions of prescription, no cause of action, and no right of action, all of which were granted by the trial court. Prescription, no cause of action, and no right of action are all peremptory exceptions. La.C.Civ.Pr. art. 927.

Defendant argues that because this action was brought more than one year after the garnishment was approved by the court, that plaintiff is prohibited now from bringing this action.

Plaintiff relies upon the decision of Poole v. American Bank & Trust Co., 416 So.2d 1365 (La.App. 3d Cir.1982). In Poole, the court held that prescription began to run for a wrongful seizure action from the time that the seizure is declared invalid. Plaintiff argues that because the seizure in the instant case has not yet been declared invalid, prescription has not begun to run. Defendant attempts to distinguish Poole from this case by pointing out that the seizure in that case was nullified in the same proceedings in which a judgment for wrongful seizure was obtained. Defendant also refers us to Hernandez v. Harson, 237 La. 389, 111 So.2d 320 (La.1959), in which the Louisiana Supreme Court stated that the parties have one year from the final determination of their rights to bring an action for wrongful seizure. Defendant argues that the final determination of the parties’ rights in the present case was made when the seizure was ordered on September 20, 1977, and, therefore, more than one year has elapsed.

The judgment rendered by the court in September, 1977, was a final judgment, from which plaintiff had one year to bring an action for wrongful seizure. Hernandez v. Harson, supra. In order to attack a final determination of the parties’ rights, plaintiff would have to have the original judgment nullified.

An attempt to annul a judgment on the basis of fraud or ill practices must be brought in a direct, not collateral, action. La.C.Civ.Pr. art. 2004, Comment (d). Le-Glue Buick, Inc. v. Smith, 390 So.2d 262 (La.App. 3d Cir.1980). Furthermore, article 2004 requires that an action must be brought within one year of discovery of the fraud or ill practices. Plaintiff alleges that defendant knew of the counter-letter at the time of the garnishment, which is more than one year before the filing of this action.

Any action plaintiff may have had against defendant, either direct or collateral, has prescribed. The trial court, therefore, correctly granted the exception of prescription.

Even assuming arguendo, that the trial court’s ruling on the exception of prescription was in error, the plaintiff also failed to state a cause of action.

For the purposes of an exception of no cause of action, all facts well pleaded in the petition are accepted as true, and all doubts resolved in the petitioner’s favor. No other evidence is considered by the trial court. Murphy Oil Company v. Gonzales, 316 So.2d 175 (La.App. 4th Cir.) writ den. 320 So.2d 558 (1975); Elliott v. Dupuy, 242 La. 173, 135 So.2d 54 (La.1961).

It is clear from plaintiff’s petition that the basis for her claim is that defendant knew of the unrecorded counter letter between Musso and Vincent Aiavolasiti. An unrecorded document affecting immovable property is not binding upon third parties. See, e.g., Julius Gindi Co. v. EJW Enterprises, 438 So.2d 594. Whether George Aiavolasiti knew of the document is irrelevant in the present case because the document is not binding upon him.

Assuming all of plaintiff’s allegations to be true, she nevertheless did not assert a cause of action. Plaintiff does not allege any other inconsistencies or improprieties in the garnishment proceedings. For these reasons, the trial court properly granted this exception.

For the foregoing reasons, the decision of the trial court is affirmed.

AFFIRMED.

BARRY, J., concurs.

BARRY, Judge,

concurring:

The primary issue is who had the right to the rent. There was a written lease between Mrs. Russo and the lessee, therefore plaintiff has no cause of action.


author: WILLIAMS, Judge.

text:
    STATE of Louisiana v. Hancel Reddick BURAS.
    No. KA-0683.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 6, 1983.
    Charles T. Williams, Gerdes & Valteau, New Orleans, for defendant-appellant.
    Leander H. Perez, Jr., Dist. Atty., Frank Klein, Asst. Dist. Atty., Point-a-la-Hache, for plaintiff-appellee.
    Before BARRY, KLEES and WILLIAMS, JJ.
   WILLIAMS, Judge.

This is an appeal from a jury verdict finding defendant, Hancel G. Reddick, a/k/a Hancel G. Buras, guilty of aggravated kidnapping, in violation of La.R.S. 14:44. Defendant bases this appeal on two assignments of error.

FACTS:

Sixteen-year old Calvin Joseph Buras [Joe] was in his front yard on the afternoon of December 3, 1980, shooting rats near the chicken pen, when an automobile drove up. When Joe approached the automobile, defendant and his brother, both wearing ski-masks, pulled a gun on the boy and forced him into the car. Joe was then handcuffed, blindfolded, and placed in the trunk of the vehicle. Joe spent the next two days either handcuffed to a beam inside a closet in defendant’s apartment, or blindfolded and handcuffed in the trunk of an automobile.

Defendant made a series of phone calls to the victim’s parents, threatening to kill their son if $400,000.00 ransom were not delivered. At one point, defendant said he would cut off Joe’s arm and deliver it to the boy’s parents if they did not come up with the ransom money more quickly.

At about 2:00 p.m. on December 5th, officers responding to a suspicious vehicle complaint stopped the defendant’s vehicle. Hearing a knocking sound coming from the trunk, the officers opened it up and discovered Joe handcuffed and blindfolded. Defendant was placed under arrest.

On January 19, 1981, defendant was indicted by a grand jury for aggravated kidnapping. He pleaded not guilty and not guilty by reason of insanity. After a trial by jury, defendant was unanimously found guilty and was sentenced to mandatory life imprisonment without benefit of parole, probation, or suspension of sentence.

ASSIGNMENT OF ERROR NO. 1

Defendant contends that the lower court erred in refusing to issue a subpoena duces tecum ordering the production of information concerning the Succession of Hubert Buras.

Defendant testified that he believed his father, evidently the first cousin of the victim’s father, was not receiving oil royalties that were due him from the succession, whereas the victim’s father was. The entire kidnapping scheme, defendant alleges, was carried out only to glean information from the victim’s parents concerning the succession. Defendant argues that the essential elements of aggravated kidnapping were not met because he wanted information, but not money. He also contends that the existence of a blood relationship between himself and the victim is evidence that defendant had no desire to harm the victim, but rather was merely investigating a “family matter.”

The decision whether to issue a subpoena duces tecum rests within the discretion of the trial judge. La.C.Cr.P. art. 732. The lower court’s refusal to grant the subpoena was not an abuse of discretion because the consanguinity of the parties and the existence of the succession were not necessary to establish the essential elements of the crime.

La.R.S. 14:44. provides in pertinent part:

Aggravated kidnapping is the doing of any of the following 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. ..

