text:
    Patricia Ann WILKERSON v. STATE of Louisiana, OFFICE OF EMPLOYMENT SECURITY, et al.
    No. 82 CA 1069.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.

      Sylvia R. Cooks, Lafayette, for plaintiff-appellant Patricia Ann Wilkerson.
    James McGraw, Baton Rouge, for defendant-appellee Office of Employment Sec., Dept, of Labor, State of La.
    James Caldwell, Jonesboro, Ann Metrailer, Baton Rouge, for defendant-appellee State of La., Dept, of Health & Human Resources, Office of Health Services.
    Before PONDER, WATKINS and CARTER, JJ.
   CARTER, Judge:

This is an appeal from a denial of unemployment benefits.

Plaintiff, Patricia Ann Wilkerson, was employed as a Practical Nurse II by the State of Louisiana, Department of Health and Human Resources (DHHR) in Baton Rouge. In a letter dated February 11,1981, Dr. Harold A. Heitkamp, an assistant secretary with the department, informed Mrs. Wilkerson that she was being terminated effective February 18, 1981, for “frequent and unplanned absenteeism and tardiness.”

Thereafter, plaintiff applied to the Office of Employment Security for unemployment benefits. That office determined that she was eligible to receive benefits and she was so notified. DHHR, plaintiff’s former employer, requested an appeal hearing before a referee. All parties received a “Notice to Appear for Hearing” which stated that the issue before the referee was the correctness of the following: “The claimant was discharged due to excessive absence due to illness. She always notified the employer. Discharge was not for misconduct connected with the work.”

At a hearing held on April 23, 1981, DHHR attempted to introduce evidence regarding plaintiff’s tardiness, plaintiff objected noting that she had no advance notice that tardiness would be an issue. As a result of this objection, the referee granted a continuance until May 4, 1981, and a second “Notice to Appear for Hearing” was mailed. The second notice stated the issue before the referee was the correctness of the following: “The claimant was discharged from employment because of excessive absenteeism and chronic tardiness. The discharge was for misconduct connected with the work.” At the hearing on May 4,1981, DHHR presented its case; however, plaintiff, who had not received timely notification, was not present. A decision disqualifying plaintiff from receiving benefits was rendered by the referee on May 5, 1981; plaintiff appealed this decision to the 19th Judicial District Court. On June 9, 1981, the district court ordered the “matter be remanded to the Board of Review, Office of Employment Security, ordering an additional hearing be held before an appeals referee with proper notice to all parties of all issues.” However, without holding a hearing as ordered by the district court, the Board rendered a decision on July 17, 1981 affirming the denial of benefits.

Plaintiff again appealed to the 19th Judicial District Court requesting a hearing date with proper notice. The court again ordered a hearing to be held with proper notice given to all parties. A hearing was held on December 7, 1981, and the Board rendered an opinion on February 16, 1982, finding that plaintiff was disqualified for unemployment benefits. Plaintiff then appealed the decision to the 19th Judicial District Court. The district court affirmed the decision of the Board of Review and dismissed plaintiffs suit. Plaintiff then filed this appeal.

Plaintiff assigns the following errors:

(1) the referee erred in allowing the testimony of Ms. Noble and in allowing the introduction of the termination letter by Dr. Heitkamp as both were inadmissible hearsay;

(2) the referee erred in allowing DHHR to assert the issue of tardiness;

(3) the referee erred in allowing the transcript of the May 4th hearing to be introduced into the record of the December 7th hearing; and,

(4) the decision denying plaintiff unemployment benefits is wrong as a matter of law as there is not “sufficient evidence” to support the decision.

ASSIGNMENT OF ERROR NO. 1

Plaintiff argues that the referee erred in allowing the testimony of Ms. Noble (plaintiff’s supervisor) at the April 23rd hearing and in allowing the introduction of the termination letter signed by Dr. Heitkamp contending both were inadmissible hearsay.

The usual rules of evidence need not apply to an administrative hearing and therefore hearsay is admissible. LSA-R.S. 23:1631; Hall v. Doyal, 191 So.2d 349 (La.App. 3rd Cir.1966). Nevertheless, the factual findings of an administrative agency must be based on legal and competent evidence. Hearsay is not considered competent evidence and cannot be used in determining whether the findings of a Board of Review are supported by “sufficient evidence” as required by LSA-R.S. 23:1634; Southeastern Louisiana University v. Shelton, 431 So.2d 432 (La.App. 1st Cir.1983).

At the December 7, 1981 hearing, Ms. Sylvia Carrio, plaintiff’s immediate supervisor, testified as to written and verbal warnings she had personally given to the plaintiff. It is clear that the findings of the Board are not based on hearsay, but on the competent testimony of Ms. Carrio. Therefore, plaintiff’s objection concerning both the testimony and the letter is without merit.

ASSIGNMENT OF ERROR NO. 2

Plaintiff argues that the referee erred in allowing DHHR to assert the issue of tardiness because the original Notice to Appear for Hearing referred only to discharge due to absenteeism.

The principles of fundamental due process require that a claimant for unemployment benefits be given prior notice of definite, certain, and specific misconduct for which he was disqualified. Beverly v. Sumrall, 408 So.2d 14 (La.App. 4th Cir. 1981); Flemmons v. Administrator, Office of Sec., 401 So.2d 561 (La.App. 3rd Cir. 1981).

At the initial hearing on April 23, 1981, plaintiff objected to the lack of notice regarding the tardiness issue, and as a result of plaintiff’s objection the referee granted a continuance. A second Notice to Appear for Hearing, which listed plaintiff’s absenteeism and tardiness as grounds for misconduct, was issued and a hearing was held on December 7, 1981. At the time of the December hearing, plaintiff was aware of all charges relating to her termination and was allowed to present evidence. The facts as stated above indicate that plaintiff was given adequate notice of all charges prior to the hearing on December 7, 1981, and was, therefore, afforded due process.

ASSIGNMENT OF ERROR NO. 3

Plaintiff argues that the referee erred in allowing the transcript of the May 4th hearing to be introduced as an exhibit and entered into the record of the December 7th hearing. Plaintiff contends that she did not receive timely and proper notification of the May 4th hearing, was not present at the hearing, and therefore the use of the transcript of the hearing violated her right to procedural due process.

We do not see how the mere introduction of the May 4th transcript into the record violated plaintiff’s rights. The only witness present at the May 4th hearing was Ms. Noble. It is clear that the testimony she gave at the earlier hearing was not relied upon by DHHR as she also appeared as a witness at the December 7th hearing. At that time, she testified and was then cross-examined by plaintiff’s counsel. We find no merit in plaintiff’s assignment of error on this point.

ASSIGNMENT OF ERROR NO. 4

Plaintiff argues that DHHR failed to prove that she was discharged because of misconduct connected with her unemployment. In support of this contention plaintiff points to the failure of Dr. Heitkamp to testify at the hearing.

We note at the outset that the scope of judicial review for cases arising under Louisiana Employment Security Law is limited by LSA-R.S. 23:1634 which states in part:

“In any proceeding under this Section the findings of the board of review as to the facts, if supported by sufficient evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law.”

According to LSA-R.S. 23:1601(2), an individual shall be disqualified for benefits when it is determined that “he has been discharged ... for misconduct connected with his employment.” Misconduct has been defined as “an act of willful or wanton disregard of the employer’s interest; a deliberate violation of the employer’s rules; a disregard of standards of behavior which the employer has a right to expect of his employee.” Black v. Sumrall, 413 So.2d 252 (La.App. 4th Cir.1982).

The Board of Review stated in its opinion that claimant’s discharge was due to excessive absenteeism and tardiness and that this constituted misconduct connected with employment within the meaning of the Act. The trial court, upon reviewing the Board’s decision, held that although absenteeism due to illness was not “misconduct” so as to disqualify plaintiff from receiving benefits, plaintiff’s repeated acts of tardiness were sufficient grounds for disqualification.

Repeated acts of tardiness are sufficient misconduct to deny an individual unemployment benefits. See Rawls v. Brown, 165 So.2d 18 (La.App. 2nd Cir.1964), and Persley v. Brown, 160 So.2d 437 (La.App. 2nd Cir.1964), in which decisions denying benefits due to tardiness were affirmed. Compare Vernon v. Seitz, 399 So.2d 723 (La.App. 1st Cir.1981) in which the court affirmed the granting of benefits where the employer merely verbally corrected the employee on two or three occasions.

The evidence introduced into the record includes the following:

(1) Performance Evaluation Sheet, dated January 13,1975, which states: “A greater effort to report to work on time has been suggested to her.”
(2) Performance Evaluation Sheet, dated January 24, 1977, which states: “She has shown improvement in reporting to work on time.”
(3) Service Rating Report, dated May 4, 1978, which states: “There is still need for improvement in reporting to work on time.”
(4) Service Rating Report, dated April 1, 1980, which states: “Improvement is needed in attendance. Less absenteeism and reporting to work on time. Also improving attitude within the clinic.”
(5) A memo written by Ms. Carrio, dated June 5, 1980, which states: “Today Miss Patricia Wilkerson reported to work at 8:23 a.m. I told her I needed to talk with her about her continuously reporting to work late. She became very angry and hollowed (sic) to me that I discriminated against her. Her attitude was awful and [she] kept hollowing (sic) discrimination. She then asked to sign a leave slip saying she was going home because she was not feeling well. This she did and left at 8:30 a.m.”

Regarding the issue of plaintiff’s tardiness, the Board stated in its opinion:

“[T]he claimant was tardy on many occasions and was counselled accordingly; however, the claimant became non-receptive to such counseling and her attitude developed into resentment toward her supervisor. The claimant would get extremely angry and upset, and instead of attempting to work her problem out, the claimant would leave the job and go home.”

We note at this point that plaintiff’s assertion that the failure of Dr. Heitkamp to testify is somehow fatal to DHHR’s case is without merit. Concerning this issue the trial judge stated in his written reasons for judgment that “it is evident that his [Dr. Heitkamp’s] testimony would have been based totally upon the communications received from the plaintiff’s supervisors, Ms. Noble and Ms. Carrio, who each testified from personal knowledge regarding claimant’s tatdiness (sic).” We agree.