Defendant’s argument on appeal is that because he had no intent to harm the victim, the elements of aggravated kidnapping were not established.

The intent need not be to obtain money but can be to gain “any advantage” or to gain “anything of apparent or prospective value.” According to the definitional statute of the Criminal Code, “ ‘Anything of value’ must be given the broadest possible construction.... It must be construed in the broad popular sense of the phrase, not necessarily synonymous with the traditional legal term ‘property.’ ” La.R.S. 14:2(2).

The jury obviously determined that it was unlikely that defendant intended only to look into possible succession property due his father. The victim’s father was only one of 25 possible heirs. He testified that he knew nothing of any oil royalties due him from the Hubert Buras Succession. Certainly there would be methods for obtaining such legal information more simple than taking the son of some possible heir at gunpoint, locking him up, and threatening his mutilation or murder should his parents not deliver a huge sum of money.

Even assuming defendant’s tenuous argument were true, he would still possess the intent required by statute. He intended to force information concerning the succession from the victim’s parents. This was certainly an “advantage,” or something of “apparent present or prospective value.” The subpoena of the succession information, therefore, could not have exculpated defendant of the crime charged.

Defendant also contends that the fact that the victim is his relative (third cousin) would prove that he had no intent to harm the victim. On appeal defendant argues that the refusal to subpoena the information which would prove this relationship deprived him of a defense.

Intent to harm the victim, however, is not one of the elements of the crime of aggravated kidnapping. Even had defendant obtained the genealogical information demonstrating the relationship and succeeded with his argument, it would have been completely irrelevant.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 2:

Defendant contends that he filed a motion to appoint a sanity commission at his indictment on January 19, 1981, and that the court did not appoint the commission until August, 1982.

Defendant asserts that a sanity commission should have been appointed, of right, within thirty days of the filing of a motion. He contends that he filed a motion to appoint a sanity commission on January 19, 1981, and that the nineteen month delay until the court’s appointment of a commission in August, 1982, prejudiced him and denied him “due process rights.”

There is no evidence in the record demonstrating that defendant filed a motion to appoint a sanity commission on January 19, 1981. Mention of his filing such a motion does not appear in the record until March 23, 1982, when the court informed defendant that a sanity hearing was fixed for April 12, 1982.

Article 650 of the Code, of Criminal Procedure reads:

When a defendant enters a combined plea of “not guilty and not guilty by reason of insanity,” the court may appoint a sanity commission as provided in Article 644 to make an examination as to the defendant’s mental condition at the time of the offense. The court may also order the commission to make an examination as to the defendant’s present mental capacity to proceed. Mental examinations and reports under this article shall be conducted and filed in conformity with Articles 644 through 646. (Emphasis added).

A defendant is not entitled of right to an examination and evaluation of his sanity at the time of an offense. State v. Taylor, 347 So.2d 172 (La.1977). Because the law presumes sanity, a mental examination is in order only when the court “has reasonable grounds to doubt defendant’s mental capacity to proceed.” La.C.Cr.P. Art. 643.

Defendant erroneously alleges that he was entitled to the hearing thirty days after moving for one. Again, it is not enough that the defense has filed a motion arguing the defense, but there must be sufficient evidence to raise a reasonable doubt as to such capacity. State v. Clark, 367 So.2d 311 (La.1979). The thirty day period to which defendant refers is the time allowed for filing of the sanity commission’s report after the ordering of the appointment of that commission by the court, and not the mere presentation of a motion by a party. La.C.Cr.P. Art. 645. This time limitation is the only one imposed by the Code for the conduct of the examination, the fixing of the hearing, or the determination of defendant’s mental condition. It must be noted in addition, however, that the article provides that “[t]he time for filing may be extended by the court.” If the defendant cannot prove prejudice, any error which occurs because of a delay will be deemed technical, insubstantial, and harmless. State v. Vincent, 338 So.2d 1376 (La.1976).

Defendant failed to prove prejudice. The psychiatrists conducting the sanity examination were questioned in depth by defense counsel regarding the effect of the delay upon the outcome of the examination. They admitted that an examination conducted soon after a crime would generally be more reliable. Both psychiatrists stated unequivocally, however, their expert opinion that the defendant was neither insane at the present time, nor during the commission of the crime, based upon the skillful orchestration of the complex series of events surrounding the crime, and the finding of sanity at the time of the examination.

The appointment of a sanity commission to inquire into the mental condition of the accused is addressed to the sound discretion of the trial judge, and his ruling will not be disturbed on appeal absent a clear showing of abuse of discretion. State v. Johnson, 249 La. 950, 192 So.2d 135 (1966), cert. den. 388 U.S. 923, 87 S.Ct. 2144, 18 L.Ed.2d 1374 (1967); State v. Nix, La., 327 So.2d 301, cert. den. 425 U.S. 954, 96 S.Ct. 1732, 48 L.Ed.2d 198 (1976); State v. Wilkerson, 403 So.2d 652 (La.1981). Whatever delay passed before defendant’s mental examination, there was no prejudice to defendant indicating such an abuse of discretion.

This assignment of error is without merit.

For the foregoing reasons defendant’s sentence and conviction are affirmed.

AFFIRMED.


text:
    SUCCESSION OF Charles TOLMAS.
    No. CA-0729.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 6, 1983.
    Rehearing Denied Nov. 22, 1983.
    Writ Denied Jan. 27, 1984.
    Joseph V. Bologna, New Orleans, for appellant.

      Henry W. Kinney, III, New Orleans, for appellee.
    Before BARRY, KLEES and WILLIAMS, JJ.
   WILLIAMS, Judge.

This is an appeal from a decision of the trial court requiring appellant, Cecile Bres-sler Tolmas, to render an annual accounting as administratrix of her husband’s succession.

Charles Tolmas died fifteen years ago. His wife was appointed administratrix of the succession. She is also the usufructuary of the succession. No annual accountings have been filed since the succession was opened. A rule to show cause why the administratrix should not be removed, ordered to render an accounting and why a new administratrix should not be appointed was filed by Cheryl Horton Kolb an heir to the succession. After a hearing, the trial court ordered the administratrix to file an accounting as required by Article 3331 of the Louisiana Code of Civil Procedure. It is from this order that Mrs. Tolmas now appeals.

The single issue before us is whether an administratrix’s duty to file an annual accounting is abrogated simply by virtue of her being a usufructuary who is not required to do so.

Article 3331 of the Louisiana Code of Civil Procedure requires that:

“[A] succession representative shall file an account annually and at any other time when ordered by the court on its own motion or on the application of any interested person.”

A usufructuary, however, has a less stringent duty to account. He or she must render an accounting only at the termination of the usufruct. See Succession of Grubbs, 182 So.2d 203 (La.App.2d Cir.1965).

Appellant argues that because procedural law is subordinate to substantive law, the requirement that an administratrix render an accounting should not be imposed on a usufructuary. It is our understanding, however, that this rule of statutory construction is applicable only when there is a conflict between the provisions. Succession of Lombardo, 204 La. 429, 15 So.2d 813 (1943). In the case now before us, there is no such conflict. Reading the provisions in pari materia, we find that because Mrs. Tolmas has chosen to accept two positions in her husband’s succession, she must comply with the duties required by both. Cf. Bates v. Garrett Marine Supply, Inc., 368 So.2d 1171, 1173 (La.App.3d Cir.1979). (laws should be construed together to give meaning to all provisions if possible).

We note that our decision is consistent with the strong public policy considerations holding people in fiduciary positions to high standards, which includes accounting to those whom the fiduciaries represent.

For these reasons, the decision of the trial court ordering Mrs. Tolmas to render an accounting within 30 days is affirmed.

AFFIRMED.


text:
    Clemson Wayne DURHAM v. The LOUISIANA STATE RACING COMMISSION.
    No. CA-0720.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 6, 1983.

      Mary Olive Pierson, Cooper, Thompson & Pierson, Baton Rouge, for plaintiff-appellant.
    William J. Guste, Jr., Atty. Gen., Robert A. Barnett, Staff Atty., John E. Jackson, Jr., Asst. Atty. Gen. and Atty. for The Louisiana State Racing Com’n, New Orleans, for defendant-appellee.
    Before BARRY, KLEES and WILLIAMS, JJ.
   WILLIAMS, Judge.

This is an appeal from a decision of the trial court upholding the three year suspension imposed upon plaintiff by the Louisiana State Racing Commission [“Commission”].

On June 14, 1982, a stewards’ ruling was issued suspending plaintiff from racing and referring the case to the Commission for whatever action was necessary. The stewards’ ruling found that post-race tests on a horse trained by Durham established that the horse had been given two prohibited drugs that had not been previously reported to the Commission.

On June 25, 1982, the Commission met to consider a suspensive appeal from that ruling filed by Durham. Durham did not appear at the Commission meeting, and the Commission upheld the ruling of the stewards and suspended plaintiff for three years. Durham eventually showed up at the Commission hearing approximately one-half hour later. He moved for a rehearing which was denied. At that time he complained that he had not been allowed enough time to prepare, and that he did not receive official notice of the hearing until June 22,1983. He did admit, however, that he was informed on June 11, 1982, that the hearing probably would be held on that date.

Plaintiff appeals on the basis that he was denied due process because of two alleged errors on the part of the Commission: (1) lack of timely notice of the hearing, and (2) improper notice of the hearing.

TIMELY NOTICE

The letter sent to plaintiff informing him of the hearing was dated June 15,1982, but he did not receive it until June 22. He argues that this is too little time to prepare an adequate defense, and he thereby has been deprived of his right to due process.

The stewards’ ruling was handed down on June 14, 1982, and on that date plaintiff applied for and was granted a suspensive appeal from that decision. In the request for appeal, he asked that the Commission schedule its hearing on his appeal as soon as possible.

After he received the Commission letter of June 15, plaintiff did not request the continuance or protest in any way the alleged lack of sufficient notice. Furthermore, at the Commission hearing he indicated that he was informed on June 11 that his case was going to be placed on the agenda for that date. He argued, however, that he still would not have had ample time to prepare.

La.R.S. 4:154(F) requires that the Commission grant a hearing within ten days of the receipt of an appeal. Although Durham waived this right in his application for appeal, he nevertheless requested as expedient an appeal as possible. Knowing that the Commission would meet within a short period of time, indeed, requesting it himself, and being informed of the date at least two weeks in advance, he did not contact an attorney or do anything else to prepare for his defense until June 22. Even after his “formal” notification of the hearing date, neither he nor his attorney asked for a continuance or protested the lack of time to prepare a defense. It is important to note also that the plaintiff has been involved in racing for a number of years and is acquainted with the procedure by which the Commission operates.

In Brown v. Sutton, 356 So.2d 965 (La.1978), the Louisiana Supreme Court held:

As a general proposition, it is reasonable to expect one with knowledge of notice of an administrative proceeding affecting his rights not to stand by until the day of the hearing and then for the first time assert lack of notice. (Citations omitted).

Id. at 972.

The nature of racing and the rights of all parties involved, including the public, are important considerations in this case. Due to these considerations, and most importantly, the facts as presented by this case, we cannot find that plaintiff was denied his right to due process by reason of insufficient time to prepare a defense.

IMPROPER NOTICE

Durham argues that the notice of the hearing provided to him by the Commission was improper.

The Commission is governed by the Administrative Procedure Act, La.R.S. 49:951, et seq. La.R.S. 4:154.

La.R.S. 49:955(B) requires that the notice include:

“(1) A statement of the time, place, and .nature of the hearing; (2) A statement of the legal authority and jurisdiction under which the hearing is to be held; (3) A reference to the particular sections of the statutes and rules involved; (4) A short and plain statement of the matters asserted.
If the agency or other party is unable to state the matters in detail at the time the notice is served, the initial notice may be limited to a statement of the issues involved. Thereafter, upon application, a more definite and detailed statement shall be furnished.”

In the instant case, the notice to the plaintiff informed him of the date, time, place and nature of the hearing and advised him that it was in regard to the stewards’ ruling, a copy of which was attached to the notice. The stewards’ ruling contained a description of plaintiff’s actions that were the subject of its decision, a summary of the evidence against him, and a reference to the rule outlining prohibited drugs.

We find that this notice supplied to the plaintiff was sufficient to meet his due process requirements. We also note two other factors: (1) that plaintiff never requested a more definite statement from the Commission as provided by La.R.S. 49:955, and (2) the hearing was requested by the plaintiff himself.

As the Supreme Court stated in Tafaro’s Investment Co. v. Division of Housing Improvement, 261 La. 183, 259 So.2d 57 (1972):

The giving of notice of a hearing by administrative agencies need only be reasonable and need not meet the exacting requirements for notice in judicial proceedings. The type of notice and the method of notice vary with the quality of the proceeding and the results which can obtain after hearing. Id. 259 So.2d 60-61.

For the foregoing reasons the decision of the trial court is affirmed.