The plaintiff admitted during the hearing that she was often late for work and that she was counselled several times regarding tardiness. In addition, she testified that she was aware of the “Service Rating Reports” regarding her frequent tardiness.

Plaintiff was repeatedly tardy for work and was repeatedly warned about her tardiness. The action of the plaintiff in continuing to report late for work, despite the warnings given to her by her supervisor, constitutes a willful and intentional disregard of her employer’s orders and amounts to misconduct.

After a review of the record we find that based on the issue of tardiness, there was sufficient evidence to find plaintiff guilty of misconduct, and thereby deny her benefits. Therefore, the decision of the District Court, the Board of Review and the hearing referee denying plaintiff unemployment benefits, is affirmed. Costs on appeal are to be paid by plaintiff-appellant.

AFFIRMED.


source: Caselaw Access Project

author: PONDER, Judge. WATKINS, Judge,

license: Public Domain

text:
    Arthur D. POOLE v. OCEAN DRILLING & EXPLORATION CO., et al.
    No. 82 CA 1070.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.
    Writ Denied Dec. 9, 1983.

      Allen J. Borne, Borne & Rogers, Franklin, for plaintiff.
    Timothy J. McNamara, Onebane, Dono-hoe, Bernard, Torian, Diaz, McNamara & Abell, Lafayette, for Highlands Ins. Co. and third party plaintiff, Ocean Drilling and Exploration Co.
    James E. Blazek and Mark J. Spansel, Adams & Reese, New Orleans, for Lewis Crane Services, appellant.
    Herman L. Bastían, Jr., New Orleans, for American Home Assur. Co., intervenor.
    Before PONDER, WATKINS and CARTER, JJ.
   PONDER, Judge.

Third party defendant, Lewis Crane Service, Inc., appealed the summary judgment holding it liable for the complete indemnity and defense of third party plaintiffs, Ocean Drilling and Exploration Company and Highland Insurance Company.

The issues are the application of a service contract to plaintiff’s activities and injuries, and the limitation of indemnification by contractual insurance coverage.

We affirm.

Lewis Crane Service, Inc. (Lewis) contracted with Ocean Drilling and Exploration Company (ODECO) to provide cranes and operators for the loading and unloading of oil field equipment. Plaintiff, a Lewis employee, was injured while hand-moving pipe in order to reach and repair a broken seal on an ODECO pipe rack.

Plaintiff sued ODECO and its insurer, The Highlands Insurance Company. ODE-CO brought a third party demand against Lewis for contractual indemnification and defense and then filed a motion for summary judgment. Lewis filed an opposition and counter motion arguing that the work being done by plaintiff was outside its contractual duties, and that even if indemnity was owed, it should be limited to the insurance limits required by the contract.

The trial judge granted ODECO’s motion, finding that the indemnity agreement covered the work being done at the time of the accident and that the indemnity was not limited to the amount of the insurance.

Lewis argues that the accident was not covered by the contract since no work order was ever issued and the accident did not fit within the phraseology of the indemnity paragraph.

When there is anything doubtful in agreements, including indemnity agreements, we must endeavor to ascertain what was the common intent of the parties, rather than adhere to the literal sense of the terms. Polozola v. Garlock, Inc., 343 So.2d 1000 (La.1977). La.C.C. art. 1950. All clauses of agreements are interpreted the one by the other, giving to each the sense that results from the entire act. La.C.C. art. 1955. The court will construe ambiguous phrases against the preparer only if the common intent of the parties cannot be determined. Henry v. Ballard & Cordell Corporation, 401 So.2d 600 (La.App. 3rd Cir. 1981), affirmed 418 So.2d 1334 (La.1982). La.C.C. art. 1957.

Paragraph 1(a) of the contract provided:

This agreement shall control and govern the performance of all work by Subcontractor for Drilling Contractor under work orders, oral or written, given on or after the date hereof by Drilling Contractor to Subcontractor.

Paragraph 9 provided:

Subcontractor agrees to indemnify and hold harmless Drilling Contractor from and against any and all liens and claims for labor or material, and against any and all claims, demands, or suits for damages to persons and/or property (including, but not limited to claims, demands, or suits for bodily injury, illness, disease, death, loss of services, maintenance, cure, property or wages), which may be brought against Drilling Contractor (including, but not limited to those brought by Subcontractor’s employees and agents and the agents and employees of its subcontractors) incident to, arising out of, in connection with, or resulting from the activities of Subcontractor, its employees and agents, or its subcontractors and their employees and agents, or in connection with the work to be performed, services to be rendered, or material to be furnished, under this contract, or under contracts referred to in 1(b) above, whether occasioned, brought about or caused in whole or in part by the negligence of Drilling Contractor, its agents, directors, officers, employees, servants or subcontractors, or otherwise, or by the unseaworthiness of any vessel owned, operated or controlled by Drilling Contractor, regardless of whether such negligence or unseaworthiness be active or passive, primary or secondary.

The seal plaintiff intended to repair had been damaged by crane operations. Foremen from ODECO and Lewis discussed the fact that the seal would have to be repaired and Lewis proceeded to perform the work without a work order and gratuitously since it did the damage.

The argument that since there was no work order the contract does not apply, construes the contract too narrowly. After reading the contract as a whole, we find that plaintiffs accident was covered by the broad language of the indemnity paragraph.

The indemnity phrase “in connection with”, has been defined as “being related to or associated with, but not the primary or only purpose of” in an insurance policy. Daire v. Southern Farm Bureau Casualty Insurance Company, 143 So.2d 389 (La.App. 3rd Cir.1962). The correction of Lewis’s error, which occurred during the performance of its contractual duty of crane operations, is “related or associated to” that contractual duty, although not its “primary purpose.” We find no error'.

Plaintiff next argues that Lewis’s duty of indemnity is limited to the insurance limits specified by the contract.

Paragraph 8(c) of the contract provided:

(8) At any and all times during the term of this Agreement, Subcontractor agrees to carry insurance of the types and in the minimum amounts as follows:
(c) Comprehensive general liability insurance with minimum limits of $100,-000.00 for injury or death of any one person and $300,000.00 for any one accident and with minimum limits of $100,-000.00 for property damage. Such insur-anee shall additionally cover the contractual liabilities and indemnities herein assumed by Subcontractor with minimum limits of $300,000.00.

Appellant cites Hicks v. Ocean Drilling and Exploration Company, 512 F.2d 817 (5th Cir.1975), cert. denied, 423 U.S. 1050, 96 S.Ct. 777, 46 L.Ed.2d 639 (1976), and Dickerson v. Continental Oil Company, 449 F.2d 1209 (5th Cir.1971), cert. denied, 405 U.S. 934, 92 S.Ct. 942, 30 L.Ed.2d 809 (1972). Hicks, supra, involved the same contractual provisions as the contract in question. In dicta, the Fifth Circuit stated that the liability of the indemnitor was limited to the contractually required coverage, citing Dickerson, supra. While these cases can be persuasive, we do not agree with their interpretation.

In reading the contract as a whole, we find no indication of an intention that Lewis’s liability as indemnitor be limited by insurance amounts. We interpret paragraph 8(c) as requiring minimum amounts of insurance to cover the particular liabilities on which Lewis acted as indemnitor. See Ogea v. Loffland Brothers Co., 622 F.2d 186 (5th Cir.1980).

For these reasons, the judgment of the trial court is affirmed with all costs to be paid by Lewis.

AFFIRMED.

WATKINS, J., dissents and assigns reasons.

WATKINS, Judge,

dissenting.

I disagree with the opinion of the majority for the following reasons:

It is well established that an indemnity agreement is to be strictly construed.

The majority opinion indicates that indemnity agreements are to be given an interpretation consonant with the common intent of the parties, rather than a literal interpretation. So construing an indemnity agreement runs counter to the legal principle which has been long established that indemnity agreements are to be strictly construed.

The opinion holds that even if no work order was given the repair work being performed was covered by the contract. I do not agree with this position.

Clearly the basic tenet of the contract between Lewis Crane and ODECO was that all work was to be done under work orders, either oral or written. This was the underlying principle of the entire contract, including that part providing for indemnity. As the provision for indemnity is to be strictly construed it follows that the right of ODECO to indemnity applies only to activities of Lewis Crane undertaken under work orders.

It is apparent that a genuine issue exists as to the material fact of whether or not a work order was issued. Clearly, there was no written work order. However, the deposition of Cecil C. Parsons of ODECO could be construed as indicating an oral work order had been issued. On the other hand, the affidavit of J.D. Fields of Lewis Crane states that no work order was ever issued. If there was in fact a work order, there is no need to construe the indemnity provision of the contract, as the work was clearly being performed under the contract. Also, it is unclear whether or not ODECO was negligent under the scant facts available to the court. If one is to be indemnified against one’s own negligence, an even more rigorous rule of strict construction is to be applied to indemnity contracts. As these facts are in dispute, and are indeed impossible to determine under the record before us, I think the issuance of summary judgment by the trial court was uncalled for and inappropriate.

I respectfully dissent.

      . Petroleum Equipment Tools Company (PET-CO) and its insurer, also made defendants, were dismissed prior to trial.

      . The deposition of an ODECO foreman indicated that plaintiff had damaged the seal when he hit it with a crane.

      . Elston v. Shell Oil Company, 376 F.Supp. 968 (E.D.La.1973) affirmed 495 F.2d 1371-(5th Cir. 1974) cited by Lewis, is distinguishable on the facts and the terms of the indemnity agreement.


author: CRAIN, Judge.

text:
    GAS UTILITY DISTRICT NO. 1 OF EAST BATON ROUGE v. Joel T. HOUK, et al. MUTUAL FIRE, MARINE AND INLAND INSURANCE COMPANY v. Joel T. HOUK, et al. McNAIR TRANSPORT, INC. v. Joel T. HOUK, et al.
    Nos. 82 CA-1072 to 82 CA-1074.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.
    Writ Denied Dec. 9, 1983.