AFFIRMED.


author: EDWARDS, Judge.

text:
    Jacque D. SMITH et al. v. FORMICA CORPORATION.
    No. 82-CA-1025.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.

      W. Arthur Abercrombie, Jr., Ashley Moore, Baton Rouge, for plaintiffs.
    William F. Bologna, New Orleans, for' defendant.

      Before LOTTINGER, EDWARDS and ALFORD, JJ.
   EDWARDS, Judge.

This is a products liability case. Plaintiffs were awarded $85,793.91 in damages for the destruction of their house camp and for minor injuries suffered by Jacque Smith and her two daughters, Brenda and Glenda, in a flash fire which occurred on April 1, 1978. Alleging manifest error, the defendant Formica Corporation (Formica) suspen-sively appealed the trial court’s finding of liability. We reverse.

In July, 1974, L.D. Smith, husband of Jacque Smith, scavenged the one-gallon can of Formica Brand 140 contact adhesive from a construction site in Mississippi, where as loan officer for Louisiana National Bank he was supervising the foreclosure of an apartment complex. He stored it at his camp in Livingston Parish, where it remained unopened and unused until the day of the accident.

On the morning of April 1, 1978, after reading the “Directions for Use” on the can and opening all the windows and doors in accordance with the instructions to ventilate the area, Jacque, with the help of her daughters Brenda and Glenda, used the adhesive to lay some linoleum in the bathroom. The Smiths, however, failed to extinguish the pilot light in the bathroom hot water heater. The fumes of the adhesive came into contact with the pilot light and erupted in a flash fire, causing the aggrieved damages.

In imposing liability on Formica, the trial judge made the following three findings of fact, among others:

4. Though the label of this one-gallon container of Formica Brand 140 Adhesive stated to ventilate the area where the product was being applied, the label did not state and warn to extinguish all external sources of flame, including pilot lights.
5. The court finds Formica Brand 140 Adhesive to be unreasonably dangerous and defective because any cautionary labeling, which may have been contained on this one-gallon container of Formica Brand 140 Adhesive, was inadequate and incapable of warning and protecting Jac-que D. Smith, Brenda F. Smith and Glenda R. Smith against the inherent risk of harm associated with its normal use, due to the dangerous properties inherent in its chemical composition.
6. Although Formica Corporation removed Formica Brand 140 Adhesive from the ordinary consumer market in 1976, .. . the Consumer Product Safety Commission banned all extremely flammable contact adhesives from the ordinary consumer market effective January 18, 1978 .... (footnote added)

The defendant contends that the trial court committed manifest error in finding that the product contained no warning concerning pilot lights, that the product was unreasonably dangerous due to its chemical composition, and that the Consumer Products Safety Commission banned all contact adhesives effective January 18, 1978.

Thus, two issues are presented by this appeal: Did the can of Formica 140 in question in fact contain a warning concerning pilots lights? If so, was Formica 140 nonetheless defective, that is, unreasonably dangerous to normal use, solely by virtue of its chemical composition.

ISSUE NO. 1

We note that the plaintiffs in a products liability suit, as in any civil suit except where the law provides otherwise, must prove each fact material to his case by a preponderance of the evidence, which means that the evidence as a whole must prove that the existence of each fact alleged is more probable than not. Prestenbach v. Sentry Ins. Co., 340 So.2d 1331, 1334 (La.1976). Moreover, under the standard of appellate review of facts enunciated in Arceneaux v. Domingue, 365 So.2d 1330 (La.1978), an appellate court should not disturb a finding of fact unless the record as a whole establishes that the finding was clearly wrong. A careful review of the record and of the evidence presented by both the plaintiffs and the defendant convinces us that the plaintiffs failed to carry their burden of proof that the label on the can of Formica Brand 140 Adhesive did not contain a warning to extinguish all pilot lights.

At trial, proof that the label contained no warning to extinguish pilot lights consisted solely of the testimony of the plaintiffs, L.D. and Jacque Smith, and an undated advertisement, identified and introduced into evidence as “P-6”, depicting a miniature of the front panel of a Formica Brand 140 can without the typical precautionary labeling above the Formica logo. Jacque testified that she had read the directions on the can L.D. had given her and that she fully understood what she read. She “distinctly” remembered that the back panel of the label contained instructions regarding ventilation. She did not recall whether the label contained any warning regarding flames or pilot lights. She positively testified that the back panel of the label contained no color differentiation and no offsets. The directions which she read consisted solely of black type on a white background in two vertical columns running from the top of the can to the bottom.

L.D. testified that he also read the directions on the can and remembered language concerning ventilation, which prompted him to open all the windows and doors in the camp. He, in fact, removed the bathroom door from its hinges to facilitate ventilation. Contrary to Jacque’s testimony, he admitted that the label may have contained the word “flammable” on the front or the back but testified that at the time of the accident he did not know what “flammable” meant. He did not recall seeing any language about pilot lights. On cross-examination, L.D. drew a facsimile of the back panel he remembered to be on the can. The drawing was identified and introduced into evidence as Formica ll. Formica 11 closely resembles the back panel of the can of Formica 140 depicted in Formica 4B, a scale color photograph of the label of a can of Formica 140 introduced into evidence by Formica (see below).

Formica’s proof that the label of the can of Formica Brand 140 Adhesive did in fact contain a warning to extinguish pilot lights consisted primarily of the testimonies of C. Boyd Shaffer and Glenn E. Lucas, and the deposition testimony of Kenneth Carroll, introduced into evidence without objection, and two scale color photographs (identified and introduced into evidence as Formica 4A and 4B) of the warning and labeling format that appeared on all one-gallon cans of Formica 140 manufactured between 1967 and 1974.

Dr. C. Boyd Shaffer, a chemist and present toxicology consultant, was appointed to the American Cyanamid Label Committee in 1957 and served as Committee Chairman from 1964 until his retirement in 1980. This four-person committee was responsible for formulating all warnings and labels placed on products manufactured by Formica Corporation, a subsidiary of American Cyanamid Company. As Chairman, Dr. Shaffer was personally familiar with the warning and labeling format that appeared on all one-gallon cans of Formica 140 manufactured from 1967 to 1974. He affirmatively testified that the warning language adopted by the committee in 1964 to be placed on all labels of Formica 140, based upon the standards enunciated by the Labels and Precautionary Information Committee of the Manufacturing Chemists Association, specifically warned and instructed users to turn off pilot lights. He further testified that the language adopted by the committee in 1970 complied with the Federal Hazardous Substances Act and, as required, stated that vapors may cause flash fires and instructed the users to extinguish pilot lights. He also testified that the committee in 1972 adopted language, not required by regulation, that instructed the users to extinguish all static sparks.

Dr. Shaffer identified Formica 4A and 4B as true facsimiles of the front and back panels of the labels used on all one-gallon cans of Formica 140 from 1967 to 1974. He specifically testified that never during the period in question did the back panel consist solely of dual columns of printing from top to bottom. Moreover, the warning language was always presented in a horizontal block across the top of the can and differentiated from the rest of the panel by the color red. He unequivocally testified that during 1967 to 1974 the label committee never approved of back panel warning language that instructed the user to ventilate the area, without also instructing the user to extinguish all external sources of flame, including pilot lights.

On cross-examination, Dr. Shaffer was questioned about “P-6”. While agreeing that the picture of the front panel did not exhibit the usual precautionary language above the Formica logo, he explained that such advertising literature was not required to exhibit such precautionary labeling under the provisions of 16 C.F.R. 1500.3B(12) of the Rules promulgated by the Consumer Product Safety Commission.

Dr. Shaffer’s testimony was fully corroborated by the testimony of Glenn E. Lucas, a 16-year Operations Manager of Roberts Consolidated Industries, a manufacturer who supplied Formica 140 to American Cyanamid from 1967 to 1974, and the deposition testimony of Kenneth Carroll, a 25-year Technical Services Manager for Bond Masters Products at National Starch and Chemical, a manufacturer which also supplied Formica 140 to American Cyanamid during the period in question. Mr. Lucas’ duties familiarized him with the labeling procedures used in connection with Formica 140. From his personal knowledge, Mr. Lucas identified 4A and 4B as true facsimiles of the label used on cans of Formica 140 from 1967 to 1974. He testified that he never recalled Roberts either purchasing or using a can that warned to ventilate without also warning to extinguish pilot lights. Also familiar with the quality controls used by his company to insure compliance with the labeling requirements of American Cyanamid, he stated it was “inconceivable” that an improperly labeled can of Formica 140 could leave the Roberts manufacturing plant.

Mr. Carroll was a member of National Starch and Chemical’s five-person Labeling Committee during the time in question. He testified that American Cyanamid designed the Formica labels and forwarded them to his company, which in turn forwarded them to its lithographer, Sherwin-Williams. He also, like Mr. Lucas, testified that it would be “virtually impossible” for National Starch to manufacture an improperly labeled can, and that to his knowledge, no improper labeling had ever occurred.

Two operative evidentiary rules, when applied to the facts of this case, clearly call for a reversal. First, “when there are witnesses of equal credibility in direct contradiction on a fact question, the positive or affirmative testimony will be given preponderance over that which is negative.” Tom Slay, Incorporated v. Continental Casualty Company, 321 So.2d 863, 867 (La.App. 1st Cir.1975), writ refused, 324 So.2d 433 (La.1976); Sholar v. U.S. Fire Insurance Company, 261 So.2d 327 (La.App. 1st Cir.1972); see also LeBlanc v. Cordaro, 378 So.2d 1027 (La.App. 2nd Cir.1979); Jamison v. Reese Variety Stores, Inc., 203 So.2d 859 (La.App. 2nd Cir.1967). Second, the testimony of a disinterested witness is accorded greater weight than that of an interested witness. Mitchell v. Sigrest, 345 So.2d 141 (La.App. 1st Cir.1977), citing Alexander v. St. Paul Fire & Marine Ins. Co., 312 So.2d 139 (La.App. 1st Cir.1975).

The testimonies of Mr. and Mrs. Smith are sufficiently contradictory on at least two points — the configuration of the printed directions on the back panel of the label and the presence (or absence) of the word “flammable” on either the front or back of the label — to cast a reasonable doubt on their testimony concerning the absence of a warning. However, even if we assume the plaintiffs’ credibility to be equal to that of the defendant’s witnesses, the plaintiffs’ negative testimony that no warning was present on the label must be given less weight than the positive testimony of the defendant’s disinterested witnesses.

As we stated in Alexander v. St. Paul Fire & Marine Ins. Co., 312 So.2d 139, 144 (La.App. 1st Cir.1975), writ denied, 313 So.2d 846 (La.1975):

It is a basic law that plaintiff must prove his case by a preponderance of evidence. Preponderance of evidence means evidence which is of greater weight or which is more convincing than evidence offered in opposition thereto, and which, because it best accords with reason and probability, or which because of its more convincing nature and quality, best tips the scales of justice in favor of the party upon whom the burden rests.

For the foregoing reasons, we reverse the trial court and find that the can of Formica 140 Adhesive used by the Smiths on the day of the accident did in fact contain a warning to extinguish all flames and pilot lights.

ISSUE NO. 2

In their brief, plaintiffs place considerable reliance on two out-of-state decisions, of which only one need be discussed, and on the trial court’s finding that Formica 140 was a banned hazardous substance on the date of the accident in support of their proposition that Formica 140 was unreasonably dangerous to normal use solely by virtue of its chemical, composition.

First, the trial court’s finding that Formica 140 was banned by the Consumer Product Safety Commission on the date of the accident was clearly wrong. Title 16 C.F.R. 1302.4 specifically provides:

Any extremely flammable contact adhesive and similar liquid or semi-liquid consumer product as defined in section 1302.3(b), which has been manufactured or initially introduced into commerce after January 17, 1978, is a banned hazardous product. In addition, any other extremely flammable contact adhesive and similar liquid or semi-liqüid consumer product, as defined in section 1302.3(b), no matter when manufactured or initially introduced into commerce, is a banned hazardous product after June 13, 1978.

The can of Formica 140 in question was manufactured some time prior to the summer of 1974. Therefore, it did not become a “banned hazardous product” until June 13, 1978, after the date of the accident, April 1, 1978.

Moreover, the plaintiff has the burden of proving that the product is unreasonably dangerous both at the time of the accident and at the time the product left the hands of the manufacturer. The defendant’s conduct must be judged according to the conditions and circumstances existing at the time of the occurrence of the accident and must be measured on the basis of standards applicable at that time. Landry v. Adam, 282 So.2d 590 (La.App. 4th Cir.1973). We think that evidence of post-accident federal regulatory changes is irrelevant to a determination of whether a product is unreasonably dangerous at the time the plaintiff suffers injury.