      John L. Avant, Baton Rouge, for Gas Utility Dist. No. 1 of East Baton Rouge Parish.
    L. Gordon King, Robert Talley, Baton Rouge, for State of Louisiana, Through the Dept, of Transp. and Development.
    Stephen W. Glusman, Port Allen, for Liberty Mut. Ins. Co. and Joel T. Houk.
    O’Neal Walsh, Charles A. O’Brien, III, Baton Rouge, for Jenkins Const. Corp. and Aetna Ins. Co.
    Donald T.W. Phelps, John Swanner, Baton Rouge, for McNair Transport, Inc., Excalibur Ins. Co. and Louis D. Marcantel.
    Robert A. Hawthorne, Gary A. Bezet, Baton Rouge, for Fidelity & Deposit Co. of Maryland.
    William H. Cooper, Baton Rouge, for Mut. Fire, Marine & Inland Ins. Co.
    Before SHORTESS, LANIER and CRAIN, JJ.
   CRAIN, Judge.

This is an appeal from judgment of the trial court in three consolidated cases awarding plaintiffs, Gas Utility District No. 1 of East Baton Rouge, Mutual Fire, Marine and Inland Insurance Company; and McNair Transport, Inc.; property damages against the State of Louisiana, through the Department of Transportation and Development (DOTD).

The plaintiffs’ property damages resulted from an accident which occurred at the T-intersection of Louisiana Highway 64 and Piears Road in East Baton Rouge Parish on November 7, 1980. La. Highway 64 runs generally in an east-west direction. Piears Road runs generally north and south and intersects La. Highway 64 at its north margin where Piears Road ends. The intersection was being redesigned and relocated in conjunction with improvements to La. Highway 64 and had been under construction for several months. The work was being done by Jenkins Construction Corporation (Jenkins). The contract between Jenkins and the DOTD required Jenkins to remove a traffic island located in the center of Piears Road at the intersection, thereby narrowing Piears Road at the intersection. Piears Road was also elevated to eliminate a sharp incline to La. Highway 64. The relocation of the road resulted in the stop sign existing at the intersection prior to construction being approximately 27 feet from the new west edge of Piears Road and approximately 30 inches above the new road’s elevation.

The trial judge made the following findings of fact regarding how the accident occurred, which we adopt as our own:

“On the evening of November 7, 1980, Mr. Houk left his home in Baker, Louisiana to secure an article of clothing from his sister who lived in the vicinity of Piears Road and La. Highway 64. Mr. Houk was not familiar with the area and was advised as to the route to his sister’s home. Upon arriving at his sister’s home, he secured the article of clothing and received instructions on how to return to Baker, Louisiana. At approximately 6:40 p.m. Mr. Houk was driving south on Piears Road looking for La. Highway 64 when suddenly to his right he saw the headlights of the tractor-trailer driven by Louis Marcantel. Realizing he was in the intersection, Mr. Houk veered to the right but a collision occurred. Mr. Marcantel attempted to avoid the accident by veering right but his truck struck Mr. Houk’s vehicle and veered on the premises of Gas Utility District # 1 of East Baton Rouge Parish causing property damage to its property.
Mr. Everett L. Austin, project engineer for the State of Louisiana, testified that at the time of the accident the following signs were located on Piears Road near the scene of the accident.
1. On the northwest corner of Piears Road and La. Highway 64 was a stop sign that was 27 feet west of the west edge of Piears Road.
2. A sign showing ‘SL 45 Road Construction Next 2.2 Miles’ was located 171 feet north of the intersection.
3. A double arrow truck route sign located 346 feet north of the intersection.
4. A ‘stop ahead’ sign located 597 feet from the intersection.
5. A road construction ahead sign located 757 feet from the intersection.
Mr. Houk testified that at the time of the accident it was dark, and further he did not recall seeing any of the above mentioned signs. After the accident Mr. Houk stated that he located the stop sign off to the right of the road and in a ditch. Louisiana State Trooper, Larry K. Horton investigated the accident, and testified that Mr.' Houk stated he didn’t know the intersection was being entered for he never saw any stop sign. Trooper Horton testified he drove down Piears Road to reenact Mr. Houk’s route of travel to determine if the stop sign was visible. He stated that ones headlights would not pick up the stop sign . .. ”.

Gas Utility District No. 1 of Baton Rouge, Mutual Fire, Marine and Inland Insurance Company; and McNair Transport, Inc., each filed suit for property damages naming Joel T. Houk, Jenkins Construction Corporation, and the Department of Transportation and Development, among others, as defendants.. The cases were consolidated for trial, after which judgment was rendered in the plaintiffs’ favor against the DOTD only, in the amount of damages stipulated to by the parties. From that judgment the plaintiffs and the DOTD appeal.

Each of the appellants allege that the trial judge erred in dismissing the plaintiffs’ claims against Joel T. Houk, Jenkins Construction Corporation, and their insurers. The appellants argue that Houk was negligent in view of the fact that he had just travelled through the intersection 20 minutes before the accident and, in addition, should have been put on notice of the approaching intersection by four signs which he had to drive past.

Mr. Houk was travelling at night and being unfamiliar with the vicinity he was unsure of the location of the intersection. He had travelled through the intersection 20 minutes before, but from a different direction. Although he did pass a sign indicating there was a stop ahead, it was located 597 feet from the intersection after which he passed an incorrectly placed sign indicating the speed limit to be 45 m.p.h. and road construction for the next 2.2 miles. At best, these signs were misleading, and the fact that Mr. Houk did not recall seeing them does not support appellants’ assumption that he would also not have seen a properly located stop sign. As the trial judge pointed out in his written reasons for judgment, in Willis v. Everett, 359 So.2d 1080 (La.App. 3rd Cir.1978), writ denied 362 So.2d 800 (La.1978), the court stated that it must be presumed that had the sign been in place to warn the motorist of the intersection he would have obeyed it. Therefore, we agree with the trial judge’s finding that Mr. Houk was not negligent.

The appellant’s argument that the trial court erred in not finding Jenkins negligent is also without merit. The appellants base their argument on the fact that the contract between Jenkins and the DOTD incorporates by reference the Louisiana Standard Specifications for Roads and Bridges (1977 ed.), the Manual on Uniform Traffic Control Devices, and R-S-24. They interpret the provisions of those publications to place on the contractor the responsibility of deciding when and where regulatory signs should be relocated. These publications place certain responsibilities on the contractor to erect signs which are necessary to place the public on notice of the construction and to maintain existing signs. There is no provision that requires the contractor to relocate an existing regulatory sign not called for in the plans. State Farm Mutual Automobile Ins. Co. v. Dixon, 262 So.2d 141 (La.App. 1st Cir.1972), writ denied, 262 La. 1088, 266 So.2d 220 (1972). The DOTD had inspectors at this construction site on a daily basis whose job included checking the regulatory signs. There is also testimony that Jenkins had to obtain the DOTD’s permission before relocating a sign. For those reasons, we find no manifest error in the trial court’s finding that Jenkins Construction Corporation was not negligent.

The DOTD also argues on appeal that the trial judge erred in finding liability on its part. We disagree. As the trial judge pointed out, an agency maintaining a public rural road system has a duty to maintain the roads and traffic signs in a reasonably safe condition to warn motorists of unusually perilous conditions. Wall v. American Emp. Ins. Co., 377 So.2d 369 (La.App. 2d Cir.1979), affirmed on other grounds, 386 So.2d 79 (La.1980). The DOTD failed to do this despite the fact that its employees inspected the site daily. Therefore, we find that the trial judge was correct in concluding that the DOTD was negligent and solely liable for the damages which resulted from its negligence.

We do not find it necessary to discuss the DOTD’s argument that the contract provided a hold harmless agreement in the event of the contractor’s negligence, inasmuch as we find Jenkins not to be negligent.

Finally, the DOTD submits that it was error for the trial judge to admit a copy of the project diary made daily during the construction. At trial, counsel for the DOTD had objected to the admission of the document as hearsay. The trial judge admitted the document into evidence but stated that he would not draw any conclusion therefrom that the signs were improperly located. Later, in his written reasons for judgment, the trial judge pointed out that, the diary revealed that on the morning of the accident, the DOTD inspector had approved the location of signs and barriers. We do not reach the question of whether or not the project diary was hearsay and improperly relied upon, since the record re-fleets that witnesses testified to the same information.

For the reasons assigned above, the judgment of the trial court against the State of Louisiana, Department of Transportation and Development, dismissing all other defendants is affirmed in suits numbered 82 CA 1072, 82 CA 1073, and 82 CA 1074. All costs in each suit are to be paid by the DOTD, 82 CA 1072, $1214.53; 82 CA 1073, $618.15 and 82 CA 1074, $612.17.

AFFIRMED.

      . This is a standard plan for highway signs and barricade details for construction projects, which was included in this contract.


author: CARTER, Judge:

text:
    Karl MIRE v. Levi L. CROWE, Jr., et al.
    No. 82 CA 1079.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.

      Prank M. RePass, III and Dolores Williams, Slidell, for plaintiff, appellee.
    William J. Faustermann, Jr., Ron W. Guth, Slidell, for defendant, appellant.
    Before PONDER, WATKINS and CARTER, JJ.
   CARTER, Judge:

This is a possessory action involving a triangular piece of property located in St. Tammany Parish.

Karl Mire instituted this possessory action on December 10, 1981, against Levi L. Crowe, Jr. claiming that the defendant had disturbed his possession by advising plaintiffs lessee that Crowe claimed ownership of a portion of the property. After trial on the merits, judgment was rendered in favor of plaintiff and defendant perfected this appeal.

On March 16, 1968, Karl Mire bought from Levi L. Crowe, Jr. property located in Slidell, Louisiana described as follows:

“A certain tract or parcel of land, together with all the buildings and improvements thereon, and all rights, ways, advantages, and appurtenances thereunto belonging or in anywise appertaining situated in St. Tammany Parish, Louisiana, and more particularly described as Lot Six (6) of Section Eighteen (18) in Township 8 South, Range 15 East, of the St. Helena Meridian Louisiana, containing two (2) acres and sixteen hundredths of an acre, according to the official plat of survey of the said lands, in file in the General Land Office.”

Prior to passage of this act of sale, Mire and Levi Crowe, Jr. walked the boundaries of the property to be conveyed. The area pointed out to Mire by Crowe included an area in Lot 7, which could, be generally described as lying east of Lot 6 and bounded on the north and south by an extension of the north and south lines of Lot 6 and on the east by Langston’s Bayou.

Crowe does not question Mire’s possession of Lot 6. Crowe claims, however, that Mire’s title is limited to Lot 6 and does not cover any property in Lot 7. Both parties assert ownership of the disputed land, although the only issue on this appeal is whether Mire is entitled to be maintained in possession of the property. Crowe did not reconvene for possession of the property, but simply denied plaintiff’s possession.

Mire’s Acts of Possession

Upon acquisition of Lot 6 in 1968, Mire immediately took possession of the disputed property. Mire employed a surveyor and had the property surveyed. Mire and his nephews then walked the property and placed stakes for construction of a fence. A new fence was built along the northern boundary of the property to Langston Bayou and along the southern boundary to a •point referred to as the “gully”. No fence was erected through the “gully” because the area was under water during parts of the year. Mire also maintained and repaired the fences.

Hunting and fishing activities were also conducted on the disputed area. Family members and friends of Karl Mire often used a portion of the disputed property known as the “hill” to conduct these activities, with Mire’s permission.

Several of Mire’s nephews (with Mire’s consent) raised hogs in the area west of the gully and allowed cattle to graze over the entirety of the area, including the “hill”.

Mire erected a barn on the disputed area west of the gully and maintained a garden for several years in the general vicinity of the barn. Grass was clipped and maintained by Mire on the disputed tract.

In July, 1981, Mire leased the property to John Buttrey for the purpose of housing and maintaining horses on the premises.

Crowe’s Acts of Possession

Crowe lived on the property in dispute as a child and conducted various activities on the property prior to the sale to Mire in 1968. Crowe now owns a campsite south of and adjacent to the Mire property. The Crowe camp is bounded on the north by the disputed “hill”, on the east by Langston Bayou, and on the west by other Mire property. Crowe and his friends have used the disputed tract on several occasions to get to his camp.

The Trial Court’s Judgment

The trial court found that Mire was entitled to be maintained in possession of the disputed area and stated:

“... since acquisition of the property, Mr. Mire has been in actual, physical, open, public, unequivocal continuous, and uninterrupted possession of the property with the intent to possess as owner. The Court is also convinced by the evidence that upon execution of the act of sale on March 16,1968, Mr. Crowe terminated his prior possession of the disputed area. Mire was in possession at the time of Crowe’s disturbance and had been so without interruption for more than a year prior to the disturbance. Crowe’s disturbance was a disturbance in fact, and the possessory action was instituted by Mire well within a year of the disturbance. The few trespasses upon the property by Crowe and his friends, without knowledge of Mire, are of no significance. These trespasses are inadequate to establish possession by Crowe or his usurpation of the property in dispute. These disturbances — unknown to Mire— are not strong enough to interrupt Mire’s right to possess. These activities would in no way bring home to Mire the realization that his possession and control of the property is being challenged by Crowe.. .. ”

Defendant has appealed the trial court judgment, contending that the trial judge erred in finding that the plaintiff maintained the necessary possession of the area in dispute.

The Law

This action is governed primarily by LSA-C.C.P. art. 3658, which provides:

“To maintain the possessory action the possessor must allege and prove that:
(1) He had possession of the immovable property or real right therein at the time the disturbances occurred;
(2) He and his ancestors in title had such possession quietly and without interruption for more than a year immediately prior to the disturbance, unless evicted by force or fraud;
(3) The disturbance was one in fact or in law, as defined in Article 3659; and
(4) The possessory action was instituted within a year of the disturbance.”

Although Article 3658 lists four requirements for bringing the possessory action, the battle lines are often drawn over the question posed by paragraph (2): Who has the right to possess? This question, in turn, is often decided by a determination of whether any acts of the defendant have sufficiently interrupted the plaintiff’s possession so as to strip the plaintiff of his right to possess.

How the Right is Acquired

A person acquires the right to possess immovable property by possessing the property quietly and without interruption for more than a year. LSA-C.C.P. art. 8658(2); LSA-C.C. art. 3454(2), now repealed; see also LSA-C.C. arts. 3449(2), now LSA-C.C. art. 3434, and 3487, now LSA-C.C. arts. 3435, 3436 and 3476. The species of possession required to acquire the right to possess is either corporeal possession or civil possession preceded by the corporeal possession of the plaintiff or his ancestors in title. LSA-C.C.P. art. 3660. In all cases, a person must possess as owner and for himself. Thus, to acquire the right to possess, “one must combine the intention of possessing as owner with the corporeal detention of the thing.” Norton v. Addie, 337 So.2d 432, 436 (La.1976). Pitre v. Tenneeo Oil Co., 385 So.2d 840 (La.App. 1st Cir.1980), writ denied 392 So.2d 678 (La.1980).

This court in Plaisance v. Collins, 365 So.2d 608 (La.App. 1st Cir.1978) stated at page 611:

“The elements and characteristics of the possession necessary to maintain a possessory action vary with the nature of the property and other attending relevant circumstances. Gaulter v. Gennaro, 345 So.2d 92 (La.App. 1st Cir.1977). What constitutes possession in any case is a question of fact and each case must rest upon its own peculiar circumstances. Certainly, the landowner can only exercise over his land such possession as is practical and is reasonably contemplated from the nature of the property. ■ Thus, the acts which must be shown to establish possession are governed to a large extent by the use to which the land is destined or for which it is suitable. The type of possession essential to maintain a posses-sory action for one kind of property may differ from that required for another. Obviously, the possession requisite in the case of farm land is more than in the case of wood land; and, more possession is required in the ease of wood land than in the case of swamp or marsh land. Liner v. Louisiana Land and Exploration Company, 319 So.2d 766 (La.1975). That there may be possession of swamp or marsh land can not be questioned. The possession of marsh land contemplated by law is that which is commensurate with its nature, its chief value, and by the extent of the operations conducted thereon which the character of the soil and surroundings may reasonably permit. Hill v. Richey, 221 La. 402, 59 So.2d 434 (1952).”

The Louisiana law of possession and the jurisprudence interpreting it also provide that a person who possesses property in good faith under a deed translative of ownership is considered to possess to the extent of his title, provided he has corporeally possessed part of the property described in the deed. In such a ease, the person is considered to be in constructive possession of the entire tract. However, when one possesses without title, he is required to show an adverse possession by enclosures. Hill v. Richey, supra. Corporeal possession required to maintain a possessory action when one has no title contemplates actual possession within enclosures sufficient to establish the limits of possession with certainty, by either natural or artificial marks, giving notice to the world of the extent of possession exercised. Hill v. Richey, supra; Gaulter v. Gennaro, supra.

Hill v. Richey, supra, sets forth the following concerning enclosures:

“What the court means by ‘enclosures’, as that term is used in the numerous cases found in the jurisprudence, is that the land actually, physically, and corporeally possessed by one as owner must be established with certainty, whether by natural or by artificial marks; that is, that they must be sufficient to give definite notice to the public and all the world of the character and extent of the possession, to identify fully the property possessed, and to fix with certainty the boundaries or limits thereof. To say that the term means ‘enclosed only by a fence or wall’ would be giving it a very strict and narrow construction, not justified or supported by the articles of the Code, as we have hereinabove pointed out, and would lead to absurd consequences in some cases.” (emphasis added).

Once it is established that a person has possessed property, as required by law, quietly and without interruption for more than a year, he has proven his right to possess. There is no need to show he acquired this right in the year immediately preceding suit, but only that he obtained the right at one time and that he has not lost it prior to the disturbance. Liner v. Louisiana Land and Exploration Company, 319 So.2d 766 (La.1975).

How the Right is Lost

A person loses the right to possess immovable property either voluntarily, by transferring or abandoning the property; or involuntarily, by being evicted or expelled for more than a year or by acquiescing in a third party’s usurpation of the property for more than a year. LSA-C.C. arts. 3447, 3448, 3449, now LSA-C.C. art. 3433. Pitre v. Tenneco Oil Co., supra.

A question often arises as to what type of activity by an adverse party will sufficiently interrupt a person’s right to possess so as to usurp his possession and strip him of his right upon passage of more than a year’s time. Not every disturbance is strong or long enough to interrupt another’s right to possess. Disturbances which do not interrupt another person’s right to possess may be challenged in court and the disturber cast for appropriate damages and other appropriate relief. But such minor disturbances will be insufficient, even if unchallenged within a year’s time, to strip the right to possess from the person who presently has that right. See Liner, supra, particularly the per curiam opinion on rehearing, 319 So.2d 778; Pitre v. Tenneco Oil Co., supra; Plaisance v. Collins, supra; Richard v. Comeaux, 260 So.2d 350 (La.App. 1st Cir.1972); Yiannopoulous, 2 Louisiana Civil Law Treatise, Property, § 217, page 582 (2d Ed. 1980); and Work of the Appellate Court—1974-1975, Property, 36 La.L. Rev. 354 (1976).

Louisiana courts have indicated that for a disturbance to be sufficient to interrupt another’s right to possess, the disturbance must bring home to the actual possessor the realization that his dominion is being seriously challenged. Pittman v. Bourg, 179 La. 66, 153 So. 22 (1934); Souther v. Domingue, 238 So.2d 264 (La.App. 3rd Cir. 1970), writ refused 256 La. 891, 239 So.2d 544 (1970); Hebert v. Chargois, 106 So.2d 15 (La.App. 1st Cir.1958). In addition, the person with the right to possess must acquiesce in the interruption for more than a year without conducting any act of possession or without interfering with the usurper’s possession. LSA-C.C. art. 3449(2), now LSA-C.C. art. 3434.

The single rule of law that can be fashioned from the foregoing is that the plaintiff, to win a possessory action, must show that he at one time acquired the right to possess and that he has not lost the right prior to the disturbance. Stated another way, “possessory protection is available to anyone who has previously acquired the right to possess and did not lose it in the year preceding the disturbance.” Yiannopoulous, supra, § 215, page 580; see also Tate, J., concurring in denial of rehearing in Liner, supra, 319 So.2d 779, 782. In all cases, of course, suit must be filed within a year of the disturbance. LSA-C.C.P. art. 3658(4). A person who proves that he had the right to possess and that he has not lost it in the year prior to the disturbance has proved, concomitantly, that he is in possession of the property as required by LSA-C. C.P. art. 3658(1). See Liner, supra, and Plaisance v. Collins, supra, at 613.