Second, in Ruggeri v. Minnesota Mining & Manufacturing Company, 63 Ill.App.3d 525, 20 Ill.Dec. 467, 380 N.E.2d 445 (1978), the plaintiff’s decedent was fatally injured when the fumes of a contact adhesive known as “Red 33” were ignited by a pilot light in a furnace close to where the decedent was cleaning the adhesive from the pressure tank of a compressed air spray gun. The adhesive container contained a warning to extinguish all pilot lights. Finding the warning to be adequate, the Illinois appellate court affirmed the jury’s finding that the adhesive was nonetheless too flammable and volatile for its foreseeable use and therefore unreasonably dangerous.

We do not feel compelled in this case to follow the lead of the appellate court of Illinois and adopt a rule of law that would impose absolute liability on a consumer products manufacturer. The Louisiana Supreme Court has reserved absolute liability for ultrahazardous activities (such as pile driving, storage of toxic gas, etc.). See Kent v. Gulf States Utilities Co., 418 So.2d 493 (La.1982). A manufacturer is liable to any purchaser or third person who proves that the product causing injury was defective, that is, unreasonably dangerous to normal use. Weber v. Fidelity and Casualty Insurance Co. of N.Y., 259 La. 599, 250 So.2d 754 (1971). The words “unreasonably dangerous” were included in the definition of “defect” in products liability cases to prevent manufacturers from becoming insurers of their products. DeBattista v. Argonaut-Southwest Insurance Company, 403 So.2d 26, 30 (La.1981).

A products liability action in Louisiana lies in negligence. It is only because of the manufacturer’s presumed knowledge of the dangerous propensities of his product that the manufacturer is said to be strictly liable to the plaintiff. Kent v. Gulf States Utilities Co., 418 So.2d at 498, n. 6; Entrevia v. Hood, 427 So.2d 1146, 1149 (La.1983) (citing Hunt v. City Stores Inc., 387 So.2d 585 (La.1980) as a traditional negligence case).

If a product has dangerous propensities, which a manufacturer is presumed to know, and which render the product unreasonably dangerous to normal use, the manufacturer is negligent, and therefore liable, in failing to give a warning adequate to apprise the user of the specific risk of harm encountered by that user during the use of the product. See Hunt v. City Stores, Inc., 387 So.2d 585 (La.1980); Chappuis v. Sears Roebuck, Inc., 358 So.2d 926 (La.1978); Andries v. General Motors Corp., Delco Batteries, 417 So.2d 479 (La.App. 1st Cir.1982); Hudgens v. Interstate Battery Systems, etc., 393 So.2d 940 (La.App. 3rd Cir.1981). It is this failure to warn, or the breach of the duty to warn, that renders the product unreasonably dangerous to normal use and results in liability.

The specific risk of harm encountered by the Smiths was the risk of fire resulting from an exposed pilot light in the Smiths’ bathroom hot water heater. Whether a remote source of flame, such as a stray spark or a cigarette, may also have created a risk of harm is based upon a hypothetical situation' different from the factual pattern before us. Since the risk of harm encountered was the very risk of harm specifically warned against by Formica, we find that the plaintiffs failed to prove that the product was unreasonably dangerous to normal use.

The decision of the trial court is reversed.

Costs to be borne by plaintiffs-appellees.

REVERSED.

APPENDIX I

      . American Home Assurance Company, Formica’s insurer and solidary co-obligor, has not appealed the final judgment which is now definitive as to it.

      . The trial court further found that Formica 140 is an “extremely flammable” contact adhesive with a flash point of less than 0 degrees Farenheit, which means that at or above 0 degrees F. the adhesive will evaporate and form a combustible vapor ignitable if exposed to open flames or sparks. Moreover, due to their high density (2.8 times that of air), the vapors tend to sink and accumulate along the floor where exposed sources of flame, such as pilot lights, tend to be. Thus, any remote source of flame such as a stray spark or cigarette could ignite the vapors and cause a flash fire.

      . Formica argues alternatively for an affirmance of the trial court’s damage awards. The plaintiffs answered the defendant’s appeal seeking an affirmance of liability but an increase in the damage awards. Since we reverse the trial court’s finding of liability, we will not discuss the issues of quantum.

      . For purposes of our review, we disregard the testimony of plaintiffs’ expert, Dr. Jendrzejew-ski, who performed a comparative analysis of the labels of the pre-1974 one-gallon can used by the Smiths on the date of the accident and a five-gallon can of Formica 140, manufactured in 1979, each label depicted respectively in a black-and-white photograph identified as “P-9” and a glossy color photograph identified as “P-13”. The trial court properly denied the introduction into evidence of “P-9” and “P-13” since any comparison between the label on the pre-accident can and the label on the post-accident can, which the defendant concedes used a different format, is clearly irrelevant in proving the existence or nonexistence of a warning on the can in question. Since Dr. Jendrzejewski’s testimony is based upon properly excluded evidence, it is also irrelevant to the issue before us.

      . See Appendix I. The “X” in the middle of the drawing shows where L.D. Smith read the “Directions For Use.”

      . 15 U.S.C. 1261, et seq.

      . The warning label identified and depicted in 4B reads as follows:
      DANGER: EXTREMELY FLAMMABLE MIXTURE. VAPORS MAY CAUSE FLASH FIRE.
      Vapors may ignite explosively. Vapors harmful. Prevent buildup of vapors — open all windows and doors — use only with cross ventilation. Keep away from heat, sparks, and open flame. Do not smoke. Extinguish all flames and pilot lights, and turn off stoves, heaters, electric motors, and other sources of ignition (including static sparks) during use and until all vapors are gone. Close container after use. Do not take internally. Avoid prolonged or repeated inhalation or skin contact.
      USE ONLY IN WELL VENTILATED AREA KEEP OUT OF REACH OF CHILDREN
      Hazardous Ingredients: Methyl Ethyl Ke-tone, Toluene, Petroleum Distillate.

      . Such language, depicted in 4A, reads:
      EXTREMELY FLAMMABLE. VAPORS MAY CAUSE FLASH FIRE. VAPORS HARMFUL. READ CAREFULLY OTHER CAUTIONS ON BACK PANEL.

      . “Label” means a display of written, printed, or graphic matter upon the immediate container of any substance or, in the cases of an article which is unpackaged or is not packaged in an immediate container intended or suitable for delivery to the ultimate consumer, a display of such matter directly upon the article involved or upon a tag or other suitable material affixed thereto. A requirement made by or under authority of the act that any word, statement, or other information appear on the label shall not be considered to be complied with unless such word, statement, or other information also appears (i) on the outside container or wrapper, if any there be, unless it is easily legible through the outside container or wrapper and (ii) on all accompanying literature where there are directions for use, written or otherwise. 16 C.F.R. 1500.3B(12)

        Plaintiffs’ counsel attempted to impeach Dr. Shaffer’s credibility by the absence in “P-6” of any reference to such precautionary language, including the words “extremely flammable,” as required by 16 C.F.R. 1500.133(b). Whatever relevance an undated advertisement may have, our review of “P-6” reveals that it does in fact contain such language in the last paragraph entitled PRECAUTION on the backside of the advertisement. Specifically, the paragraph reads in part: “FORMICA brand contact adhesive # 140 is flammable. Keep away from heat, sparks and open flame.”