Did Mire have the Right to Possess?

The facts that the trial court found, and we agree, prove that Karl Mire acquired the right to possess. For some fourteen years, Mire, his family, and his friends have performed various acts of corporeal possession on the disputed tract. Upon purchasing Lot 6 in 1968, Mire moved onto the property, had the property surveyed, and erected visible boundaries which comple-merited natural boundaries. Other acts of corporeal possession were conducted on the property, each act corresponding to the different kinds of property involved. Certain cleared areas were used to build a barn and plant a garden. The more wooded areas were utilized for walking and hunting. The areas which were partially covered by water were used for fishing. The disputed property was also used to graze cattle and raise hogs. Mire also granted a lease to a portion of the disputed tract. Those areas on which no corporeal activities were conducted were enclosed within the natural and the artificial boundaries established by Mire.

The record is also clear that when Mire took possession of Lot 6 and the disputed portion of Lot 7 in 1968, Crowe, who had previously conducted activities on the property, abandoned his use of the property, as owner, until August, 1981.

Did Mire Lose the Right to Possess?

Having found that Mire acquired the right to possess, and actually possessed, we must now determine whether any acts of Crowe were of sufficient strength to interrupt Mire’s possession or usurp Mire’s right to possess.

Unquestionably, Crowe committed a number of trespasses on the property. Crowe crossed Mire’s property to get to his own camp, primarily because Crowe had enclosed his camp by selling the surrounding property which fronted roads. These trespasses, however, seem not to have been made with Mire’s permission.

Crowe may also have conducted several disturbances, each of which would have entitled Mire to bring a possessory action, as Crowe hunted and fished on the disputed tract through the years. These isolated acts were insufficient to dispossess Mire, especially in light of the fact that Crowe had prior to the sale pointed out the now disputed area to Mire as being sold to Mire. See Plaisance v. Collins, supra at 616, where sporadic trapping, chicken farming, hunting, and leasing a house in the vicinity were held to be insufficient acts to dispossess the plaintiff.

Additionally, when plaintiff’s lessee, John Buttrey, was advised by Crowe on August 16, 1981, that he must cease building a corral and developing the “hill”, plaintiff instituted this possessory action on December 10, 1981, clearly within a year of the disturbance.

We are simply not convinced that any of the activities conducted on the disputed tract prior to the disturbance in August, 1981, interrupted the quiet and peaceable possession of Mire. Mire possessed the property as owner and conducted numerous activities which were consistent with the nature of the property in question. He never acquiesced in Crowe’s claims to the property, and he brought this action when it became apparent that Crowe claimed ownership of the “hill”. The trial court correctly determined that Mire proved his right to possession of the disputed area and that he did not lose this right in the year immediately preceeding this suit. The requisites for the possessory action were clearly established, and Mire is entitled to be maintained in possession.

Therefore, for the foregoing reasons, the judgment of the trial court is affirmed. Appellant is to pay all costs.

AFFIRMED.

      . Claire Crowe DeLaughter and H.A. Powell were also named as defendants. H.A. Powell was dismissed as a party defendant when it was determined that he had transferred ownership of his interest in the property. Mire amended his petition, naming Preferred Properties, Inc., the record owner of the property, as a defendant. Default judgments were entered against Claire Crowe DeLaughter and Preferred Properties, Inc. As neither has appealed from these judgments, they are not before us on appeal.

      . Chapters 1 and 2 and Chapter 3, Sections 1 and 2 of Book III, Title XXIII of the Louisiana Civil Code of 1870 (“Of Occupancy, Possession, and Prescription”) have been revised and re-designated by Acts of 1982, No. 187, § 1, effective January 1, 1983.


author: SHORTESS, Judge.

text:
    FRENCH JORDAN, INC. v. OILFIELD SALES AND SERVICE, INC.
    No. 82 CA 1090.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.

      Sidney C. Sundbery, Houma, for plaintiff.
    William 0. Bonin, Landry, Watkins & Bonin, New Iberia, for defendant.
    Before SHORTESS, LANIER and CRAIN, JJ.
   SHORTESS, Judge.

On December 21, 1978, a 1965 International Harvester van, equipped with oil field testing equipment and owned by French Jordan, Inc. (plaintiff), was involved in an intersectional collision on Amelia Road in St. Mary Parish. Plaintiffs vehicle was unique because equipment was installed in it which made it a mobile oil field pipe inspection unit. As it was equipped, plaintiff could go to the customer’s site and do work rather than require the customer to bring the work to its premises. A truck owned by Oilfield Sales and Service, Inc. (defendant) and driven by its employee, Ulyses I. Bias, failed to obey a stop sign and struck plaintiff’s unit. Liability was not a serious issue.

The trial judge found that the van was rendered a total loss, and he awarded plaintiff $1,200.00 for it, based on the estimated fair market value of the van at the time of the accident. He also found that plaintiff was entitled to recover the sums of $31,-113.29 and $6,991.89 as the costs of labor and materials, respectively, which plaintiff expended to remove the relatively undamaged inspection equipment from the damaged van to replace it in another van. However, the court assessed plaintiff a 50% discount factor for “reasonable depreciation” to the labor and materials, so the total property damage award was only $20,-252.59.

The court also found that the loss of income while the replacement van was being outfitted was approximately $25,000.00 per month and $75,000.00 for the entire period. The court also determined, based on the income and expense figures presented at trial, that plaintiff’s profit margin on the $75,000.00 would have been 16%. Based on this finding, the court awarded plaintiff $12,000.00 for lost profits.

The total judgment for plaintiff, including an amount of $206.33 for towing charges, was $32,458.92 together with legal interest from March 23, 1979, until paid. Defendants were taxed for costs and expert witness fees.

Plaintiff perfected this appeal, urging three assignments of error:

(1)the trial court erred when it-discounted by 50% the labor and materials costs incurred by plaintiff to remove the pipe inspection equipment from the demolished van and remount it in the replacement van;

(2) the trial court erred when it reduced plaintiff’s loss of income by assessing plaintiff 84% for expenses; and

(3) the trial court erred when it refused to admit the testimony of Dr. Randolph Rice, an economist.

In determining damages, the trier of fact is accorded much discretion, especially where the facts of the case preclude a precise computation of damages. Emerson v. Empire Fire & Marine Ins. Co., 393 So.2d 691 (La.1981); Bosweil v. Roy O. Martin Lumber Co., Inc., 363 So.2d 506 (La.1978); Hymel v. Tom Alexander Brokerage Co., 348 So.2d 104 (La.App. 4th Cir.1977), writ denied 350 So.2d 894 (La.1977). No mechanical rule of determining damages is to be applied; the quantum in each case must be determined considering the facts and circumstances of that case. Coleman v. Victor, 326 So.2d 344 (La.1976); Kalmn, Inc. v. Empiregas, Corp., 406 So.2d 276 (La.App. 3rd Cir.1981). Although trial judges are granted great discretion in determining damage awards, these awards must be made in accordance with law. Cenac v. Duplantis Moving & Storage Co., 407 So.2d 424 (La.App. 1st Cir.1981). The proper goal of a damage award is to restore the plaintiff, as closely as possible, to the position which he would have occupied had the accident never occurred. Coleman, 326 So.2d at 346; Kalmn, 406 So.2d at 281; Williams v. Louisiana Machinery Co., Inc., 387 So.2d 8 (La.App. 3rd Cir.1980).

DAMAGES FOR PIPE TESTING UNIT

As stated, the vehicle in question was rather unique in that equipment had been installed in it which enabled plaintiff to perform on-site inspections of oil field piping materials. Comparable vehicles did not exist, and the trial court found that it was unable to approximate the value of the pipe testing unit as a whole. It therefore awarded plaintiff $1,200.00 for the loss of the van alone. This figure obtained from Edward Fontenot, defendant’s witness, was accepted by the trial court as the accurate fair market value of the van on the date of the accident. Based on the record, we do not find this determination to be manifestly erroneous and affirm the trial court’s award of $1,200.00 for loss of the van.

Soon after the accident, plaintiff began installing the pipe testing equipment, which had been in the demolished van, in a replacement van. This equipment had survived the collision relatively unscathed. Plaintiff proved that it had expended $31,-113.29 in wages to its own employees and to some outside labor to remove the equipment from the old van, repair it, and install it in the replacement van. The trial court found this figure to be an accurate computation of the labor costs incurred by plaintiff. The trial court also accepted plaintiff’s claim of $6,991.89 as the cost of materials required to complete the installation. However, the trial court assessed plaintiff a 50% depreciation factor on these labor and materials costs. Plaintiff asserts that this assessment was erroneous.

Generally, three approaches have been followed by the Louisiana courts in arriving at the amount of damages to property: (1) the cost of restoration if the thing damaged can be adequately repaired; (2) the difference in value prior to and following the damage; or (3) the cost of replacement less reasonable depreciation, if the value before and after the damage cannot be reasonably determined, or if the cost of repairs exceeds the value of the thing damaged. Cenac, 407 So.2d at 427; Kalmn, 406 So.2d at 281; Hymel, 348 So.2d at 105; Davis v. Roberts, 194 So.2d 772 (La.App. 1st Cir.1967). The trial court considered these three tests, concluded the first two were inapplicable, and applied the third test—cost of replacement less depreciation. We find, under the principles announced in Coleman and Kalmn, that strict application of the third test to the unique facts presented here constitutes reversible error.

In order to return plaintiff to the position it occupied before the accident, the award must be sufficient to restore the pipe inspection unit. Considering the peculiar nature of the unit, i.e., that it is a van containing specialized equipment installed by the owner, we find it logical to consider restoration of the pipe inspection unit to include replacement of the van and restoration of the equipment to its condition before the accident. We have already affirmed the trial court’s award for replacement of the van, and we find that installation of the same equipment in the new van qualifies as a restoration of the pipe inspection unit.

The purpose of assessing a depreciation factor under the third test is to prevent plaintiff from replacing an old vehicle with a new vehicle and occupying a better position after the accident than before. That consideration is not present regarding the labor costs because those expenditures merely restored to plaintiff a van with equipment, i.e., a pipe inspection unit. Likewise, the materials used to reinstall the equipment are closely analogous to the paint and chrome trim used to repair a dented fender.

We find that the expenditures on these materials merely helped to restore the equipment; therefore, the application of a depreciation factor in this situation was improper and in error.

DAMAGES FOR LOST PROFITS

Plaintiff is entitled to the income which it lost while its pipe testing equipment was being installed in another van. The accident occurred in late December, 1978, and the new unit was ready by the end of March, 1979. The trial court found, considering the complexity of the unit, that three months was not an unreasonable time to restore it; that the replacement was begun promptly and carried out diligently; and that plaintiff was therefore entitled to the income which it lost for the first three months of 1979. We agree.

The evidence presented at trial included the testimony of accountants, both for plaintiff and'defendant, and the testimony of Jerry Ledet, plaintiff’s manager. Despite the availability of financial statements prepared by the accountants, the trial court did not determine precisely the amount of profits lost when plaintiff refused certain jobs while the unit was down. Noting that average monthly sales attributable to each unit varied from $17,616.00 per unit for the six months immediately preceding the month of the accident to $24,694.00 per unit for the three months that the unit in question was not in service, and continued to rise to $28,500.00 per month per unit for the following fiscal year, the trial court found that $25,000.00 per month was a reasonable loss of income attributable to the unit being out of service. We would have perhaps preferred an alternative method of estimating the lost income, such as consideration of the income attributable to this disabled van and the availability of other vans to do the foregone jobs as the calls came in. However, based on the evidence contained in the record, it was not an abuse of discretion to determine the loss of income by comparing the sales-per-unit figures for the months immediately surrounding and including the three months during which the unit was disabled. The finding of a three-month loss of $75,000.00 is very reasonable, considering the gradually increasing per-unit sales figures over the months in question. We agree with the finding the trial court as to the amount of income lost for the three-month period after the accident.

In determining the expenses to be subtracted from the income in arriving at a figure for lost profits, the trial court noted that the net pre-tax income for the fiscal year in which the accident occurred was 16% of sales. He therefore assessed plaintiff 84% of the $75,000.00 as expenses and awarded $12,000.00 as lost profit. However, this finding failed to take into account the uncontradicted testimony of Ledet and the accountants, Errol Broussard, Jr., and Charles Castaing. All three testified that had plaintiff’s van been operating, plaintiff would have incurred some expenses, but would not have incurred expenses in all categories used to compute the company’s overall expenses. Ledet testified further as to the particular categories in which plaintiff would have incurred expenses had the jobs been performed. According to him, additional expenses would have been incurred in six specific areas totaling 21.6% of the additional gross income produced. Broussard, plaintiff’s accountant, testified that Ledet’s estimation of the variable costs assignable to the lost unit was “a very accurate approach”; Castaing, defendant’s accountant, also endorsed the exclusion of the fixed expenses from the profit determination. We find that the reasonable approach is to deduct only those items of variable expense which would have increased had the unit been operational. To deny plaintiff recovery of his fixed expenses is to fall short of making him whole. If the accident had never occurred, plaintiff would have received some income from the unit which would have been allocated to payment of the fixed expenses. To deny it that margin of profit now would force plaintiff to pay the same fixed expenses from a smaller pool of income, namely, the profit made from the remaining pipe inspection units.

This is in accord with the Louisiana treatment of fixed expenses. White v. Rimmer & Garrett, Inc., 340 So.2d 283 (La.1976); Magnolia Construction Company, Inc. v. Causey, 421 So.2d 990 (La.App. 3rd Cir. 1982), writ denied 426 So.2d 177 (La.1983); Minyard v. Culotta, 128 So.2d 797 (La.App. 4th Cir.1961). Even though these cases dealt with the recovery of damages by subcontractors whose subcontracts were breached by general contractors, we believe the principle is the same. Accordingly, we find that the trial court committed manifest error in deducting 84% from the income figure to determine profit. We hold that the proper measure of damages for plaintiff’s loss of profit is $58,800.00, which is the $75,000.00 of lost income less 21.6% as the amount of expenses plaintiff would have incurred to do the extra work.

EXCLUSION OF PLAINTIFF’S WITNESS

The trial court sustained defendant’s objection to the testimony of Dr. Randolph Rice, an expert economist, based on plaintiff’s failure under La.C.C.P. art. 1428 to supplement prior answers to defendant’s interrogatories and reveal the names of all persons plaintiff might call at trial as expert witnesses. Defendant did not learn about Dr. Rice until he was called as a witness. Under these circumstances, the trial judge was correct in refusing to permit Dr. Rice to testify.

DECREE

The judgment of the trial court is amended to increase the property damage award to $38,105.18 to include the cost of all labor and materials necessary to restore the unit without depreciation and to increase the loss of profit to $58,800.00. In all other respects, it is affirmed.

All costs of this appeal are taxed to defendants.

AMENDED AND AFFIRMED.


author: CARTER, Judge: WATKINS, Judge,

text:
    Alice Bertha Vatter, Wife of/And Errol V. ARENA v. K MART CORPORATION.
    No. 82 CA 1093.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.
    Writ Denied Dec. 9, 1983.

      Joseph P. Anderson, Jr., Slidell, for plaintiff, appellant.
    E. Phelps Gay, New Orleans, for defendant, appellee.
    Before PONDER, WATKINS and CARTER, JJ.
   CARTER, Judge:

Plaintiffs, Alice Bertha Vatter, wife of/and Errol V. Arena, sued K Mart Corporation for damages for mental and emotional stress. After a trial on the merits, the judge found for the defendant and dismissed plaintiffs’ suit. Plaintiffs have perfected this appeal.

The trial judge found the facts as follows:

“On the evening of October 12, 1981, the plaintiffs, accompanied by their three children, entered the K Mart Store in Slidell for the purpose of purchasing a new television set. Plaintiffs had seen advertisements run by K Mart indicating that the televisions were on sale.
“Upon reaching that section of the store in which the televisions were exhibited, they were met by Assistant Manager Michael D. Callaway. He accompanied the plaintiffs as they viewed the televisions, and one of the sets about which plaintiffs indicated an interest was a twenty-five inch General Electric color set. Galloway (sic) showed them the price tag and advised that the price would be $609.00 plus tax. Mr. Arena indicated that he did not have that much cash on his person and inquired as to whether or not the difference could be paid by a personal check. The Arena family looked at the inventory of sets on display and returned to the twenty-five inch General Electric. Callaway erroneously advised the cashier that the sale price was $341.05. This price, plus tax, was paid by Arena, and Mr. Arena, assisted by a stock boy, carried the set outside the front of the store where the Arenas waited for a neighbor to come in his pickup truck to take the set to their home.
“Callaway realized he had given the cashier an erroneous price and reported his error to Patrick O’Brien, the store manager. Mr. O’Brien immediately went to the front of the store, and rather than permit the Arenas to depart with the television, Mr. O’Brien used his body to block Mr. Arena from the television, and instructed the stock boy to return the set to its original location within the store. Fearing trouble, Callaway called the Sli-dell police department, and two officers arrived at the scene. Arena was advised by the officers to go back in the store, obtain a refund, and depart the scene. Arena followed their advice, and this lawsuit followed.”

ASSIGNMENT OF ERROR NO. 1

Plaintiffs argue on appeal that the trial court erred in finding that Errol V. Arena knew that the correct sale price of the television set was $609.00 and that he elected to take advantage of this error of fact with respect to the price of the television set. The record reveals that there was a dispute as to whether Mr. Arena had ever been given the correct price of $609.00. Mr. and Mrs. Arena testified that the only price given them was approximately $340.00, while Mr. Calloway testified that he had originally given them a price of $609.00, and had even spent some time with them discussing payment terms, i.e., paying for the item with a mixture of cash and check.

The trial judge stated in written reasons for judgment that after “having observed the demeanor of the witnesses” he was convinced the price tag on the television indicated a sale price of $609.00. He further noted that Callaway’s testimony concerning the price tag had been corroborated by Chris Boege, the stock boy who had helped in moving the set. After a thorough reading of the record, we cannot say that the factual findings of the trial judge were erroneous. Arcene aux v. Do-mingue, 365 So.2d 1330 (La.1978).

ASSIGNMENT OF ERROR NO. 2

Next, plaintiffs argue that the trial court erred in holding that the television set was owned by K Mart at the time O’Brien had it taken back into the store. Clearly, a contract may be invalidated by a unilateral error as to a fact (which was a principal cause for making the contract) where the other party knew or should have known it was the principal cause. Nugent v. Stanley, 336 So.2d 1058 (La.App. 3rd Cir. 1976); Deutschmann v. Standard Fur Company, Inc., 331 So.2d 219 (La.App. 4th Cir. 1976); LSA-C.C. arts. 1819, 1823.

On this point, the trial judge wrote: “Receiving the sum of $609.00 plus tax was certainly the principal cause that K Mart had for entering into the sales contract with the Arenas. The Court is also convinced that Mr. Arena knew that the true sale price amounted to $609.00, and that he elected to take advantage of Call-away’s mistake. Under these circumstances the error of fact on the part of Callaway vitiated the consent necessary to make the transaction a valid sale.”

We agree with the findings of the trial court and therefore find no merit in plaintiffs’ assignment of error.

ASSIGNMENT OF ERROR NO. 3

Third, plaintiffs argue that the trial court erred in holding that the removal of the television set by K Mart from the possession of Errol Arena did not constitute a conversion. Conversion is a distinct act of dominion wrongfully exerted over another’s property in denial of or inconsistent with the owner’s rights therein. Haymon v. Holliday, 405 So.2d 1304 (La.App. 3rd Cir.1981). Because we agree with the findings of the trial court regarding the status of the contract for the sale of the television set, we find that there was no conversion.