      . Mrs. Smith testified that the directions ran from top to bottom; Mr. Smith, that they ran up only halfway. We also find incredulous Mr. Smith’s statement that he was ignorant of the meaning of the word “flammable.”

      . For these particular activities, Louisiana courts have imposed absolute liability ... which virtually makes the enterpriser an insurer. The enterpriser, whether or not negligent in any respect, caused the damage, and the injured party recovers simply by proving damage and causation. Kent v. Gulf States Utilities Co., 418 So.2d at 498.


author: LANIER, Judge. SHORTESS, Judge, PER CURIAM

text:
    Earline SMITH and Sara Nixon v. Dometile LEGER & State Farm Mutual Automobile Insurance Company.
    No. 82 CA 1130.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.
    Rehearing Denied Nov. 22, 1983.

      Clyde A. Ramirez, New Orleans, for plaintiffs and appellants.
    Jerry H. Schwab, Houma, for defendants and appellees.
    Edward D. Markle, New Orleans, for defendant and appellee, American Liberty Ins. Co.
    Before SHORTESS, LANIER and CRAIN, JJ.
   LANIER, Judge.

This is a suit for damages in tort arising from an automobile accident brought by the driver and a guest passenger of one of the vehicles. The driver and insurer of the other vehicle filed a peremptory exception of res judicata pleading a written compromise agreement with the plaintiff-driver. The trial court sustained this exception and dismissed the plaintiff-driver’s portion of the suit. This devolutive appeal followed.

FACTS

The petition alleges that on January 21, 1981, Earline Smith was operating a 1980 Buick automobile owned by her in a northerly direction on Church Street in the City of Houma, Parish of Terrebonne, Louisiana. Sara Nixon was a guest passenger in this vehicle. At the same time and place, Dom-etile Leger was operating her 1973 Chevrolet automobile in a westerly direction on School Street, and at the intersection of Church and School Streets there was a collision between the Smith and Leger vehicles. The Leger vehicle was insured by State Farm Mutual Automobile Insurance Company (State Farm).

On January 23, 1981, Ear line Smith went to the State Farm office in Houma, Louisiana, to discuss the accident. It was determined at that time that the repair cost to her vehicle was $875.91 and the rental expense for a substitute vehicle was $260.00 for a total of $1,135.91. Smith signed a written compromise agreement and was issued a check for $1,145.91 which she cashed. The compromise agreement provides, in pertinent part, as follows:

FOR AND IN CONSIDERATION of the payment of the sum of One Thousand one hundred forty five & 91/100 Dollars, the receipt and sufficiency of which is hereby acknowledged, and of the promise of payment to the undersigned of benefits in accord-with the SCHEDULE OF BENEFITS set forth below, by the Company accepting this Agreement,
the undersigned hereby releases and forever discharges Dometile Leper and State Farm Mutual Auto. Co., the Insurance Company accepting this Agreement, and any and all other persons, firms or corporations liable or who might be claimed to be liable, from any and all claims, demands, damages, actions, causes of action or suits of any kind or nature whatsoever, both to person and property, and particularly on account of all injuries, known and unknown, sustained by
_Earline Smith_
Named Beneficiary
which have resulted or may in the future develop as a result of an accident which occurred on or about the 21 day of January. 1981 at or near Church & School St. Houma. La. This release expressly reserves all rights of the parties released to pursue their legal remedies, if any, against the undersigned, their heirs, executors, agents and assigns.
It is also agreed and understood that this settlement is the compromise of a doubtful and disputed claim, that the payment is not to be construed as an admission of liability on the part of the persons, firms and corporations hereby released, by whom liability is expressly denied. This Agreement and Release contains the entire agreement between the parties hereto, and the terms of this instrument are contractual and not a mere recital. It is further agreed that all parties to this instrument have carefully read the contents thereof and the signatures below are the voluntary and free act of each.

The Schedule of Benefits referred to in the agreement provides as follows:

To pay all reasonable and necessary expenses not to exceed $1,000 incurred for medical, dental or surgical treatment, ambulance, hospital, professional nursing services and prosthetic devices, furnished to the named beneficiary within 180 days following the date of this Agreement, as a result of the accident described herein, provided that such expenses are not paid or payable by any collateral source.

On August 17, 1981, Smith filed this suit seeking damages of $30,000.00 for pain and suffering, mental anguish, emotional distress, medical expenses and property damages.

COMPROMISE AGREEMENT

A compromise is an agreement to adjust the differences of two or more persons by mutual consent for preventing or ending a lawsuit. If entered into prior to the filing of suit, it must be in writing. La.C.C. art. 3071. The defense that a suit is barred by a valid written compromise may be raised by an exception of res judicata and tried separately in advance of trial on the merits. The plaintiff against whose action the exception is directed may introduce evidence of a defense to the compromise agreement without the necessity of filing replicatory pleadings or a prior independent action to annul the compromise. Bielkiewicz v. Rudisill, 201 So.2d 136 (La.App. 3rd Cir.1967).

At the trial of the exception, the excep-tors called Earline Smith under cross-examination as an adverse witness. Smith acknowledged her signature on the compromise agreement and admitted signing the document. On the basis of this testimony, the compromise agreement was filed into evidence without objection.

FAILURE TO READ COMPROMISE AGREEMENT

Smith testified that she did not know that she was signing a release for personal injuries and thought she was just signing for property damage because she did not read the document. Smith testified that she could not read very well, that she glanced at some things in the document and that some things she could not understand. She further testified that she had a seventh grade education, was given an opportunity to read the document and was given a copy of the document after she signed it.

Courts are bound to give legal effect to all written contracts according to the true intent of the parties and this intent is to be determined by the words of the contract when these are clear, explicit and lead to no absurd consequences. La.C.C. art. 1945; Leenerts Farms, Inc. v. Rogers, 421 So.2d 216 (La.1982). A person who signs a written instrument is presumed to know its contents and cannot avoid its obligations by contending that he did not read it, or that it was not explained or that he did not understand it. Carter’s Insurance Agency, Inc. v. Franklin, 428 So.2d 808 (La.App. 1st Cir.1983). Failure to read a written compromise agreement is not a legitimate defense. Thigpen v. Guarisco, 197 So.2d 904 (La.App. 1st Cir.1967).