ASSIGNMENT OF ERROR NO. 4

Plaintiffs next contend that the trial court erred in holding that the registering of a complaint by the K Mart employee with the Slidell Police Department against Errol Arena was justified. In their brief, plaintiffs cite and discuss several cases dealing with malicious prosecution. These eases hold that in an action to recover damages for malicious prosecution, the plaintiff must prove: (1) termination of the proceeding in favor of the plaintiff; (2) lack of probable cause; and (3) malice on the part of the defendant. Carter v. Catfish Cabin, 316 So.2d 517 (La.App. 2d Cir.1975); Whittington v. Gibson Discount Center, 296 So.2d 375 (La.App. 2d Cir.1974). These cases and the principles they address have no application to the case sub judice. Arena was not arrested and no charges were ever filed against him by K Mart. The assistant manager of K Mart was merely being prudent when he took the precaution of having the police come to the scene in order to forestall any problems which may have arisen as a result of the dispute.

ASSIGNMENTS OF ERROR NOS. 5 AND 6

Lastly, plaintiffs argue that the trial court erred in holding that K Mart did not use unreasonable force in removing the television set from the possession of Errol Arena and in holding that there was no enforceable claim against K Mart as a result of the above action.

It is clear from the review of the complete record that the actions taken by the employees of K Mart were reasonable under the circumstances. Even according to Mr. Arena’s testimony, the only action taken by Mr. O’Brien was to stand in front of the television while he had an employee move it back inside the store and out of the doorway. There was no physical action taken against Mr. Arena personally at any time. Neither plaintiff suffered any physical injury or financial loss as a result of the incident, and the testimony of other witnesses (K Mart personnel and the police) is that the incident lasted only 10-15 minutes. The entire episode occurred without drawing the undue attention of any shoppers.

For the foregoing reasons, the judgment of the trial court is affirmed. Costs on appeal are to be paid by plaintiff-appellants.

AFFIRMED.

WATKINS, J., dissents and assigns reasons.

WATKINS, Judge,

dissenting.

When Mr. Arena paid the sum of $341.05 to the cashier, upon the instruction supplied to the cashier by Mr. Callaway, the Assistant Manager, a sale of the television set took place. Clearly, there was error as to price. However, under LSA-C.C. art. 1881, engagements entered into through (inter alia) error are not absolutely null, but are voidable by the parties. It was necessary for K Mart to pursue action in the courts to set aside the sale. For the employees of K Mart to attempt by force to obtain the return of the television set constituted a tortious violation of the Arenas’ right of ownership. The television set at the time of the forced return belonged to the Arenas. K Mart was free to pursue action in the courts to have the sale set aside for error as to a principal motive, viz. the price, but until judgment was secured setting aside the sale, the television set belonged to the Arenas.

It is noteworthy that in both of the cases cited by the majority to establish the invalidity of the sale of the television set, the sales of the items in those cases were invalidated by the judgments rendered in those cases — the sales were not held to have been void ab initio.

I respectfully dissent.


author: PONDER, Judge.

text:
    Andrea Clesi FERTITTA and Jack Gathian Fertitta v. ALLSTATE INSURANCE COMPANY, et al.
    No. 82 CA 1101.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.
    Writ Granted Jan. 16, 1984.

      Stephen E. Broyles, Baton Rouge, for plaintiff-appellee Andrea Clesi Fertitta & Jack Gathian Fertitta.
    Ben F. Day, Baton Rouge, for third party plaintiff-appellee Paula McCarron.
    Ben Lousi Day, Baton Rouge, for third party defendant-appellee State Farm Mut. Auto. Ins. Co.
    Donald R. Smith, Baton Rouge, for defendant-appellant Allstate Ins. Co. & Paul McCarron.
    Before PONDER, WATKINS and CARTER, JJ.
   PONDER, Judge.

Allstate Insurance Company, both defendant and third-party defendant in this proceeding, has appealed the judgment of the trial court finding it solidarily liable with its insured to the extent of its policy limits, and liable to its insured for the excess of the judgment over its policy limits.

The issues on appeal are the bad faith of Allstate in handling the claim and the effect to be given plaintiff’s settlement with her uninsured motorist insurer prior to trial.

We amend and affirm.

Plaintiff, a passenger in an automobile driven by her husband, was injured in an accident in which defendant, Paula McCar-ron, the driver of the other car involved, was found to be at fault. Plaintiff and her husband sued Paula McCarron; Allstate, the insurer of the car McCarron was driving; and State Farm, plaintiff’s uninsured motorist carrier. Paula McCarron filed a third party demand against Allstate alleging its actions were arbitrary, capricious and in bad faith in failing to settle the personal injury claim of plaintiff.

Prior to filing the suit, plaintiff offered to settle with Allstate and McCarron for the $10,000.00 liability policy limits. Allstate refused unless State Farm’s subrogat-ed medical payment claim in the amount of $2,668.05 was also settled within the policy limits. After negotiations had failed, State Farm waived its right to subrogation on the medical payments claim.

Just prior to trial, plaintiff settled her claim with State Farm for $32,000.00 out of the available $50,000.00 of uninsured motorist coverage. State Farm waived all rights to reimbursement or subrogation.

.The trial judge found in favor of plaintiff and against McCarron, awarding $40,000.00 in general damages and $8,701.11 in special damages. Allstate was found to be solidarily liable with McCarron for its $10,000.00 coverage. Paula McCarron was granted a judgment against Allstate for all amounts over its policy limits plus $2500.00 in attorney’s fees.

In written reasons, the trial judge ruled the plaintiff’s settlement with State Farm should not be considered in formulating the judgment against defendants, since uninsured motorist coverage was not designed to protect the tortfeasor. He reasoned that there was no double recovery since neither McCarron nor Allstate would have further exposure to plaintiff.

Allstate argues that the trial court erred in finding that it acted negligently and in bad faith in handling the claim of its insured.

An insurer must consider the interest of the insured as paramount when an offer to settle is made; the insurer’s duty is to act in good faith and to deal fairly when handling and settling claims in order to protect the insured from exposure to excess liability. See Holtzclaw v. Falco, Inc., 355 So.2d 1279 (La.1978). The factors to be considered in determining good faith when refusing to settle are: (1) the probability of the insured’s liability; (2) the adequacy of the insurer’s investigation of the claim; (3) the extent of damages recoverable in excess of policy coverage; (4) the rejection of offers in settlement after trial; (5) the extent of the insured’s exposure as compared to that of the insurer; and (6) the nondisclosure of relevant factors by the insured or insurer. Domangue v. Henry, 394 So.2d 638 (La.App. 1st Cir.1980), writ denied, 399 So.2d 602 (La. 1981).

McCarron’s liability was at least tacitly acknowledged by Allstate through payment of plaintiffs property damage claim soon after the accident. Allstate first knew of the personal injuries two months after the accident but still claimed it had not adequately investigated them eight months later, even after receiving plaintiffs medical reports. Plaintiff’s special damages alone were approximately $8,000.00 and the facts certainly indicated that general damages would be in excess of policy limits.

Allstate never informed McCarron of plaintiffs offer to settle. Allstate’s representative stated that she tried to contact McCarron at the address listed on the accident report and also sent one letter to her in care of the car’s owner, but without a street or mailing address. McCarron testified that she lived at the same address following the accident for approximately three months. When she moved to another apartment, her phone number remained the same and she was listed in the local telephone directory. McCarron’s first correspondence from Allstate was by certified letter sent to her brother’s address and notifying her of excess liability under plaintiff’s suit. Allstate’s attempts to contact McCar-ron were inadequate.

Allstate argues that it would have settled for the policy limits had State Farm’s sub-rogation claim been resolved, as it wanted to protect its insured from any liability. However, in doing so, Allstate erred in not considering McCarron’s potential excess exposure, particularly where there was little dispute over her liability.

Allstate should have made more of an attempt to contact its insured, investigated the claim more thoroughly and considered the extent of McCarron’s personal exposure. We agree that Allstate acted in bad faith.

Allstate next argues that the trial court erred in failing to take into account plaintiff’s pretrial settlement with her uninsured motorist insurer. We disagree.

Hoefly v. Government Employees Insurance Company, 418 So.2d 575 (La.1982), held that tortfeasors and uninsured motorist carriers are solidary obligors as to the injured party, and that payment by one should exonerate the other from the creditor as to the solidary obligation. The Supreme Court cautioned, however, that although solidarily bound for the creditor’s benefit, a tortfeasor and an uninsured motorist carrier might have differing relationships among themselves.

State Farm’s obligation as a soli-dary obligor is conditioned by McCarron’s insufficient coverage of liability insurance, the type of damage caused by the tort-feasor and any limits in the insurer’s policy that are permitted by law. Hoefly v. Government Employees Insurance Company, supra. The solidary obligation is limited by the tortfeasor’s liability insurance coverage and the limits of uninsured motorist coverage. McCarron and State Farm were solidary obligors as to the amount of the judgment above McCarron’s liability insurer’s obligation and within State Farm’s policy limits.

While McCarron was cast for the full amount of the judgment, Allstate’s liability was extended to all amounts over its policy limits because of its improper handling of the claim. There is no solidary obligation between Allstate and State Farm since State Farm’s obligation does not come into effect until Allstate’s obligations have been fulfilled. State Farm may be classified as an “excess insurer” as Allstate argues, but only because of its coverage over and above any liability coverage and not because it is available for the protection of the tortfeasor. Uninsured motorist coverage is designed for the protection of the insured and not for the protection of the uninsured or underinsured motorist. Strauss v. Allstate Insurance Company, 417 So.2d 60 (La.App. 3rd Cir.), writ denied, 420 So.2d 982 (La.1982).

In the absence of a solidary obligation between State Farm and Allstate, we find no reason to credit Allstate with unnecessary payments made by State Farm. In a choice of windfall either to the liability insurer or to the injured party, we choose to elect the latter.

McCarron answered Allstate’s appeal requesting an increase in attorney’s fees by $5,000.00 for the cost of appeal. The trial court granted Attorney’s fees in the amount of $2,500.00. Considering the time and effort expended by insured’s counsel, we amend that award to $3,500.00. The judgment is affirmed as amended with costs to be paid by Allstate.

AMENDED AND AFFIRMED.