WHAT DISPUTED MATTERS WERE COMPROMISED?

Compromise agreements cannot be attacked for an error in law or for lesion. La.C.C. art. 3078. However, compromise agreements can be contested for errors in calculation, error in the person, fraud, violence or an error on the matter in dispute. La.C.C. arts. 3078-3079. A compromise agreement extends only to those matters which the parties expressly intend to settle. La.C.C. art. 3073; Matthew v. Melton Truck Lines, Inc., 310 So.2d 691 (La.App. 1st Cir.1975). Ordinarily, the meaning and intent of the parties to a written contract (such as a written compromise agreement) must be sought within the four corners of the instrument and cannot be explained or contradicted by parol evidence. La.C.C. art. 2276; Tauzin v. Claitor, 417 So.2d 1304 (La.App. 1st Cir.1982), writ denied, 422 So.2d 423 (La.1982). An exception to this rule exists when there is a dispute between the parties as to exactly what matters were intended to be settled by the compromise agreement. La.C.C. art. 3079; Moak v. American Automobile Insurance Company, 242 La. 160, 134 So.2d 911 (1961); Munna v. Mangano, 404 So.2d 1008 (La.App. 4th Cir.1981).

Smith testified that she only intended to compromise her claims for property damage and that she did not intend to release her claim for personal injuries. On the day of the accident, she went to the emergency room of the hospital, had X-rays taken and received a $50.00 bill. Since the accident, she has been to the hospital twice for a discogram and a myelogram, has had physical therapy and has not worked since the accident.

During the course of examination by her counsel, Smith attempted to introduce evidence of what statements were made to her by the State Farm adjuster. Counsel for the exceptors objected to this testimony as hearsay and the trial court sustained this objection. The trial judge offered to keep the evidence open to allow counsel for Smith to present additional evidence on this point, but counsel for Smith declined the offer and submitted the case without further evidence. Smith has not assigned as error in this court that ruling of the trial court. Since that issue was not raised by a specification of error, this court will not review it in this appeal. Oh v. Allstate Insurance Company, 428 So.2d 1078 (La.App. 1st Cir.1983); Harrison v. South Central Bell Telephone Company, 390 So.2d 219 (La.App. 3rd Cir.1980), writ denied, 396 So.2d 900 (La.1981); Rule 1-3, Uniform Rules, Courts of Appeal.

The trial judge, after hearing the testimony of Smith, nevertheless granted judgment in favor of the exceptors. The finder of fact in the trial court must assess the credibility of witnesses and may refuse, or accept, all or part of the testimony of any witness. Holmes v. Southeastern Fidelity Insurance Company, 422 So.2d 1200 (La.App. 1st Cir.1982), writ denied, 429 So.2d 133 (La.1983). Obviously, the trial court rejected the testimony of Smith on the issue of whether the compromise agreement was limited or general. After reviewing the record, we cannot say that this factual determination is clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). See, for example, Henderson v. Stansbury, 372 So.2d 1253 (La.App. 3rd Cir.1979); Howard v. Pan American Fire & Casualty Company, 240 So.2d 755 (La.App. 2nd Cir.1970), writ refused, 257 La. 456, 242 So.2d 577 (1971).

PORTION OF MEDICAL EXPENSES NOT RELEASED

The trial court dismissed the entirety of Smith’s suit. Part of Smith’s claim was for past, present and future medical expenses. The schedule of benefits contained in the compromise agreement obligates State Farm to pay all reasonable and necessary medical bills and expenses not to exceed $1,000 furnished to Smith within 180 days following the date of the compromise agreement (January 23, 1981) which were attributable to the accident and not paid or payable by any collateral source. The record does not reflect what, if any, of the claimed medical expenses fell into that time period. The record of this case contains medical records from the Terrebonne General Hospital indicating that Smith was hospitalized in March and May of 1981, within the 180 day time period. Smith is entitled to recover in accordance with the terms of that portion of the agreement. The decision of the trial court, dismissing this portion of the claim, is in error and is reversed. This portion of the claim is remanded to the trial court for further proceedings to determine Smith’s entitlement to recover on that portion of the claim.

PAYMENT OF COSTS BY INDIGENT

Although Smith has proceeded in this appeal in forma pauperis, she is responsible for payment of the costs of this appeal because she failed to prevail. La.C.C.P. art. 5188; Williams v. Dupre, 347 So.2d 1214 (La.App. 1st Cir.1977).

CONCLUSION

For the foregoing reasons, that portion of the trial court judgment dismissing the claim of Smith for medical bills and expenses not exceeding $1,000 arising during the 180 day period after the date of execution of the compromise agreement is reversed and remanded to the trial court. In all other respects, the judgment of the trial court is affirmed. The appellant is cast for the cost of this appeal.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED IN PART.

SHORTESS, Judge,

dissenting.

The facts show that two days after the accident, plaintiff went to State Farm’s office and received $1,145.91. The repair costs to her vehicle were $875.91. Expenses for the rental of a substitute vehicle were $260.00. These items totaled $1,135.91, or ten dollars less than she received. Plaintiff testified that all she intended to settle was her property claim. These figures show she did not settle anything else because she got nothing else.

The trial court erred in failing to permit evidence as to what the State Farm adjustor told plaintiff. As a representative of a party defendant, he was subject to cross-examination, and anything he said to plaintiff was admissible as an exception to the hearsay rule, i.e., an admission. I do not believe the trial court’s offer to keep the matter open for additional evidence cured this error. I realize that plaintiff did not assign as error this ruling of the trial court, but I believe that our court rules give enough discretion for us to address the issue under the facts presented here. Rule 1-3, Uniform Rules, Court of Appeal.

I respectfully dissent.

ON APPLICATION FOR REHEARING

PER CURIAM

The decision of this court was rendered on October 11,1983, and mailed that same date. This application for rehearing was filed on November 9, 1983. Pursuant to La.C.C.P. art. 2166, as amended by Act 451 of 1983 and effective August 30,1983, an application for rehearing must be filed within fourteen days of the mailing of the notice of judgment and the opinion of this court. This application is not timely.

      . Contrary factual conclusions were reached by trial courts in Hemphill v. Strain, 341 So.2d 1186 (La.App. 1st Cir.1976), application denied, 343 So.2d 1072 (La.1977); Wells v. Aguillard, 244 So.2d 689 (La.App. 4th Cir.1971).