      . Plaintiffs husband’s claim was settled prior to' trial.

      . The portion of State Farm’s policy covering the limits of liability for uninsured motorist coverage stated in part:
      * * * * * *
      (b) Any amount payable under the terms of this Part because of bodily injury sustained in an accident by a person who is an insured under this Part shall be reduced by
      (1) all sums paid on account of such bodily injury by or on behalf of (i) the owner or operator of the uninsured automobile and (ii) any other person or organization jointly or severally liable together with such owner or operator for such bodily injury including all sums paid under Coverage A, and ....


author: SAVOIE, Judge.

text:
    Werlin ROBINSON v. Willie PHILLIPS.
    No. 82 CA 1110.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.
    Writ Denied Dec. 9, 1983.
    James E. Swayngim, Fine, Waltzer & Bagneris, New Orleans, for plaintiff-appel- . lant.
    Roger R. Roy, New Orleans, for defendant-appellee.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   SAVOIE, Judge.

Plaintiff appeals the dismissal of his peti-tory action against defendant. The trial court concluded that plaintiff failed to prove ownership. We agree and affirm.

The subject property is a lot, 48 feet by 85 feet, located in a rural area of Assumption Parish upon which the defendant’s home is situated. Defendant allegedly purchased this property in 1954 from his father-in-law, John Robinson. Subsequently, the defendant purchased materials which were used for the construction of his home on the subject property. John Robinson died on October 15, 1969. Sometime after John Robinson’s death, plaintiff filed suit to be recognized as owner of the property.

In a petitory action, the plaintiff bears the burden of establishing his title. L.S.A.C.C. art. 531. If the defendant is in possession of the property, the plaintiff discharges his burden by proving that he acquired ownership from a previous owner or by acquisitive prescription. L.S.A.-C.C. art. 531; L.S.A.-C.C.P. art. 3653(1). When titles are traced to a common author, the common author is presumed to be the previous owner. L.S.A.-C.C. art. 532; L.S.A.-C. C.P. 3653.

Defendant is in possession of the property. He claims ownership from John Robinson by an act of sale dated February 6, 1954. Plaintiff contends that John Robinson owned the property at the time of his death and asserts ownership as a forced heir of John Robinson.

Plaintiff introduced a 1954 act of sale by John Robinson, conveying said property to Willie Phillips. This act of sale is in authentic form. However, plaintiff contends that the signature of John Robinson contained thereon is a forgery. To substantiate his contention, plaintiff presented the testimony of a handwriting expert.

In proof of handwriting, all testimony rests upon the principle of comparison, except where the witness has seen the handwriting actually performed. As such, it is merely opinion evidence and must yield when pitted against positive testimony as to the actual writing. Arnett v. Marshall, 210 La. 932, 28 So.2d 665 (1946); see also State, Department of Highways v. Moity, 276 So.2d 770 (La.App. 3rd Cir.1973).

Nicholas Molligan, plaintiffs handwriting expert, compared the questioned signature with purported signatures of John Robinson on a 1937 act of sale and on several letters. Molligan opined that the signatures on the latter documents were not the same signature that appeared on the 1954 act of sale.

Contrary thereto, Clifton Dolese, notary public for both acts of sale filed in evidence, testified that the 1954 act was signed by John Robinson. Mr. Dolese stated that he knew all the parties in both transactions by sight. Further, Dolese’s testimony, taken as a whole, indicates that he had an independent recollection of John Robinson signing the 1954 sale. In addition, Phillips stated that Robinson signed the document.

This testimony establishes the genuineness of John Robinson’s signature on the 1954 act of sale. Accordingly, John Robinson did not own the subject property at the time of his death. Therefore, plaintiff has no claim as a forced heir of John Robinson on that property and cannot establish ownership thereby.

The judgment of the trial court is affirmed. Costs are to be borne by plaintiff.

AFFIRMED.

      . Weaver v. Hailey, 416 So.2d 311, at page 317 (La.App. 3rd Cir.1982) states in pertinent part, as follows:
      ⅝ sfs sfc * sfc s}s
      “From this explanation, it is clear that when the legislature adopted in 1979 Civil Code article 531, requiring that the plaintiff in a petitory action against a defendant in possession must prove that he has acquired ‘ownership from a previous owner,’ it intended to retain the rule in Pure Oil Company v. Skinner, not overrule it. The intent was to require that such a plaintiff prove he had acquired ‘ownership from a previous owner,', i.e., an owner who had a perfect record title back to the sovereign, or ownership by acquisitive prescription. Article 532 solved the common author problem, by stating that ‘when the titles of the parties are traced to a common author, he is presumed to be the previous owner.” (Emphasis added).


author: LANIER, Judge.

text:
    BONFANTI MARINE, INC. v. Mark CLEMENT.
    No. 82 CA 1112.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.
    Michael Clegg, Baton Rouge, for plaintiff.
    Jerry Bunch, Denham Springs, for defendant.
    Before SHORTESS, LANIER and CRAIN, JJ.
   LANIER, Judge.

Bonfanti Marine, Inc. (Bonfanti) filed this suit for liquidated damages for breach of a written contract of sale against Mark Clement, the purchaser of a boat, motor and trailer. The trial court rendered judgment in favor of Clement and dismissed Bonfan-ti’s suit. This devolutive appeal followed.

FACTS

On July 9, 1981, at approximately 9:00 A.M., Mark R. Clement executed a written contract to purchase a used boat, new motor and used trailer from Bonfanti. The purchase price was $6,386.70. Clement gave Bonfanti his personal check for $1,387.00 as a deposit. The balance of $4,999.70 was to be financed. The pertinent portion of the sales contract is as follows:

In case of default by the purchaser the deposit and trade-in shall be retained by THE SELLER, as agreed liquidated damages and no refund shall be made. Any deposit made by the purchaser in connection with this agreement is not earnest money. In case of default by the seller, seller shall only be liable for return of the amount deposited by the purchaser.
This contract is not valid unless signed by an officer of THE SELLER; and approved by a responsible financial institution as to any financed balance. (Emphasis added).

To finance the balance due on the purchase price, Clement signed a promissory note dated July 11, 1981, in the sum of $7,612.80 payable in 48 monthly installments of $158.60. To secure payment of the promissory note, Clement also executed a chattel mortgage dated July 11, 1981, on the boat, motor and trailer. Bonfanti is designated the mortgagee on the chattel mortgage, but did not execute it. The chattel mortgage is not signed by two witnesses and does not bear the signature of a notary public. The promissory note is not par-aphed by a notary public for identification with the chattel mortgage. The back of the promissory note contains printed full recourse and partial recourse endorsements in favor of the Louisiana National Bank of Baton Rouge.

Clement also signed an application dated July 9, 1981, to the Department of Wildlife and Fisheries to transfer the registration of the boat from Bonfanti to himself.

At the trial Clement testified, over objection, that when he executed the above documents, a representative of Bonfanti verbally agreed to repair a crack on the cowling of the motor and fix several punctures in the hull of the boat. This verbal agreement is not included in the written act of sale. Clement also testified that the boat was to be ready for him after 2:00 P.M. on July 9, 1981. When Clement returned to pick up his boat, motor and trailer, the repairs had not been accomplished. Clement advised Bonfanti that he no longer wished to purchase the boat and left. Clement thereafter stopped payment on the check.

By letter dated July 16, 1981, Bonfanti notified Clement that it had been informed by the bank that payment had been stopped on the deposit check and made demand upon Clement for reimbursement of the deposit of $1,387.00 pursuant to the terms of the written contract of sale.

The trial judge found that Clement only consented to sign the purchase agreement because Bonfanti consented to make repairs to the boat and motor. He also found that Bonfanti failed to make these repairs and that this failure vitiated the consent between the parties and nullified the contract.

VALIDITY OF THE SALES AGREEMENT

In this appeal Bonfanti contends that the trial court committed error by allowing pa-rol evidence of the agreement to make repairs to modify the written contract of sale which did not contain such an agreement. Bonfanti also contends that the trial court committed error by not holding Clement liable for the deposit pursuant to the terms of the written contract. Because we resolve this case on another basis, it is unnecessary to rule on either assignment of error.

The pertinent portion of the sales contract provides that “This contract is not valid unless . . . approved by a responsible financial institution as to any financed balance.” 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). The meaning and intent of the parties to the written contract in such cases must be sought within the four corners of the instrument and cannot be explained or contradicted by parol evidence. La.C.C. art. 2276; Carter’s Insurance Agency, Inc. v. Franklin, 428 So.2d 808 (La.App. 1st Cir.1983); Tauzin v. Claitor, 417 So.2d 1304 (La.App. 1st Cir.1982), writ denied 422 So.2d 423 (La.1982). The promissory note and chattel mortgage signed by Clement clearly indicate an intention by Clement and Bonfanti to finance the balance due on the purchase price of the boat, motor and trailer with the Louisiana National Bank. Further, the purpose of the promissory note and chattel mortgage is described by Dominick S. Bonfanti, the President and General Manager of Bonfan-ti, in his testimony as follows:

Q. Can you identify document # 2?
A. This is a promissory note and chattel mortgage, by means of which we would secure a loan through Louisiana National Bank for the purpose (sic) of the boat, less the down payment.

Because the contract is not valid until approved by a financial institution, the parties’ obligations are subject to a suspensive condition. La.C.C. art. 2021. Because the suspensive condition is dependent upon a future and uncertain event, these obligations cannot be executed until the occurrence of the event. La.C.C. art. 2043.

There is no evidence in the record that financing the balance due on the purchase price was approved by a responsible financial institution. The contract, by its own terms, is not valid until the occurrence of this suspensive condition. Since the sus-pensive condition did not occur, the contract is null and void and unenforceable. Williams v. Enmon, 380 So.2d 144 (La.App. 1st Cir.1979), writ denied 383 So.2d 12 (La. 1980); Kansas v. Schaeffer, 299 So.2d 474 (La.App. 4th Cir.1974), writs refused 302 So.2d 616, 617 (La.1974).

CONCLUSION

For the foregoing reasons, the judgment of the trial court is correct and is affirmed at the appellant’s costs.

AFFIRMED.